# Gulf States Manufacturers, Inc. v. National Labor Relations Board > Court of Appeals for the Fifth Circuit · September 15, 1978 · 579 F.2d 1298 URL: https://www.frixlaw.com/law-library/cases/9464942 ## Case - **Full name:** GULF STATES MANUFACTURERS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 15, 1978 - **Citations:** 579 F.2d 1298; 99 L.R.R.M. (BNA) 2547; 1978 U.S. App. LEXIS 8997 - **Precedential status:** Published - **Opinion:** Concurring in part by Rubin - **Judges:** Skelton, Fay, Rubin - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Modified by Gulf States Manufacturers, Inc. v. National Labor Relations Board, 598 F.2d 896 (1979). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464942 ## Opinion text *1330 ALVIN B. RUBIN, Circuit Judge, concurring in part and dissenting in part: Because my brethren, albeit at great length, have, in my opinion, failed to adhere to the mandate of Universal Camera Corporation v. NLRB, 1951, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 , with respect to factual conclusions and the proper role of this court in reviewing labor policy determinations made by the Board, I must respectfully dissent. I. The Withdrawn Charges Issue The Administrative Law Judge held that charges, based on September, 1975, events and withdrawn in November, 1975, could be considered because they were reasserted in a new proceeding filed by the union on February 17, 1976, which was timely. Under the NLRB regulation relied upon by my brethren, quoted at p. 1308, supra, the withdrawal simply amounted to a dismissal without prejudice. None of us would say that such a dismissal of a lawsuit (without prejudice and with the court’s approval) would bar filing a new suit. It is difficult for me to understand why the similar dismissal of NLRB charges is governed by different principles, and, if it is, by what authority we should undertake to prescribe those principles in this situation. If I read the majority opinion correctly, it appears to assert: 1. No valid unfair labor charge by the union underlay the complaint filed in 1976 because: a. The union was barred by its stipulation from reasserting its withdrawn charges. b. The union was estopped, once it achieved recognition without company objection, from reasserting the withdrawn charges. c. The Board “became a party” to the stipulation when its Regional Director approved the withdrawal of charges and certified the union. 2. The Board could not conduct proceedings based on the February 17, 1976 charge in any event because: a. When the old charges were asserted in a new proceeding, this was not really a new matter because the charges asserted were old charges. b. NLRB regulations require the filing of “new” allegations to be treated as a “new” charge for limitations purposes. c. Thus, the new proceeding was really not being treated as a new charge, as required, and the Board, in violation of accepted principles of administrative law, violated its own regulations. Let us discuss the second matter first. The majority does not appear to me to read the regulations correctly. The withdrawal of charges disposes of them without prejudice. If they should again be asserted, this must be in a new proceeding. The limitations period must be applied to the subsequent filing; therefore, a new filing, if itself untimely, cannot be deemed timely because the identical charges were once timely filed and then withdrawn. The second filing is not a refiling of the same proceeding, but the institution of the identical charges in a new proceeding. The regulation does not refer to “ ‘refiling’ withdrawn allegations and a ‘reopened’ charge,” as my brethren assert, p. 1308, supra; it refers to the refiling of withdrawn allegations and a reopened matter, and says that the two must be treated as a new charge. The Board treated the 1976 filing in just that manner, as a new charge. That brings us to the question first addressed by the majority: could the Board properly hear charges in the proceeding when the union filed charges in 1976 alleging both the events recited in the prior proceeding and the subsequent refusal of the company to bargain in good faith? In my opinion, the Board acted within the range of its discretion. The November 5 stipulation, standing alone, should not affect the Board in any way. Even if the stipulation was a contract, and if the filing of charges violated the contract, there is no statute that pre *1331 vents the Board from acting merely because the charging party filed in violation of a contractual obligation. This did not constitute an unfair labor practice. My brethren cite no authority for their conclusion that the sanction for such a breach of contract is