Precision Concrete v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2003 Decided July 11, 2003

No. 02-1164

& No. 02–1203

PRECISION CONCRETE,

PETITIONER/CROSS–RESPONDENT

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT/CROSS–PETITIONER

SOUTHWEST REGIONAL COUNCIL OF CARPENTERS F/K/A

SOUTHERN CALIFORNIA–NEVADA REGIONAL COUNCIL OF

CARPENTERS, AND LABORERS LOCAL UNION NO. 872,

INTERVENORS

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Donald C. Zavala, Jr. argued the cause for petitioner.

With him on the briefs was Gerard Morales.

Michael H. Carlin, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Margaret A. Gaines,

Supervisory Attorney. Fred B. Jacob, Attorney, entered an

appearance.

David A. Rosenfeld was on the brief for intervenor.

Before: GINSBURG, Chief Judge, and SENTELLE and

HENDERSON, Circuit Judges.

Opinion for the court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Precision Concrete petitions for

review of an order of the National Labor Relations Board

holding the Company had violated §§ 8(a)(1) and (3) of the

National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and

requiring the Company to reinstate striking workers who had

unconditionally offered to return to work. We conclude that

the Board was without jurisdiction to consider the alleged

unfair labor practice it found was a cause of the strike, and

hence its order of reinstatement must be set aside.

I. Background

This case arises out of a campaign by a coalition of unions,

under the auspices of the Building Trades Organizing Project

(hereinafter the Union), to organize the employees of Preci-

sion Concrete, a family-owned construction company based in

Nevada. The Union began its drive in January 1997. Later

that year it filed against the Company unfair labor practice

charges that resulted in a settlement. The organizing drive

continued. In early 1998, the Union filed a fresh set of

charges alleging, among other things, that the Company had

discriminated against certain employees for their cooperation

with the Union in the settled case. In one such charge, filed

March 20, 1998, the Union alleged:

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On or about February 13, 1998, [Precision] interro-

gated employees, threatened employees with unspec-

ified reprisals, and invited employees to resign their

employment because they engaged in protected, con-

certed activities.

In July 1998, approximately 100 workers (a little more than

half the Company’s workforce) went on strike. The strike

was not successful; many workers crossed the picket lines —

leading to some ugly scenes that prompted a state court to

issue an injunction against the Union — and the Company

hired some replacement workers. By October, most of the

strikers had offered to return to work, but the Company

refused to take them back.

The Union filed a series of unfair labor practice charges

relating to the strike. In a charge filed September 17, 1998,

the Union alleged:

On or about August 25, 1998, [Precision] threatened

employees with termination and physical violence

because of their union activities.

After investigating these and other charges, the General

Counsel of the Board filed a consolidated amended complaint

alleging the Company had committed a variety of unfair labor

practices before, during, and after the strike. The complaint

included the following allegations relevant here:

On or about July 10, 1998, [Precision], by Juan

Pulido, threatened to discharge employee, Valentin

Mendez, because he wore a Union tee-shirtTTTT On

or about July 10, 1998, [Precision], by Juan Pulido,

told employee, Valentin Mendez, that he was being

transferred because he wore a Union tee-shirt.

An Administrative Law Judge held, among other things,

the Company had violated § 8(a)(1) of the Act on July 10,

1998 when its foreman, Juan Pulido, told Valentin Mendez he

was being transferred to another assignment because Mendez

was wearing a Union T-shirt, and Pulido ‘‘didn’t want any of

his team members wearing that kind of shirt.’’ Precision

Concrete, 337 N.L.R.B. No. 33, 2001 NLRB LEXIS 1060, *59

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(Dec. 20, 2001) (Order). The ALJ further concluded the T-

shirt incident was a cause of the strike and therefore all

striking employees, upon their unconditional offer to return to

work, were entitled to reinstatement with the Company. Id.

at *78; see Gibson Greetings, Inc. v. NLRB, 53 F.3d 385, 389

(D.C. Cir. 1995) (‘‘an unfair labor practice striker who uncon-

ditionally offers to return to work is entitled to reinstate-

ment’’). The ALJ ordered the Company to cease and desist

from violating the Act and to reinstate roughly 70 workers.

