# Reebie Storage and Moving Company, Incorporated, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner > Court of Appeals for the Seventh Circuit · January 12, 1995 · 44 F.3d 605 URL: https://www.frixlaw.com/law-library/cases/9487683 ## Case - **Full name:** REEBIE STORAGE AND MOVING COMPANY, INCORPORATED, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** January 12, 1995 - **Citations:** 44 F.3d 605; 148 L.R.R.M. (BNA) 2210; 1995 U.S. App. LEXIS 541 - **Precedential status:** Published - **Opinion:** Dissent by Will - **Judges:** Bauer, Posner, Will - **Cited by:** 3 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/9487683 ## Opinion text WILL, District Judge, dissenting. With regret, I dissent. The facts in this case clearly call for the relief which the ALJ and the Board ordered and which the court now reverses and vacates. As the opinion points out, Reebie was and is a member of the Movers’ Association of Chicago which had a master contract with Local 705. The union security clause of that contract required that all employees performing designated unit work be members of the union and receive the contract benefits including vacation, health, welfare and pension benefits. Notwithstanding, for a number of years, only twelve of the approximately thirty Ree-bie unit employees were recognized by Ree-bie to be union members even though, at one time, between twenty and twenty-five of them signed up to be members. Apparently, the arrangement by which only a minority of the eligible employees became recognized union members and received the contract benefits, was a private one between the Union’s secretary-treasurer and Reebie’s president. As a result, less than half of the eligible Reebie employees became recognized union members and received benefits although no grievances were filed against Reebie by the union. The contract between the Association, Reebie and Local 705 was scheduled to expire in March 1990. Reebie and the union began negotiating a new contract among themselves, the union now seeking to represent all unit employees and Reebie asserting, as it had in the past, that it could not afford to provide contract coverage and benefits to all of its unit employees. On March 22, 1990, Reebie informed its employees that the negotiations had reached an impasse and that the company intended to operate on the basis of its latest and final offer to the union. It also advised the employees that if a strike was called, any striking employees would be permanently replaced. The union then filed a charge with the Board alleging: (1) that Reebie had attempted to discourage employees from joining the union in violation of section 8(a)(3) of the Act; and (2) that Reebie, in failing to furnish information requested by the union, had refused to bargain in good faith and had violat *611 ed section 8(a)(5) of the Act. After an investigation of the charges, the Board’s General Counsel issued a complaint alleging that Ree-bie had: (1) discouraged its employees from joining the union by threatening them with discharge if they did and conditioning their future employment on resignation from the union; (2) failed to provide the union with information which it needed for collective bargaining negotiations; and (3) applied the terms and conditions of the contract to union members only and thereby encouraged union membership although making clear that it could not afford to have all eligible unit members be union members. The majority holds that the third ground, the only one on which the ALJ and the Board found for the union, was not sufficiently related to the grounds in the union’s original charge to permit the General Counsel to assert it in his complaint. As the majority opinion points out, there have been a number of decisions discussing under what circumstances the General Counsel may modify or amend a charge in filing a complaint. It is accurate, I believe, to say that there is no easy or bright line of demarcation. In NLRB v. Fant Milling Company, 360 U.S. 301 , 79 S.Ct. 1179 , 3 L.Ed.2d 1243 (1959), as the majority points out, the Supreme Court specifically noted that, because the role of the General Counsel is to vindicate public rights, he should have and has the right to amend the allegations in a charge to reflect the information obtained as a result of his investigation. This court, as the majority also points out, has heretofore been quite deferential to the General Counsel’s discretion saying in NLRB v. Braswell Motor Freight Lines, Inc., 486 F.2d 743, 746 (7th Cir.1973), that “so long as the Board entered the controversy pursuant to a formal charge, it may allege whatever it finds as part of that controversy.” The exception to that rule was only that the complaint may not contain allegations which are “so completely outside of the situation which gave rise to the charge that it may be said to be initiating the proceeding on its own motion,....” NLRB v. Kohler Co., 220 F.2d 3 , 7 (7th Cir.1955), quoted in NLRB v. Complas Industries, Inc., 714 F.2d 729 , 733 n. 3 (7th Cir.1983). The General Counsel and the Board may allege violations not included in the original charge if the violations did not occur more than six months prior to the filing and service of the charge, and if the new violations are closely related to the violations contained in the charge. See Complas, 714 F.2d 729, 733 (7th Cir.1983), citing Indiana Metal Products Corp. v. NLRB, 202 F.2d 613, 619 (7th Cir.1953). Yet, even while requiring that the charge and the complaint be “closely related,” the court in Complas used the standards articulated in Fant Milling and Koh-ler, described above, to determine whether the complaint was closely related to the charge. The Board has developed a slightly more restrictive test to determine if the complaint is related to the charge. As the majority