Brief for the NLRB — National Labor Relations Board v. Fant Milling Co.

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A. The a. ae.

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3 oe CITATIONS

Cases: SS | rec

Boeing Airplane Co. v. Aeronautical Industrial Diet,

_-91-F. Supp. 596, affirmed, 188 F. 2d 356, certiorari

Brewster v. Gage, PT Ce ccssveaseanubnaiate |

— las atten Sater Citations

Globe Cotten Milka © National Labor Relations Board,

Se... , uiiemmanaidiiahbelaaal |

Great Southern Trucking Co. v. -National Labor Rela-

tions Board, 127 F. 2d 180, certiorari denied, 317

=o andinkeds p> deaphiaadaain ataniaipdia ecapaiaiat

H. J. Heinz Co. v. National Labor Relations Beard,

110 F. 24843, affirmed, 311 U.S. 514..---.----25- %

_ Helvering v: R. J. Reynolds Tobacco Co., 306 U.S. 110... :

—e v. National Labor Relations

Board, 119 F. 2d 20_. eae Sere aS |

“é

49e270—5o-—1 ; (1

Kansas Milling Co. v. National Labor Relations Board,

eg SRM a A al Gh gE ena target eb eee

‘Local 1111 v. Allen-Bradley Co., 255 Wis. 613, 39

i :

Mastro Plastics Corp.-v. National Labor Relations

. Board, 350 U.S. HO cccvwenesesicscecscnncscte

May Dept. Stores v. ‘National Labor Relations Board,

S38 US. 376........ evitivdoehinkadcecdabueewe i,

Medo Photo Corp. v. National Labor Rela’ ‘ie Beads:

4 Sy GG ida chcenddicediewcddevwawewe< i

_ National Labor Relations Board v. Berkley | Machine |

Works & Foundry Co., 189 F. 2d 904... -2--2- 2.

National Labor Relations Board v. Bradley Wash-

fountain Co., 192 F. 2d 144___--- (Pitadadtacewn« ;

National Labor Relations Board v. Century Cement Mfg.,

Co., 208 F PL Me bide enenckne cuwunseaaamad ee

National Labor Relations Board v. Crompton-Highland

Mills, 337 U.S. 217_...--- palin hg poy oe <9 oma apap vives BQ -

National Labor Relations Board v. Epotein, 203 F. 2d

_ 482, certiorari denied, 347 U.S. 912..........<._=

National, Labor Relations Board v. ‘Express Pub. Co...

111 F. 2d 588, reversed, 312 U.S. 426.._.....__-- 7

National Labor Relations Board v. Gaynor News Co.,

197 F. 2d 719, affirmed, 347 U.S. 17..__..---.- ,

National Labor Relations Board v. Gullett Gin Co., 340

_ Oe pitta cideckwabennie kaneies

National Labor Relations Board v. LBS. Mip Co.,

- 210 F.2d 634...-- chain aann dated ea

National Labor Relations Boord v. Indiana & Michigan

- Bite On., SOB OG. ©. . «22. a cence cece ccns

National Labor Relations Board v. Kingston Cake Co.,

I i oe ah inns nls eee a wekeon

National Labor Relations Board v. Knowville Pub. Co.,

. OT GI. 5 << vod ncacccdeccecovecoceceaxs.s .

__ National Labor Relations Board v. Kobrite, 193 F.

2d Diivthadcesaywheadebawnecundewedowe weeds

. it

Gettin 3 : —

Neticiial Laker Iidietione Bowed ¥. ik Pilling & i

es a) Seen 24

National Labor Relations Board v. Reed & Prince Mfg.

Co., 205 F. 2d 131, certiorari denied, 346 U.S. 887... 25

National. Labor Relations Board v. Tex-O-Kan Flour

i gf Se FE F ethene eee 16...

National Labor Relations Board v. Tower Hosiery Mills,

‘. Ine., 180 F. 2d 701, certiorari-denied, 340.U.S.811.. 24 |

National Labor Relations Board v. Truitt Mfg. Co., 351 ee

National Labor Relations Board v. F. W. Woolworth Co., Boas

352 U.S. 938, reversing 235 F. 2d 319_-_.-_--- ee ‘24

National Licorice Co. v. National Labor Relations Board, |

§os Se eee - 11-12, 13-14, 16, 17, 21

Textile Workers Union v. Lincoln Mills, 353 U.S. 448.. 23

_ Universal Camera Corp. v. National Labor Relations’ *

Mead O00 GB. O18. 6 on nicn sno cceecccn cscs 18,24,25

’” Wheatland Electric Coop. Inc. v. National Labor Rela-~ ~ ~~~" ~~

tions Board, 208 F. 2d 878, certiorari denied, 347

White'v. National Labor Relations Board, 255 F. 2d 564. 25 -

Statutes: .

