# Drug Plastics & Glass Company, Inc. v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · January 27, 1995 · 44 F.3d 1017 URL: https://www.frixlaw.com/law-library/cases/9487694 ## Case - **Full name:** DRUG PLASTICS & GLASS COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 27, 1995 - **Citations:** 44 F.3d 1017; 310 U.S. App. D.C. 128; 148 L.R.R.M. (BNA) 2334; 1995 U.S. App. LEXIS 1551 - **Precedential status:** Published - **Opinion:** Concurrence by Rogers - **Judges:** Rogers, Sentelle, Silberman - **Cited by:** 27 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/9487694 ## Opinion text ROGERS, Circuit Judge, concurring: On rehearing, the court reaffirms that the appropriate time for determining the requisite relatedness of the complaint and charge allegations is at the time the complaint is filed. In so doing, the court also emphasizes the perils for the Board of relying on boilerplate language, albeit this time with regard to the complaint in addition to the charge. Cf. Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 592 (D.C.Cir.1994); G.W. Galloway Co. v. NLRB, 856 F.2d 275, 278 (D.C.Cir.1988). Absent allegations on the face of the complaint that make apparent their factual relationship to the allegations in a timely charge, the court holds that the Board’s decision in Nippondenso Mfg. U.S.A, Inc., 299 N.L.R.B. 545 (1990), bars it from relying on legal theory alone to link untimely complaint allegations. Before the original panel, the Board’s counsel “all but conceded” that the Board no longer approves of its reasoning in Nippondenso. Drug Plastics & Glass Co. v. NLRB, 30 F.3d 169, 174 (D.C.Cir.1994) (Drug Plastics I). New counsel for the Board candidly acknowledged on rehearing that Nipponden-so is alive and well but asserted that it is distinguishable. Such distinctions as are urged — see id. (discharged employee in Nip-pondenso was only peripherally subject to § 8(a)(1) violations alleged in the complaint, and the complaint did not refer to charge conduct) — however, do not substitute for a statement in the complaint indicating the requisite nexus between its factual allegations and those in the charge. See Galloway, 856 F.2d at 280 (requiring a “significant factual affiliation” between complaint and charge allegations); Nippondenso, 299 N.L.R.B. at 545. The charge refers only to Matthews’ discharge and his union activities; it neither alleges a pattern of anti-union activities by the employer nor that Matthews’ discharge was part of such activities. The complaint, in turn, while including the charge allegation regarding Matthews’ discharge, does not allege that Matthews’ discharge was related to the conduct that is the basis for the added statutory violations. Its boilerplate allegations — Complaint paragraphs 12 and 13 — assert that each of the acts complained of constituted a statutory violation; they do not indicate that the charge acts and added complaint acts are related to each other. 1 Missing from the charge and complaint is the factual relatedness required by § 10(b), *1023 see 29 U.S.C. § 160 (b) (1988), that is present, for example, in the Board’s post-Nipponden-so decision in Wosie Management of Santa, Clam Co., 308 N.L.R.B. 50 , 50 & n. 2 (1992). 2 The court does not suggest that the facts as found by the Board fail to show factual relatedness. Indeed, as shown in Drug Plastics 1, 30 F.3d at 174 , Matthews, as an employee, was personally subject to most of the § 8(a)(1) conduct alleged in the complaint. The problem arises because the proper focus for determining § 10(b) factual relatedness is on the allegations in the complaint, and the complaint here does not attempt to allege the factual relatedness of its allegations to those in the charge. Under Nippondenso, the vacuum cannot be filled by legal theory. Consequently, notwithstanding inclusion in the instant complaint of the charge allegation regarding Matthews’ discharge, the Board may not rely on a relationship between the charge allegations and the complaint allegations that is not apparent in either the charge or the complaint. It is thus crucial to recognize that this case hinges on a defect in the complaint, rather than on the facts themselves. It may well be that the additional claims in the complaint are sufficiently related to the charge regarding Matthews’ discharge in that they were all “part of an overall plan to resist union organization.” 3 Waste Management, 308 N.L.R.B. at 50 (quoting Well-Bred Loaf, Inc., 303 N.L.R.B. 1016 , 1016 n. 1 (1991)). However, because relatedness must be determined from the face of the charge and complaint, and because those documents in the instant case do not indicate any relationship between the alleged discharge and the additional claims in the complaint, the additional claims are untimely. . The one possible exception is in Paragraph 13, referring to both Matthews’ discharge (Paragraph 11) and the wage increase complaint allegation (Paragraph 10). But, the Board dis *1023 missed the wage increase allegation and, hence, neither it nor Matthews' discharge are part of the enforcement order at issue. . In Waste Management, [t]he charge consisted of specific allegations of unlawful grants of wage increases and threats of retaliation against employees for their support of the Union; but it referred to these as part of [the employer's] "interfer[ence] with the freedom of the employees to make a fair choice of representation” during “the course of an election campaign....” Although the complaint alleged acts of interference different from those specifically alleged in the charge, the reference in the charge to [the employer’s] interference with the particular organizational campaign was sufficient to support the complaint allegations that [the employer] sought to undermine and discourage employee support for the Union by interrogating employees, soliciting grievances and impliedly promising to remedy them, and soliciting employees to campaign against the Union. 308 N.L.R.B. at 50. The Board noted that Nip-pondenso did not compel dismissal of the complaint because in that case "neither the allegations of the charge nor the complaint placed at issue acts that were all part of an overall plan to resist union organization." Id. n. 5. . To this extent the instant case differs from Galloway. While the court points out the close temporal relationship between the charge and complaint allegations in Galloway, the additional allegation in the Gallovgay complaint was not factually related to the allegation in the charge, 856 F.2d at 278 & n. 21, because they had no more in common than that they concerned the same employer and occurred at the same location. Id. at 280 . In the instant case, the allegations were more factually related because they involve the same employee and the same anti-union campaign. However, this factual relatedness is irrelevant to our inquiry because it is not apparent on the face of the charge and the complaint. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487694. Public record. Not legal advice.