In exceptions before the Board, the Company argued the

ALJ’s reinstatement order could not stand because the T-

shirt incident was not the subject of a timely charge and

therefore, under § 10(b) of the Act, 29 U.S.C. § 160(b), the

Board was precluded from holding it an unfair labor practice.

The Board rejected that argument. Although it acknowl-

edged that the T-shirt incident was not the subject of any

unfair labor practice charge filed by the Union, the Board

held that the incident was sufficiently related to the allega-

tions in the March 20 and September 17 charges quoted

above to satisfy § 10(b). Order at *7–*8. The Company now

petitions for review, and the Board cross-petitions for en-

forcement of its order.

II. Analysis

Section 10(b) of the National Labor Relations Act provides:

Whenever it is charged that any person has engaged

in TTT [an] unfair labor practice, the Board TTT shall

have power to issue TTT a complaint stating the

charges in that respect TTT: Provided, That no

complaint shall issue based upon any unfair labor

practice occurring more than six months prior to the

filing of the charge with the BoardTTTT

29 U.S.C. § 160(b) (emphasis in original).

This section of the Act performs ‘‘two separate functions.’’

Ross Stores, Inc. v. NLRB, 235 F.3d 669, 677 (D.C. Cir. 2001)

(Randolph, J., concurring). First, it ‘‘sets down a condition

for the Board’s exercise of jurisdiction,’’ namely, that the

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Board, which here acts through the General Counsel, may

investigate and prosecute conduct only in response to the

filing of a ‘‘charge,’’ that is, a formal allegation made (by a

union, an employer, or an employee) against a union or an

employer. Id. Second, § 10(b) ‘‘functions much like a stat-

ute of limitations,’’ restricting the proper subject of any

complaint issued by the General Counsel to conduct about

which a charge was filed within six months of its occurrence.

Id.

As Judge Randolph noted in Ross Stores, failure to distin-

guish between those two functions can cause confusion, as it

has done, alas, in the present case. Throughout this litiga-

tion, the parties and the Board have framed the § 10(b) issue

as one of timeliness, when what is really at issue is the

limitation upon the Board’s ability to prosecute uncharged

conduct.

The Company initially objected to inclusion of the T-shirt

incident in the amended complaint on the ground that the

incident occurred more than six months prior to the filing of

the amendment. Order at *3. (The T-shirt incident occurred

in July 1998; the General Counsel filed the amended com-

plaint in March 1999.) The Board framed the issue as

whether the ‘‘otherwise untimely’’ allegation was ‘‘closely

related to a timely filed unfair labor practice charge.’’ Id.

Section 10(b) does not, however, restrict the General Coun-

sel to litigating conduct that occurred within six months of his

filing a complaint. Indeed, as far as § 10(b) is concerned, the

General Counsel may prosecute conduct about which a timely

charge was filed whenever the General Counsel gets around

to it. See NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d

Cir. 1952) (‘‘A complaint, as distinguished from a charge, need

not be filed and served within the six months, and may

therefore be amended after the six months’’). All the statute

requires with respect to timing is that the complaint be based

upon an unfair labor practice charge filed within six months

of the allegedly unlawful conduct.

The problem in the present case is that the T-shirt incident

was never the subject of any charge. That omission impli-

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cates the jurisdictional component of § 10(b): The Board

(again, acting through the General Counsel) may not initiate a

charge on its own; it may prosecute only conduct about which

someone else has filed a charge. See G.W. Galloway Co. v.

NLRB, 856 F.2d 275, 279 (D.C. Cir. 1988) (‘‘By precluding the

Board from initiating complaints without a corresponding

charge from an outside party, Congress apparently intended

to limit the Board’s activities to those matters shown to be of

concern to the very people the Act was designed to protect’’).