National Labor Relations Act, as amended (61 Stat.

136, 29 U.S.C. 151, et seq.):

tka thewebecendstiseactessens <a 20

IE. ono cacacdeuticsecoses ees ie

GE iciidintiewssandnennenns jcudeanva 2

NNR EEE Se Se ROR DO 3, 18

ras a a ain esas 18

Miscellaneous:

29 C.F.R., Sec. 191.6, 1949 ed... -.-.---.------+--- 22.

93 Cong. Rec. 4283 ____- sa iaeceaieis bipineammadialianasinahwataraiess 17. .

Cooper, Administrative Law: The “Substantial Bi-

_ dence” Riile, 44 A.B.A. Journal (October 1958), 945- 25

H. Conf. Rept. No. 510, 80th Cong., ist Sess., p. 53, /

a ea auiecucuanons 17

—S. Rept. No. 105, oes ENR. 00 ew, p. 26, viag.

Hist., p.-432_....--- eiseneishenson ‘ cxeeeuaeaye 17

oi

| Jn the Sayreme Gourt of the Gisted Sates

Ocroser ‘Term, 1958

NationaL Lasor RELATIONS. BOARD, PETITIONER

«= ° : ' y, - ‘ ;

- Fant MILLiIne CoMPANY

id “e °

' ON WRIT.OF OBRTIORARI TO THB UNITED STATBS COURT OF

APPEALS FOR THE FIFTH OIROUIT

BRIEF FOR Pm marion rasn RELATIONS BOARD ......

OPINIONS BELOW

‘The opinion of the court of appeals (R. 588-552) is

not yet reported. The findings of fact, conclusions of

law, and order. of the Board (R. 117-129,.137-182)

are reported at.117 N.L.R.B. 1277. —

> | ° JURISDICTION |

The cougt below entered its judgment on, August

1, 1958 (R. 553). . The petition for a writ of cer-

- tiorari was’ granted on December 16, 1958 (R. 554).

- The jurisdiction of this Court is invoked under 28 —

U.S.C. 1254, and Section 10(e) of the National Labor

- Relations Act, as amended. -

3 QUESTION PRESENTED 3

A union, certified by the Board, filed a charge. al-

leging that the employer was not bargaining in good

Peis 3 (1)

ah Seek . spect to wages,hours, and other terms and con-

9

y oF

faith. . ‘The Board i in due course. pp weer an investi

: gation and issued a complaint alleging that the em-

ployer had vio ated its : bargaining obligation. ‘The |

uestion presented is whether the Board in'formulating _

complaint i is TC ee ‘by a ‘requirement that it

; hi itself to the specific facts recited in the charge,

or whether it may place substantial reliance upon events ,

| occurring after the filing of the charge which were un-

_ eovered during ‘the course of the ae i

_ STATUTE INVOLVED ;

The relevant provisions of the National Labor Re-

lations Act, as amended (61 Stat. 136, 29 = 8. Cc.

- 151, et seq. )‘are as follows: eis pais

UnFar Lapor. PRACTICES :

- Sec. 8 (a) It shall be an unfair labor practice 7

for an employerS° Ce cae |

= * ee ° re s i

@. (6) to ‘Yefise to bargain. collectively with the

representatives of his- or subject to the

_ provisions of, section 9(a),.- ei :

-# -- @ Se _ ey

(d) For the pur poses thtd section, to bar-

a : gaty’ collectively is the performance of the mu-_

tual obligation of the employ yer and the. repre-

“sentative of the em ployees to meet :.at. reason-

‘ able times and confer in good fatth with re-

_ ditions: of. employment, or the negotiation of an

— agreement, On; an y" question arising, thereunder,

'The provisions printed in’ italics” were added by the Taft-*

Hartley amendments of 1947; the remaining Provisions were in

the original Act, 49. Stat. Pk i

Ar aS, ws ; -°

a ‘eo r F \

teks oe

7 ae,

and. the execution of a wiitien: doiatninde incor- —

porating any agreement reached if requested

by. either -party, but such obligation does’ not |

compel .cither party to agree to a proposal or _

require the making of a concession * maemo ec:

_ PREVENTION OF Unvar. Lapor’ Paidretes

~ Sec. 10. (b) Whenever it iacharged that any

. person has engaged in or is engaging in any

. such unfair labor practice, the Board, or | a

agent or agency designated by the Board for

‘such purposes, shall haye power to issue and

~ cause to be served. upongeuch person a com-

plaint stating the charges in that respect, and:

_ containing a notice of hearing before. the Board

or a member thereof, or before a designated ©

agent or agency, ata place therein fixed, not

less than five days after the serving of said

complaint: Provided, That no-complaint shall.

tssue based: upon any unfair labor practice

Occurring more than st; months prior to. the

filing of the charge ith the Board and the

_ service of a copy Paw upon the person

'; “against whom’ such charge is made, unless the -

person aggriev ed thereby was prevented from

filing such charge .by reason of service in the

armed forces, in’ ‘which event the sig-month pe-

riod ‘shall be computed from the day of his }

discharge.. Any such complaint may. be amend- ~ °

ed by the member, agent, or agency conducting

‘the hearing or. the fy etd in its discretion at

any time prior to the issuance of an order: .

— thereon. tt .

> a

ote »* a sey

STATEMENT .

3

L ‘THE YINDINGS, CONCLUSIONS, AND ORDER OF THE BOARD

A. THE BARGALNING NEGOTIATIONS

“The ‘American Federation of Grain Millers, AFL-

CIO, herein ‘called the Union, won ‘a Board-conducted.

' election in June 1953, and became the certified bar-

gaining representative of respondent’s employees (R.

148, 190).. Thereafter, representatives-of the Union

and of respondent met in a series of approximately ©

twenty bargaining conferences between August 1953.

and November 1954, but failed to reach agreement on.

a contract (R. 148-153, 227-229). Prior to the com-

mencement of. these negotiations and on a number of

, subsequent occasions, respondent’s president’ in-

structed his negotiators to bear in mind that “he

‘would not sign a’contract” that contained-an arbitra-

" tion clause; that the contract must contain a no-strike

clause. with ‘a monetary. penalty for its breach ; and

that seniority was not to be the sole governing factor

in promotions or layoffs | (R. 164, 232-233, 259-260).

On one occasion respondent told the. Union that. the

‘monetary penalty” woyld apply only to strikes au-

thorized by the Union, but respondent later insisted

that the penalty apply ‘also to unauthorized strikes

(R. 366-368, 374-377). Sete, :

_ During the. cotirse of the negotiations, the Union

“made: repeated ‘unsuccessful requests for a 1 |

"employees in the unit, together with their classifica-

tions,’ wage rates, and dates of employment. These

requests were made on-.August 13, November 12, 1953,

and January 29, 1954, Before the. Union filed a charge

with the Board, and on July! 2 and October 15, 1954,

5

Pncan ip eer Ye a (R. 148-149, 160, 162, 19, a

' 196, 327-338, 377-380, 426-430, 458-460, 462-464).

In April 195$ during the courte of the negotiations,

and about one month prior to the filing of the Union's

¥ charge, the Company put .into effect certain wage ad-

_ justments for some of the employees without negotiat-

_ing-with the Union concerning the changes (R. 165, -

176-177, 19,/ 201-203, 247-248). Again in Octo- —

'- ber 1954, while negotiations were in progress but after

the filing of the charge, the Company, without notice

_. to or consultation with the Union, instituted a general

across-the-board wage increase (R. 119-120, 165, 175, |

19, 241-246, 249-454, 259, 478).’ The Company’s ac- -

tion in instituting these wage changes without prior

' negotiation with the Union on the subject was con-

sistent with the Company’s insistence throughout the

bargaining sessions (both before and after the filing

‘of the charge) that any contract it signed must pro-

vide for the Company’s right to raise wages without

any negotiation with the Union (R. 156-157, 159, 198— :

199, 203, 279, 281, 286, 289, 336-339, 397-399, 419-421).

Respondent on one occasion disclaimed any desire for

. power to’ make wage reductions, but.thereafter de-

manded that the contract authorize it not only to

“revise wages upward but also to lower them without —

bargaining with the Union (Re 334-335, 397-399).

- During the course of the negotiations the Company

repeatedly refused to incorporate certain practices of ©

long-standing into a contract. Thus. the Company ad-

?The details attending this action are. accurately set forth

. with full record references in the dissenting opinion filed i in the ~

court below {R. 552, n. 1).

496270592

“J

he

mitted that for many years it had followed the prac-

_tice of giving a paid ‘vacation of one week to its em-

, Ployees each year, and of paying slightly higher wages

* to employees on later shifts, and that it expected to

continue these practices, but it refused to coritract to

do so: (R. 320-321, 359-362, 369-371). Similarly, al- —

though the Company. stated. that it had never sought,

_ _ and did not intend in the future,.to avoid payment of

overtime by staggering’ the workweek (i.e., laying off

~ employees during the week and recalling them on Sat-

- urday),.it refused to incorporate a ‘‘no-stagger” clause

into any contract (R. 302-303, 368-369, (372-374).

