# Gulf States Manufacturers, Inc. v. National Labor Relations Board > Court of Appeals for the Fifth Circuit · July 10, 1979 · 598 F.2d 896 URL: https://www.frixlaw.com/law-library/cases/9465785 ## 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:** July 10, 1979 - **Citations:** 598 F.2d 896; 101 L.R.R.M. (BNA) 2805; 1979 U.S. App. LEXIS 13308 - **Precedential status:** Published - **Opinion:** Concurring in part by Clark - **Judges:** Godbold, Fay, Gee, Clark, Vance, Rubin, Brown, Coleman, Goldberg, Ainsworth, God-Bold, Roney, Tjoflat, Hill - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465785 ## Opinion text CHARLES CLARK, Circuit Judge, concurring specially in part and dissenting in part: I fully agree with Judge Vance that the Board is not bound by the parties’ private settlement agreement and is therefore free to entertain “new and timely charges concerning the same conduct.” His analysis, however, stops short of considering whether the union’s refiling of the withdrawn charges in this case was “timely” under the six-month limitation period of § 10(b). The route taken by the majority eased it of the burden of exploring “the factually complex issue of the application of the statute of limitations to the various charges and numerous reallegations of charges.” The contrary conclusion, however, requires a determination of whether the date of refiling complies with § 10(b). The union’s November 11, 1975, withdrawal had the effect of removing from the Board all charges then pending for the employer’s alleged anti-union activities to that date. Thus, in order for a pre-November 11 activity to be the subject of the Board’s present complaint against Gulf States, it must have been resubmitted to the Board by a new union charge within six months of its occurrence. On February 17, 1976, the union filed its first post-settlement charge with the Board. In addition to listing several general allegations of anti-union activities occurring after the November stipulation, it alleged only an October 1, 1975, unlawful transfer of Johnny Oswalt. This reassertion of a withdrawn charge was clearly made within the permissible period of § 10(b), qualifying it as an appropriate subject of the Board’s subsequent complaint. On March 19, 1976, the union amended its February 17 charge to repeat a pre-stipulation general allegation of unlawful interrogation and solicitation of employees on September 15-17, 1975, and added a timely charge of post-settlement refusal to bargain. A second amended complaint filed April 20, 1976, restated these two paragraphs and added another timely charge that a February 16, 1976, unilateral wage increase was improper. The charge of unlawful interrogation and solicitation of employees occurring between September 15 and September 17 was not submitted to the Board within six months of occurrence. Then on July 2,1976, the union amended its charges once more. It repeated some of the earlier activities but added a paragraph, quoted directly from the original September 17, 1975, charge, alleging the unlawful layoff of thirteen named employees since September 15, 1975. These layoffs all occurred between September 15 and September 17, 1975, and were not put before the Board by the union, until July 2, 1976, long after the statute of limitations had run. *906 This is not the usual § 10(b) case. The union and Gulf States were not dealing at arms length. They had at one point com-' posed their differences in a settlement agreement under which the union withdrew charges and Gulf States forewent its objections to election and agreed to bargain with the union. When the Board included in its complaint specific charges which the union chose not to reactivate within the § 10(b) period, it ignored the settlement agreement by which Gulf States prejudiced its position. This circumstance of prejudice makes inapposite normal rules which permit the Board to include in its complaint other charges which are substantially related to those timely filed by the union. Cf. Texas Industries, Inc. v. N. L. R. B., 336 F.2d 128 , 132 (5th Cir. 1964). All charges filed with the Board here were submitted on the Board’s printed form — Charge Against Employer — which leaves a blank space for the specific facts underlying the charge, followed by the printed statement: “By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act.” If this “boiler plate” may be read to justify a Board complaint based on activities not sufficiently related to those specified in the form to be covered by operation of law, it would become so vast a catchall that it would drain the meaning from § 10(b). This court has previously recognized that the purpose of the § 10(b) limitation is “to prevent persons from being brought to book on stale charges and to promote industrial stability by allowing parties after the time prescribed as reasonable to assess with certainty their liability for past conduct.” N. L. R. B. v. Auto Warehouses, Inc., 571 F.2d 860 (5th Cir. 1978). See also, N. L. R. B. v. Zimnox Coal Co., 336 F.2d 516 (6th Cir. 1964); N. L. R. B. v. Pennwoven, 194 F.2d 521 , 525 n. 2 (3d Cir. 1952). Any attempt by the union to reassert charges now long stale is doubly prejudicial to Gulf States’ defense preparation because of the union’s voluntary withdrawal of charges for liability predating November 11, 1975. While the private withdrawal did not restrict the Board in basing a subsequent complaint on the same activities, it is not a license to ignore § 10(b). Although I concur in Judge Vance’s dissent, I would find that in this case those charges not filed within six months of their occurrence are time-barred under § 10(b). Thus, I would agree with the result reached by the majority in denying enforcement to the portions of the Board’s order based on the time-barred charges and would limit enforcement to those portions of the order based on the timely charges. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465785. Public record. Not legal advice.