Whether one views the inquiry in terms of timeliness or of

jurisdiction, however, the ultimate issue, at least in the pres-

ent case, is the same: Is the T-shirt incident factually related

to conduct (timely) charged by the Union? Compare Gallo-

way, 856 F.2d at 280 (‘‘when the Board ventures outside the

strict confines of the charge, it must limit itself to matters

sharing a significant factual affiliation with the activity al-

leged in the charge’’), with Ross Stores, 235 F.3d at 672 (‘‘The

NLRB has long construed section 10(b), with judicial approv-

al, to permit prosecution of an alleged violation that was not

timely charged if it is ‘closely related’ to the allegations in a

timely filed charge’’). Nevertheless, the distinction between

the jurisdictional and temporal components of § 10(b) is not

of merely academic interest because it affects the burden of

proof upon the issue of relatedness. The Board considered

the Company’s timeliness claim as an ‘‘affirmative defense

that the [Company] failed to prove.’’ Order at *3. Without

passing upon the validity of that characterization, we note

that it is incumbent upon the Board to establish its authority

to act, at least once its jurisdiction has been put in issue.

See, e.g., Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 592 (D.C.

Cir. 1994) (‘‘Because the Board has failed to (nor could it)

establish a sufficient factual connection between the general

terms of the charge and the specific allegations of the com-

plaint, the Board’s order must be set aside’’); Drug Plastics

& Glass Co., Inc. v. NLRB, 44 F.3d 1017, 1022 (D.C. Cir.

1995) (‘‘Where the Board is unable to connect the allegations

in its complaint with the charge allegation, we are unable to

find that the Board has jurisdiction over the unrelated com-

plaint allegations’’). Because the issue before the Board in

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this case was its jurisdiction, the Board erred by placing the

burden of proof upon the Company.

Properly understood, the question for our resolution is

whether the Board has established that it had jurisdiction to

adjudicate the lawfulness of the T-shirt incident. Section

10(b) is not a straightjacket; the Board may, where appropri-

ate, ‘‘include allegations in the complaint that are not specifi-

cally asserted in the charge.’’ Galloway, 856 F.2d at 280.

The Board does not, however, have ‘‘carte blanche to expand

the charge as [it may] please, or to ignore it altogether.’’ Id.

(quoting NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959)).

A factual nexus between the charge and the complaint is

required.

In Fant Milling the Supreme Court set the standard of

relatedness as follows: the Board may prosecute unfair labor

practices which, although not specifically alleged in a charge,

are ‘‘related to those alleged in the charge and TTT grow out

of them while the proceeding is pending before the Board.’’

360 U.S. at 309. We subsequently restated the standard —

perhaps somewhat more loosely by omitting the requirement

that the unfair labor practice ‘‘grow out of’’ the conduct

charged — as requiring a ‘‘significant factual affiliation’’

between the charged conduct and the allegations in the

complaint. Galloway, 856 F.2d at 280.

The Board has further refined the inquiry. In Nickles

Bakery of Indiana, Inc., 296 N.L.R.B. 927, 928 (1989), it

adopted a ‘‘uniform requirement in all TTT cases that a

complaint allegation be factually related to the allegation in

the underlying charge.’’ In order to determine whether the

allegations of the complaint are factually related to those in

the charge, the Board asks: (1) ‘‘whether the TTT allegations

involve the same legal theory as the allegations in the TTT

charge’’; (2) ‘‘whether the TTT allegations arise from the same

factual circumstances or sequence of events as the TTT

charge’’; and (3) ‘‘whether a respondent would raise similar

defenses to both allegations.’’ Id.

In Drug Plastics, 30 F.3d at 172–73, we upheld the Board’s

test pursuant to Chevron U.S.A., Inc. v. Natural Resources

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Defense Council, 467 U.S. 837 (1984), as a permissible inter-

pretation of § 10(b). We have on several occasions, however,

disagreed with the Board’s application of the test — in Drug

Plastics itself, as well as in Ross Stores, Lotus Suites, and

Galloway. Two such cases are of particular significance here.