In the course of the bargaining negotiations re-

.spondent did make certain ‘‘concessions.’’ Thus, re-.

spondent agreed. to pay overtime for work in excess.

of 40 hours in any one week as required by law (R.

304-305, 307-308, 198-199, 281); it agreed to refrain

from discrimination, restraint, and coercion against —

any employee because of widhebovabis or non-member-

ship in the Union (R. 330-31) ; it agreed to state in

the contract that “we will do our best’? to continue -

giving employees a one week vacation ‘with pay (R.

451); it agreed to give the Union. space on the plant

bulletin board (R. 346-347); it offered to agree to an |

arbitration clause providing it could be used. only

once'a year (R. 414-417, 421-423, 432) or in the al-

ternative a clause providing for arbitration where -

| both parties agreed. it. was necessary (R. 432).’

‘* These “concessions” should be compared -with the Union’s

expressed readiness “to. modify a gréat many” of its proposals

-(R. 526), as-exemplified in its agreement to a monetary pen-

alty, for breach of a no-strike clause, its willingness to abandon

: its arbitration proposal, its — of respondent's lias

4

“Phe last: bargaining session was held on October 15,

“1954. (R.: 161-162, 455-470). At this meeting, the

Union protested the Company’s action in granting,a

wage increase without notice to or consultation with

the Union (R. 120, 161, 460-462). Various other sub-

jects were discussed, but by. the end of the meeting

the parties had still reached no agreement as .to

whether the contract should contain an arbitration

provision, as to whether the contract should contain a

no-strike clause, and as to the extent to which senior-

. ity: should govern promotions and layoffs (R. 161-

162, 70). In addition, no agreement had been

vediehiad as to whether the eontract should include

commitments by respondent to continue its existing

practices with respect to paid vacations, shift differ-

entials, and regularity of working hours (R. 302-303,

- 320, 368-374). Respondent had also failed to. supply _

; the data repeatedly requested by the Union (supra,

p. 4). :

“When the parties met again on November 19, 1954,

the Company announced that it would no longer rec-

ognize the Union as the employees’ bargaining repre-

sentative and that it would not bargain further (R.

121, 162, 206, 472, 475, 478). The Company alleged

_ that it had received “word of: mouth”’ information

that the. Union no longer represented en of

' the employees (R. 207-209, 294-295, 476). .

B. PROCEEDINGS BEFORE THE BOARD

| On May 20,’ 1954, after several months of fruitless

| bargaining conferences, but prior to the Gctober wage

ance proposal, and ifs offer to reduce its vacation 1 request (R.:

"363, 401-402, 485). :

?

°°

- inerease unilaterally effeeted by respondent, - the |

Union filed and sefved an unfair labor practice —

charge, alleging that respondent “‘has engaged in and

is engaging in unfair labor practices” in that it-re-——

fused to bargain collectively and had discharged four

employees for union activities (R. 19-23). , By letter .

dated July 13, the Regional Director for. the Board’s .

Sixteenth. Region advised the Union that he. was ~

' fusing to issue a complaint, on the ground that ‘‘i

does_not appear that there is sufficient evidence as

violation to warrant further proceedings at this time”’

CR. 138, n. 2; 25). On or about July 31, the Union

requested the General Counsel of the Board to review

. such refusal ‘(R. 138, n. 2; 27). On January 24, 1955,

_. subsequent to the unilateral wage increase of October -

1954, and while the request for review was pending,

the Regional Director advised'the Union that ‘‘Upon

reconsideration of the facts and circumstances, and

- additional evidence furnished us in connection with

_ our investigation in the above matter, we have decided .

to withdraw. our refusal to issie Complaint with re-

spect to the 8(a)(5) allegation of refusal to bargain,

dated July 13, 1954. We shall proceed with our in-

vestigation’ in due-course”’ (R. 126; 80). On August

12, 1955, the General Counsel informed counsel for :

| the Union as follows (R. 125-126; 82-83) : , |

With respect to. the 8(a)(5) allegation of

refusal to bargain, the Regional Director ad-

vised the parties by letter dated January 24,-

) 1955, that he was withdrawing his dismisSal of

« _ the 8(a) (5) portion of the charge and was

continuing with the investigation thereof. All

further inquiries with respect to the 8(a) (5)

allegation should be addressed to the Regional

Director. Ss me

On August 17,’ the Regional Director issued ‘the com-

_plaint “herein,alleging that “On or about November — i

21, 1953 [six months prior to the filing of the charge],

_ and at all times thereafter, respondent did refuse and

continues to refuse to bargain collectively”’; that ““On

’ or about October 7, 1954, respondent, without notice

to the- Union, put into effect a general wage in-

erease”’; and that by those acts “Respondent did

engage in and is hereby engaging i in an unfair labor

practice,” violative of Section we a Be ‘ef the Act

(R. 85-89).