the automatic invalidity of any subsequent proceeding based on charges withdrawn pursuant to a stipulation. Moreover, it is at least arguable that, if the stipulation was a contract, it was bilateral, implied an obligation to bargain in good faith, and that the alleged failure of the company to do so was itself such a breach of contract as to terminate the union’s agreement. Nor do I perceive the basis for invoking an estoppel. It is not evident to me that a company, having withdrawn its objections to certification in return for the withdrawal of charges, is entitled, as a matter of equity, to perpetual immunity from those charges if, having agreed to formal certification, it then arguably refuses to bargain in good faith with the union. To me, the national labor policy embodied in the Act suggests the opposite conclusion. The Regional Director’s letter constituted merely approval of the withdrawal of charges, not approval of the stipulation or an agreement to be bound by it. It reads in full: “This is to advise that I have approved the Withdrawal Request submitted in the above matter.” Nor did certification of the union render the Board a party to the stipulation; the company having withdrawn its objections to certification, the NLRB was bound by law to certify the union. Contrary to the assertion in the majority opinion, I find no basis to conclude, “[T]he Board [was] legally and morally bound by the withdrawal arrangement.” P. 1307, supra. The NLRB takes the position that it is not estopped from considering charges withdrawn pursuant to a settlement unless the settlement itself has Board approval. John F. Cuneo Co., 1965, 152 NLRB 929 , 931 n. 4. The Sixth Circuit has accepted the Board’s discretion in such matters, NLRB v. Zimnox Coal Co., 6 Cir. 1964, 336 F.2d 516 , and my brethren cite no contrary authority. Of course, we are not bound by the Sixth Circuit’s decision, but it lends support to my own belief that, absent persuasive reason to the contrary, this type of question is within the Board’s discretion. NLRB v. Electric Furnace Co., 6 Cir. 1964, 327 F.2d 373 is inapposite. In the Electric Furnace Co. case, a timely charge was filed, a timely complaint issued, the charge was withdrawn, and the complaint was then dismissed. The issue was whether the timely complaint could support a later untimely complaint on the same charges absent the filing of any timely charge by the union. Here both the first and the second charges were timely. II. Refusal to Bargain This analysis requires me to consider whether the Board properly concluded, on the basis of the once-withdrawn charges, as amplified by the allegations of the company’s subsequent failure to bargain, that the Company violated Section 8(a)(1) of the Act. In my opinion, the record contains substantial evidence to buttress the ALJ’s opinion and the Board’s order based on the charges he reviews. The record contains substantial evidence also that the employer refused to bargain in good faith, in violation of Section 8(a)(3) of the Act. The ALJ’s opinion on good-faith bargaining can be read, in portions, as relying on an assessment of the substantive terms offered by the employer. However, where a charge of bad faith is predicated on accusations of “surface bargaining,” some reference to what the company actually proposes is inevitable. Further, unlike NLRB v. Tomco Communications, Inc., 9 Cir. 1978, 567 F.2d 871 , this case seems to me to present substantial independent evidence of anti-union animus and “gamesmanship,” as the ALJ called it. There is much to be said for the company’s position, and the majority opinion fully says it. Certainly there is not a preponderance of evidence to the con *1332 trary. There need not be; there was substantial evidence, and that is enough. Because, in my opinion, the Board properly concluded that the impasse in bargaining was the result of bad-faith bargaining, it properly decided that the company’s unilateral wage increase was an unfair labor practice. Similarly, I find substantial evidence to support its conclusion that the strike was motivated by an unfair labor practice, bad-faith bargaining, and that, therefore, the company’s failure immediately to reinstate the employees was itself an unfair labor practice. With respect to the final issue, post-strike violations of Section 8(a)(1), I concur with the disposition in Section IV of the majority opinion. It is not our function to make labor policy or to second-guess the NLRB. We are Universal-Camera -bound to view the facts through the Board’s lens. I respectfully suggest that the majority has failed to do so. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464942. Public record. Not legal advice.