In Lotus Suites we held that the Board may not ‘‘issue a

complaint based upon a charge containing only a boilerplate

§ 8(a)(1) allegation TTT unbounded by specific facts’’ because,

with the charge ‘‘so lacking in content’’ it becomes ‘‘[im]possi-

ble sensibly to apply the test of ‘substantial relation’ between

the factual allegations in the charge and those in the com-

plaint.’’ 32 F.3d at 592. Then in Ross Stores we rejected the

argument that the second component of the Board’s test is

satisfied as long as both the allegations at issue arise out of

the same union organizing campaign. 235 F.3d at 674 (‘‘The

coincidence of the two separate violations during the same

organizing campaign does not of itself create a close factual

relationship’’).

In the present case, the amended complaint alleged that in

July 1998 a Precision foreman threatened to discharge or

transfer an employee for wearing a Union T-shirt. The

portions of the March 20 and September 17 charges upon

which the Board relied to show this uncharged conduct was

closely related to charged conduct stated that, on specific

dates in February and August 1998, the Company had

‘‘threatened employees with unspecified reprisals, and invited

employees to resign their employment’’ and ‘‘threatened em-

ployees with termination and physical violence because of

their union activities.’’ Order at *6. The Board thought it

sufficient that the allegations all ‘‘involve types of threatening

conduct by the Respondent’s unnamed officers and agents

occurring within a common sequence of events in a half-year

time span,’’ all arise under the same section of the Act, and all

implicate the same defenses. Id. at *7.

The Board’s conclusion cannot possibly be squared with our

previous decisions concerning the requirements of § 10(b).

Although the charges at issue are not mere boilerplate,

neither do they contain enough detail about the charged

conduct to enable us ‘‘sensibly to apply the test of ‘substantial

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relation.’ ’’ Lotus Suites, 32 F.3d at 592. All we can glean

from the record is that the March 20 charge involved interro-

gations and threats of reprisals by a foreman named Emilio

Pinal at the Sunset and Valley View jobsite, and the Septem-

ber 17 charge concerned an incident on August 25 — more

than a month after the T-shirt incident — in which Precision’s

president accosted strikers picketing ‘‘outside the gated con-

fines of his [residential] neighborhood.’’ Other than to ob-

serve that both of the charged incidents ‘‘involve types of

threatening conduct,’’ the Board has made no attempt to

demonstrate that the T-shirt incident shares a ‘‘significant

factual affiliation’’ with, Galloway, 856 F.2d at 280, let alone

‘‘grow[s] out of,’’ Fant Milling, 360 U.S. at 309, the charged

conduct.

The only link we can see is that the alleged incidents all

occurred during the course of the Union’s organizing drive in

1998. We have previously established, however, that a mere

‘‘coincidence of the two separate violations during the same

organizing campaign’’ is not enough. Ross Stores, 235 F.3d

at 674. Although the Board claimed to find more, Order at *5

(purporting to adhere to the ‘‘second factual factor as inter-

preted by the D.C. Circuit’’), in the end it pointed only to the

incidents having occurred ‘‘within a common sequence of

events in a half-year time span,’’ which adds nothing to the

facts held insufficient in Ross Stores.

Because the Board failed to establish the requisite factual

relationship between the charged conduct and the allegation

in the complaint regarding the T-shirt incident, it did not

have jurisdiction to adjudicate that incident. And the T-shirt

incident was the sole violation upon which the Board relied in

finding the Union struck in part because of an unfair labor

practice. Therefore, the strike could not be characterized as

an unfair labor practice strike and the strikers had no greater

right to reinstatement than economic strikers. The Board’s

order of reinstatement must be set aside.

III. Conclusion

For the foregoing reasons, we vacate the order of the

Board insofar as it found the T-shirt incident an unfair labor

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practice and required the Company to reinstate the striking

workers. We grant the Board’s cross-application for enforce-

ment of the order with respect to the unfair labor practices

not challenged in the Company’s petition for review.

So ordered.