sohitg - ©. THE BOARD'S CONCLUSIONS AND ORDER

-Qn the basis of ‘‘all the relevant facts as shown by

the record in this case,’’ the Board, in agreement |

‘with’ the ‘Trial Examiner {R. 167-177), found that

Tespondent was not bargaining in good faith with the

_ Union, thereby violating Section 8(a) (5)°and (1) of

the Act (R. 118-127). The Board observed that the

general wage increase given by. respondent. ‘‘while

negotiations were still continuing, and in complete

disregard of the Union’ 8 representative status, pro-

vides the final insight into the respondent’s conduct

of negotiations with the Union” (R. 126).. Accord-

ingly, the ‘Board concluded that “after November 21,

+1958 '¢ @ . respondent. was merely going through the

motions of collective bargaining without a genuine

intention of trying to negotiate an agreement with

the Union as — = the provisions of the Act’’

(R126).

NY)

In so holding, the Board (one member dissenting) —

held that the ‘bargaining negotiations and the unilat- «

2 eral eral wage increase which occurred afterthe filing of —

the charge were properly. within the scope of the

complaint as the conduct involved was similar and

closely related to that involved in oe: charge (R.

| 123-125, 134-135).° ,

Accordingly, the Board eid the ‘Canisias to

cease and desist from refusing to bargain; to refrain

from interfering with the Union’s efforts to bargain; ;

upon request, to bargain collectively with the Union;

and to post’ appropriate notices (R. 127-129, 136-

137). | | :

z Il, THE HOLDING OF THE COURT BELOW

i

e court below, with one judge dissenting, set :

aside the order of ‘the Board (R. 538-549). Judge

Cameron, writing the opinion in chief, was of the

view that the unilateral wage increase of October

1954 was not pfoperly cognizable by the ‘Board as it

oceuyred after the: filing and service of the charge |

(R. 543-548). In ‘his view “* * * the complaint ©

must faithfully reflect the facts constituting the un-

fair labor practices as presented in the charge” (R.

543). He also approved the view of the dissenting

Board member that “but for the wage increase there |

would. be no case whatever against the respondent”

_ (R.. 540, n. 5, see also R.- 542-543). Chief Judge

Hutcheson, concurring, agreed with Judge Cameron’s

holding that the unilateral wage increase was not to

be ‘taken into account by the Board (R. 548-549). .

Judge Hutcheson further agreed that, but for the

wainnern } increase, the record was devoid of any basis

o,

4a

for the Board’s taig that respondent h had not bar-

gained i in good faith (R. 548). ;

ee udge ‘Rives, dissenting, was of the opinion that

respondent had been guilty of a refusal to bargain

within the six months preceding the charge, and that

in any event the unilateral wage increase occurring

* after the charge was properly considered by the

Board (R. 549-552). In his view, the holding of the

majority that such post-charge conduct was not cog-

nizable by the Board was “excessively teghnical and

restrictive, and if sustained, * * * will seriously —

cripple the Board in any effective enforcement of the

Ac é ” (R 551). 6 hes

a. SUMMARY OF ARGUMENT

Bader this Court’s holding. in the N witcuai Lico-

_ rice case, 309 U.S. 350, 369, thé Board was authorized

to include’ in its complaint unfair labor practices |

“which are related to those alleged. in the charge and

which grow out of them while the proceeding i is pend-

- ing before the Board.” The unilateral wage increases

involved in this case fall-within that rule, in that they

were a further manifestation of the Company’s refusal

to bargain, which was the gravameri of the charge, and

grew out of the‘'Company’s insistence during the course

of the bargaining negotiations on the freedom to act

unilaterally.

- The 1947 amendments made no. antieg | in the rule.

of the Licorice case. All the considerations underly-

ing that decision apply equally under the amended

‘Act, and Congress evidenced no dissatisfaction with,

_. or intention to change, the Licorice rule. The sole stat- »

oie pe any

ing the- unfair labor practices as presented in

12 -

utory valine viet to charges was to preclude wa

ance of a‘ complaint based upon charges fil ee

served over six months after the occurence of the

‘unfdir. practices charged, but both the language and

_ the legislative history of this provision show that it

was ‘designed to provide a period of limitations gov- _

_ erning past. violations, and not to alter the rufe of the ©

” Licorice case relating to violations which are “of the

~ game closs * * * as those set up in the charge and

were continuations of them in pursuance of the same

objects.’”’ 309 U.S. at 369.