points out, the Board looks to see if the allegations involve the same legal theory, if the allegations arise from the same factual situation or sequence of events, and if the respondent would raise the same or similar defenses to both allegations. Redd-I, Inc., 290 N.L.R.B. 1115 , 1116 (1988). While the Supreme Court has not recognized the Redd-I test, under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-44 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984), we are obligated to accept an agency’s construction of a statutory provision if that construction is reasonable. The problem here, however, is that the Board specifically recognized and applied its Redd-I test in this case and found that the complaint and the charge were “closely related.” The Board’s findings and. conclusions are entitled to deference from the reviewing court if they are supported by substantial evidence in the record as a whole, even if the court could justifiably have made a differént choice judging the matter de novo. Universal Camera Co. v. NLRB, 340 U.S. 474, 487-88 , 71 S.Ct. 456, 464-65 , 95 L.Ed. 456 (1951). As will appear, I believe that, not only is its finding supported by substantial evidence, but that the Board was right. The union had requested information regarding “all employees performing any movers work.” (emphasis in original). As the Board noted in its decision, the employer *612 understood this request to Refer to all members of the bargaining unit, not just union members. See 313 N.L.R.B. No. 58, p. 2 n. 5. The Board concluded that the General Counsel, upon investigating the charge that the employer had refused to provide information concerning compliance with the contract, learned that, consistent with the union’s basis for requesting the information, the employer was not applying the contract to all unit members. The dissenting Board member thought that the record established that the union had requested the information because it discovered that the contract was not being applied to new union members, while the majority thought that the evidence established that the union requested the information because the employer had not applied the contract to all members of the bargaining unit. Even if we were to accept the conclusion of the dissenting Board member, the Board clearly “entered the controversy pursuant to a formal charge.” That charge alleged that the employer failed to provide information to the union, and the information which it failed to provide concerned the wages and hours of the employees in the bargaining unit. Even if the charge had been brought because of the employer’s failure to apply the contract to union members, a cursory investigation by the General Counsel would have uncovered the discrimination against nonunion members as well. In support of its conclusion that the complaint was sufficiently related to the charged conduct, the Board quoted at length from Fant Milling. That quote is worth repeating here: A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. NLRB v. I. & M. Electric Co., 318 U.S. 9, 18 , 63 S.Ct. 394, 400 , 87 L.Ed. 579 . The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act.... Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. (Emphasis supplied) 313 N.L.R.B. no. 58, p. 2, quoting NLRB v. Fant Milling Co., 360 U.S. 301, 307-08 , 79 S.Ct. 1179, 1183-84 , 3 L.Ed.2d 1243 (1959). The Board then noted that, while it does not have “carte blanche to expand the charge” as it might please, Section 10(b) only requires “that there be a ‘sufficient relationship between charge and complaint “to negate the possibility that the Board is proceeding on its own initiative rather than pursuant to a charge.” ’ ” 313 N.L.R.B. no. 58, p. 2, quoting Speco Corp., 298 NLRB 439 , 440 (1990), citing NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321 (5th Cir.1970). The majority here does not find, nor do I believe that it could, that the complaint was so completely outside of the situation which gave rise to the charge that it constituted the initiation of a new and different proceedings. Clearly, what happened here was that in the course of investigating the union’s charge, the General Counsel discovered the more complex and invidious course of Reebie’s and the union’s conduct. He then proceeded to file a complaint based on the facts disclosed by his investigation. The majority holds that the current test of the General Counsel’s discretion is whether the complaint is “closely related” to the charge, whether the allegations of the complaint arise from the same facts and involve the same legal theory and sections of the Act and whether the employer had knowledge of the issue in question. Applying that test, the majority finds that they do not, although they clearly arise from the same facts and, as unfair labor practices, involve violations of the same sections of the Act. Under the current test, I believe that the complaint, as *613 the Board found, clearly qualifies as “closely related” to the charge. The evidence presented to the Board indicated that the union had requested the information on all the bargaining unit members’ wages and hours because it believed that the employer was not applying the contract to all of the bargaining unit employees. The General Counsel, making a “full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights,” Fant Milling, 360 U.S. at 308 , 79 S.Ct. at 1183 , determined that the employer was discriminating against nonunion employees. It is for this reason that Wilson & Sons Heating & Plumbing, Inc. v. NLRB, 971 F.2d 758 (D.C.Cir.1992), cited by the majority, is not analogous to this case. The facts and grounds there are quite different than those here. In Wilson & Sons, the Board found that the employer violated the Act by refusing to comply with a union request to audit the company’s