Drug Plastics & Glass Co., Inc. v. National Labor Relations Board

SENTELLE, Circuit Judge,

dissenting:

The decision in this case depends on the construction and application of section 10(b) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 160(b) (1988). The relevant part of that section reads:

Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board ... shall have power to issue and cause to be served *176 upon such person a complaint stating the charges in that respect ... 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 Board and the service of a copy thereof....

Until today, this section imposed two limitations on Board authority; after today, I am not sure that it imposes any in this Circuit.

First, the statute on its face and as applied in prior circuit law “obliges [the Board] to await a charge before it may initiate an investigation or issue a complaint.” G.W. Galloway Co. v. NLRB, 856 F.2d 275, 278 (D.C.Cir.1988). The second limitation is adjunct to the first. Not only may the Board not issue a complaint without the filing of a charge, but “no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge.... ” Under todays opinion, the statute is re-written to add an exception to the limitations reading: “these limitations do not apply where an employee or his representative files a timely but utterly meritless charge that some other unrelated unfair labor practice has occurred.” As this new qualification on the limitations writes them out of existence, and is contrary to existing circuit law, I respectfully dissent.

I would briefly restate the factual background offered by my colleagues in the majority. On July 11,1991, the union representative filed a “Charge Against Employer” alleging, in to to:

The above named employer unjustly terminated Allen Rich Matthews because of his Union activities and support of the Union effort in the above named plant.

Allen Rich Matthews was discharged on or around April 26, 1991.

On September 3, 1991, with that charge as its supposed basis, the Board filed a complaint and notice against Drug Plastics alleging not only the firing of Matthews but also a list of approximately nine other allegations of unfair labor practices, none naming Allen Rich Matthews in any capacity and all occurring more than six months before the filing of the complaint. 1

After a hearing, an Administrative Law Judge (“ALJ”) issued an opinion dated May 20, 1992. The ALJ found that on the charge that Matthews was discharged because he “supported and assisted the Union ... the evidence is paltry to nonexistent.” ALJ op. at 11. Instead, he found that Matthews was fired for legitimate disciplinary reasons, most particularly that he was smoking near production in drug manufacturing in violation of the “extraordinary steps” that Drug Plastics took to insure that its products were “free from contamination.” However, the ALJ also found that Drug Plastics had committed six other acts alleged in the complaint. None of those acts were alleged to have involved Allen Rich Matthews. None were mentioned in the charge. None occurred within six months of the filing of the complaint. 2 , That would seem to me to end the inquiry and were I writing the opinion of the Court, rather than a dissent, I would stop there.

Under the plain words of the Act and under our decision in Galloway, the Board has no authority to investigate uncharged conduct. Granted, the Board is not rigidly bound to the exact language of the charge. The Supreme Court has recognized “that the Board is not precluded from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.” NLRB v. Fant Milling Co., 360 U.S. 301, 309 , 79 S.Ct. 1179, 1184 , 3 L.Ed.2d 1243 (1959) (internal quotation marks and citation omitted). But this does not give the Board “carte blanche to expand the charge as they might please, or to ignore it altogether.” Id. The majority’s opinion today gives that carte blanche. The majority’s claim that “Allen Matthews, the fired employee in the charge, was a victim of all but one of the other violations alleged in the complaint,” is true only in the most convoluted and irrelevant sense. That is, the allegations to which the majority re *177 fers each mention the company’s “employees.” The majority apparently reasons that since Matthews was an employee, anything involving employees was sufficiently closely related to come within the language of Font. Not only does Fant not support this construction, our decision in Galloway compels a contrary result.

The Galloway case is strikingly parallel to the present facts. In that case, as in this one, the unfair labor practice charge alleged the improper firing of a specific employee for protected union activity. The Board’s complaint added allegations concerning general anti-union activity by the same employer against its employees at the same plant. In that case, the claim of relatedness was stronger than this one, as the questionable allegations concerned events only one day earlier than the firing alleged in the charge. We specifically held:

It cannot be that allegations in a charge and a complaint having no more in common than that they concern the same employer and occur at the same location are sufficiently related to satisfy Section 10(b).

Galloway, 856 F.2d at 280 .

The supposed “unified campaign” distinction claimed by the majority changes nothing. Granted, the Galloway complaint did not allege that the allegations in question were “part of a continuing campaign by [the employer] against the union.” Maj. op. at 174 (quoting Galloway, 856 F.2d at 281 ). Not only can I not see that the addition of that language to a complaint would add anything, that language is not in the present complaint either. If its absence was critical to the holding of Galloway, which I do not concede, then the same absence would seem to doom the present complaint.

I would suggest to my colleagues in the majority that they read the full sentence quoted in part by them from the dissent of then-Judge Stevens in NLRB v. Braswell Motor Freight Lines, Inc., 486 F.2d 743 (7th Cir.1973). He stated there “[i]t does not seem to me that the fact that the same company, or even the same executive of that company, was involved in both transactions should be sufficient to supply the nexus.” More tellingly, he noted that “neither uncouth language nor a consistent antiunion purpose should be controlling; for at least the latter can always be alleged and I would suppose the Board’s jurisdiction should be tested by the General Counsel’s allegations rather than his proof.” Id. at 747 .

Indeed, the continuing anti-union animus can always be alleged. Even though here it was not, my colleagues have supplied it for the General Counsel and have held it sufficient. I would not. Therefore, I dissent.

. No charge reciting these allegations was ever filed.

. See footnote 1 supra.