The case should be remanded with tnihvtestsoise to

enforce the bargaining order in full. The. evidence —

that respondent was not bargaining in good faith is (

more than ample to support the Board’s finding. The

contrary view) expressed by the majority of the court —

below reflects /a clear misapplication of the standard of °

- judicial review declared by this Court and generally

applied i in other circuits.

.. THE BOARD’S COMPLAINT PROPERLY INCLUDED VIOLATIONS

‘COMMITTED AFTER THE FILING OF THE CHARGE _

ae The essence of the decision below is that the Board’s

- complaint “must faithfully reflect the facts constitut-

charge.” While the court acknowledges that a com- —

plaint may enlarge upon the charge to include post-

charge actiyity,. it is evident that the permissible area

. : P ° ‘ : : 3

. : 13

_ of enlargement which the court has’ in mind is the

mere ‘addition of details”. which are in line. with the -_

| general substance of the charge or are. merely the

“eulmination” of the events covered by the charge

(R. 545, N. 11, 547). ..In thus circumscribing the

scope of the compl t, the court below, in our. view,

“has failed to fuilow a controllirg decision of this

_ Court construing the statute, and has misconceived the

separate functions served by the sharge and the

complaint. |

In National Licorice Co. v.’ National’ kako Hele

“tions Board, 309 U.S. 350, 357, 367-369, this Court

| dealt with a question substantially identical -t to that

' raised here, namely, “whéther the jurisdiction of the

set up in the charge presented to the Board so as to

preclude its determination that [certain actions by the

employer] involved unfair labor practices, since both —

occurred after the charge was lodged with the Board.

***” 309.U.S. at 357. In that case the employer

argued (Petitioner’ s brief;i in No. 272, October Term,

1939, pp. 20-24), precisely as does the court below,

that the language of Section 10(b) authorizing the —

issuance of a complaint “stating the charge’ in that

. réspect”” means that “the complaint must faithfully

~" reflect the facts constituting the unfair labor practices

as presented: in the charge” (R. 543). This Court,

speaking through Mr. Justice Stone, unanimously re-

' jected the contention, stating Ss US. at $362)

Board is limited to such unfair labor practices as are. -

i+

' It is unnecessary for us to consider now how

far the statutory requirenent of a charge as a

’ condition precedent to & complaint excludes

from the subsequent proceedings matters exist-

ing when the charge was filed, but not included .

in it. Whatever restrictions the requirements

of a charge may be thought to place upon sub-

sequent proceedings by the Board, we can find

no warrant in the language or. purposes: of the

‘Act for saying that it precludes ‘the Board.

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.

Thg violations alleged ‘in the complaint and

found ‘by the Board were but a prolongation |

of the attempt to form the company union and

to secure the contracts alleged in the charge.

All are of the same class of violations as those

set up in the charge anil were continuations of

them in pursuance of the.same objects. The

.Board’s jurisdiction having. been invoked “to

« deal with the first steps, it had. authority to

deal with those which followed as a conse-

quence of. those already#taken. ° We think the ©

court below correctly held that ‘‘the Board. was

within its power in-treating the whole se-

quence as one.”’ [Emphasis added.] ;

In the instant case, as in Licorice, the post-cHarge

-’ violations (granting of wage increases without prior

negotiations over them with the Union) were “‘of the.

same class of violations as those set up in the charge -

and were continuations of them in pursuance of the

- same objects.””. The charge alleged that the Company ;

“has engaged in and is engaging in’’ an unfair labor

| wy,

. — in that it “refused to iis colléetively” ,

(R. 20).° The unilateral wage ‘increase occurring: — |

after the filing of the charge was “‘of the same class

"of violations’? and a “continuation’’ thereof in that ies

it grew out of respondent’ s continued insistence on

freedom to act unilaterally (supra, p. 5), and con-

‘stituted a refusal.to bargain violative of. Section 8(a)

(5). National Labor Relations: -Board v. Crompton-

Highland Millis, 337 U.S. 217, 223-225; May Dept.

Stores y. National Labor Relations Board, 326 U.S...