books, information which the Board understood was requested in order to verify one employee’s wages. The court of appeals reversed, finding that the Board’s conclusion that a relationship existed between the audit request and the one employee’s wage information was unsupported by the record. Once the court determined that no relationship existed, it concluded that a charge brought by the General Counsel of a unilateral change in the particular employee’s wages, which was time barred under § 10(b) unless it related back to the union’s charge, was not closely related to the audit request, and therefore could not relate back. Here, there was never a question that the information request was related to the unit employees’ wage and hour information. Instead, based on the complaint that the General Counsel brought once he investigated the failure to supply the information, the ALJ and the Board found that Reebie had violated the Act by applying the terms of the contract only to those employees it recognized as union members and not to those it did not recognize even though they had signed union membership cards and were performing the same unit work. The majority here relies on Wilson to inject a new element into the “closely related” test: i.e., whether the complaint reflects the charging party’s intent and whether the employer had knowledge of that intent. The majority states that “[a] request for data pertaining to the terms of employment of all unit workers is not inherently related — and certainly not closely related — to an allegation of discrimination in favor of the union. And "without any evidence to suggest that Reebie was aware of the connection, this argument, as in Wilson & Sons, must fail.” With all due respect, Reebie was well aware that the union was seeking information in connection with its efforts to have all unit employees become union members and receive the benefits of the contract. That precise issue was what had caused Reebie to declare the negotiations on a new contract at an impasse and refuse to bargain further and which caused the union to file its charge. It is inconceivable that Reebie didn’t know why the union sought the information here. In Wilson & Sons, the audit request issue was arguably relevant to whether the employer’s failure to provide audit information violated its duty to bargain. The court found that the employer did not violate its duty to bargain by failing to provide the information because it did not know that the purpose for the request was to obtain information relevant to the bargaining negotiations, i.e., wage rates. That clearly is not the case here. Reebie knew very well that the information related to the only issue in the case, the disparate treatment of some unit members. Prior to this case, we have not required that the employer be made aware by the charge of the specific violations eventually included in the complaint, only that these violations be closely related to the charged conduct. This new requirement is unprecedented, and, I believe, in direct contradiction with the holding of Fant Milling. It is totally inconsistent with the breadth of General Counsel and Board discretion defined in that and succeeding eases. Moreover, as previously indicated, the last thing Reebie could seriously contend here is that it was unaware of the sole issue in the case, the difference in *614 treatment between union and non-union employees performing the same work. The Board correctly concluded that the General Counsel had not proceeded on his own initiative, but rather as a direct result of his investigation of the charge. The majority, by reading the “closely related” requirement more narrowly than intended by the Supreme Court in Fant Milling or in any of the succeeding eases including Redd-I and Wilson & Sons, substantially proscribes the Board’s authority to protect employees’ rights. It applies a highly technical standard which is reminiscent of the days of common law pleading and which is clearly inconsistent with the holding in Fant Milling and later cases that the General Counsel and the Board, in order to carry out their duty to vindicate public rights, have discretion to amend the allegations of a charge to reflect the information obtained in the course of their investigation so long as it cannot be said that it constitutes initiating a new proceeding on their own motion. What the majority does here, applying this highly technical standard, is to prevent the Board from vindicating the rights of those employees who, despite a collective bargaining agreement establishing the terms of their employment, found themselves deprived of the benefits thereof by their employer. The majority apparently recognizes that the situation at Reebie may well violate the National Labor Relations Act when it says, maj. op. page 610, that it does “not mean to comment on whether the arrangement between Reebie and the Union was lawful.” Depriving more than half of the eligible employees of their right to join the union and to obtain the benefits under the contract to which they would be entitled most certainly is inconsistent with the Act. To remedy that situation, the Board entered its order requiring the company to permit all eligible employees to exercise their rights to be recognized as union members and to make whole all eligible non-union employees for any loss of wages, health and welfare, pension, vacation or other benefits they would have received as union employees. The majority now erroneously denies enforcement of that order thereby depriving a substantial majority of the Reebie employees of the benefits to which they are entitled and relegating them to start all over in their efforts to secure their rights under the Act. I therefore dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487683. Public record. Not legal advice.