376, 385. As those cases establish, the employer’ sun- -

lawful action in, instituting a unilateral wage. increase’. -

while negotiations were continuing could serve but to

emphasize the claim advanced in the charge that tlie

eimployet.was _not_ approaching — the bargaining with

the good faith required by thé<Act. Under the Lico-

“rice vale, therefore, the Board: properly. included the

post-charge conduct in its complaint. -

‘ In @onfining the Board to the events Diéeod in ne :

charge, the court below has misconceived the separate

functions served by the charge and the complaint,

3 respectively. . Under the statute anyone may file a

charge, » It is not framed by lawyers with an appre- |

ciation of the legal significance of. the details of con-

duct. On the contrary, a charge may be filed by lay-

_ men, not infrequently semiliterate workers, who ‘may

be only dimly aware that in some way their rights are ©

being invaded. The charge ‘‘does not even serve the

pur of a pleading’’ but “merely. sets.in motion

Hache of an inquiry.’’ National Labor Rela- -

tions-Board v. Indiana & Michsgan Electric Co., 318

_ U.S.@, 18. To require a charging party to particu-

e

*- Fagency. vested by statute with the necessary inv

_ O-Kan Flour Mills Coi, 182 F. 24 433, 437 (CA. 5);

~ 40 pi ciany hea) yee |

‘ess each and évery act constituting # an unfit lab

practice .would. place upon him the burden and ex- .

_ pense of investigating and determining the full :

- ture and scope of the employer’s or ‘the union’s m

‘the latter ‘responsibility: upon the Board, a. public

| ‘gatory salibinaey: Moreover, to be abodl the. detail , :

sponsibility for framing the is -in the wl a mat-|

| ter which Congress left the Board to do: in the

eomplaint: _Nattonal Labor Relations .Board | v. PFexu-

_, Consumers Power. Company v. National Labor: Rela-

tions Board, 113 F, 2d 38, 42 (O.A. 6); Kansas Mill-

ing Co. v. National Labor Relations Board, 185 F. 2d. {

| 418, 415-416 (C.A. 10). tae

__ If, as the court below stated, the Se is to be

confined to the exact limits of the claimed. violations _ ;

set forth in the charge, then the failure of the charg: ..

ing party to allege certain violations would: ‘preclude .

their. development by’ the , Board, and the statutory

machinery would be restricted toa vehicle for the

vindication of. private, and not’ public rights. See .

National Licorice Co. v. National Labor. Relations

. Board, 309 U.S. 350, 362, and authorities there cited;

"gee also Medo Photo Corp. v. National Labor Rela-

tions Board, 321 U. S. 678, 687. a

‘The 1947 amendments to the Aet made no iat

» in'the rule of the Licorice case or with respect to: the

functions of a charge or complaint. As we have seen,

)

th 7

- the stators ae sinitaealinany the ome below in. |

attempted justification of its holding was in the origi-

nal Act,. and was. unsuccessfully relied on by the em- ° |

: ployer i in Licorice. The. only change in the pertinent

section “(see p. 3; supra). was - ‘the addition’ of a

proviso that ‘‘no complaint’ shall issue based upon.

_ any. unfair labor practice occurring more than 81x

' months prior to the filing: [and service] of the charge

“** #7 Phe 1947 amendment, accordingly restricted ae

the. Board’s power to. probe. events occurring more. —

- than six months. prior ‘to the filing and service of the

charge. Both the’ language, of ‘the proviso and its

legislative history show that it was designed only to...

provide a period of limitations governing past viola- .

tions and to extinguish liability. for.unfair lahor prac-......

tices committed more than six months prior to the

Licorice case relating to subsequent violatious.' is. in

ix month limitation refers only to acts that occur

fore the charge and does not prohibit the inclusion of

nilar or related acts happening after the charge.”

National Labor Relations Board Vv. Kohler Co., 220

F. 2d 3, 7-8 (C.A.:7); aceord: National.Labor Rela-

tions Board v. Epstein, 203 F. 2d 482, 485 (C.A. -3),.

filing of the charge. It. did not alter the rule of the .

certiorari denied, 347 U.S. 912, a case. which, . like |

_, that at. bar,. involved a post-charge unilateral wage

increase.

i N Othing in the amended Act suggests that aise

intended any drastic departure from the basic concept

that the Board, once its jurisdiction is inv oked, acts

4g. ae No. 105, 80th Cong’, ist Sess., p. 26, 1 Legislative |

‘History, p. 432; H. Conf. Rept. No. 510, 80th Cong,, ist Sess.,

ip. 53, 1 ia Hist. 557; 93 Cae Rec. 4283.

S

. “in the public interest, and, subject to the six months .

- . limitations period, its statutory responsibility to pro-

‘tect public rights is not limited by the contentions

of the charging private party. .On the contrary, the

7 amended Act: retains the. provisions ‘of the. origi

Act which give the Board. broad investigatory ‘power -

| (Section 11). It also retains the provision. which

permits the Board to amend its complaint at any time

_ + (Seetion 10(b)). The significance of these provisions:

.* would be seriously -curtailed if the Board were re- .

stricted to the precise violations St fahe acu ina |

charge. 2

The contention that the aniended Act added a re-’

quirement thatthe complaint: be limited to conduct —

' detailed in the ‘charge thus. ‘attributes t& Congress a

desire fundamentally to alter the purpose ite |

_ Served by a charge and indeed to the whole con-

cept of the Boayd’s role. - But legislative history-

tis. devoid of any evidence: that Congress intended so —

- drastic an alteration of the function of ‘the charge.

- On the contrary, tha legislative history, replete though

‘it is with reference to judicial decisions, Congress w

_ in a “‘mood”’ to modify (Universal Camera Corp. v..

National Labor Relations Board, 340 U.S. 474, 486- .

487), contains no “eriticism, indeed no mention, of the

Licorice case or the rule, there-latd down, evenAhough

_ Congress in amending the Act ‘expressly dealt with -

: the subject of ‘the charge.: Hence, it may fairly be

assumed . that Congress, apart from intending that.

prompt notice.ofs «pending iny vestigation be furnished

‘the prospective respondent by. service of. the charge.

did not otherwise change the function of the. charge, .

|] ae i

as: cuando and described by the: courts. N ationdl —

Labor Relations es v. Gullétt Gin Co., 340° U.S..

, 365-3665 Helv ing v. R. J. Reynolds Tobacco -

, 306 U.S. HO, 114-115; , Brewster v. Gage; 280 |

: US. 327, $37, * pes

i eS urged, however, that one. of the basic: pur-

- poses. of: the’ amended Act in providing for the filing

and service of charges within six months‘ of the al-

®

leged unfair, labor practices was to protect against :

* the resurrection of stale. chargesJong after the com-*

mission of the. alleged illegal acts when relevant evi- —

dence and records might no longer be available to the

alleged wrongdoer. This objective; the argument

lit is frustrated if the Board can enlarge upon. the

chatge so as to include in a complaint, ag here, mat-

' ters occurring after the charge and 11 months ‘prior

to the issuance of the complaint. The argument over-

looks the premise of the Board ’s position, namely

.that the complaint in enlarging upon the charge

| would be confined to such additional unfair labor

practices as are related to, or grow out of, those ‘al-

Jeged: in the: charge while the proceeding is pending

before the Board. The. charge would thus serve as

notice. to the alleged wrongdoer that his conduct with

respect to the alleged unfair labor’ ‘practices and re-

"lated activity is under investigation by the Board...

In this x, Se the argument of stale ¢harges and loss .

of ‘eviden material loses most, if not. all, its force.

This is particularly true in. the instant ease. The:

. charge filed here invoked the Board’s investigatory

' powers with respect to respondent’s negotiations and

bargaining solationaty with the Union. This rela- ,

ee eae

Tye se

tionship was a continuing one and covered the period

. both: before and ‘after. the charges. It would -be

. Wholly. artificial and outer keeping with the purpose

_ _ Of the statute to limit the Board’s invegtigation to

that segment of this continuing course of negotiations

which took place before the filing of the charge. And.

by the same token, respondent could hardly have as-

sumed with. reason that the investigation would not

-extend “to the. entire course of — ns with the

- Union.

As the disseriting judge i in ‘de court below correctly -

- observed, the effect of that court’s holding is to ‘“seri-

ously cripple ‘the Board in any effective enforcement

of the Act’’’(R.'551). In some: cases, to be sure, the

problem heré presented can be averted by the timely

filing of additional or amended- charges. In many

_ instances, -however,. this solution is impractical and

administratively ‘undesirable. Under the holding of |

| the court: below, each new bargaining i conference, each

_ new unlawful statement violative of Section 8(a) (1);

, , or each picketing: of a new neutral employer violative.

of Section 8(b) (4), ‘must be followed by a new or.

amended charge, placing an unnecessary burden both

on parties whose rights have, been invaded and on the -

Board’s administrative machinery designed to vindi-

cate’ those rights. Moreover, the new. matter -con-

tained in the charge may be uncovered. by the Board

in the course of its investigation, and the charging

party may be’una ve of it or of its legal signifi-.

eance. Once the has been apprised by a charge

that a situation exists: which warrants investigation

and threatens industrial peace, the development of the

>

21 |

siti‘tm ta ie henite ef the Board; iakdi not of private

‘litigants, Kansas Milling Co. v.-Nationcl Labor Rela-

tions Board, 185 F. 2d. 413, 415 (C.A: 10).. Beet

: dent from the foregoing that there is no basis for the

fears expressed by the court below that the position

“espoused here would “‘[leave] the Board and its agent

carte blanche to expand the charge as they might

_ please, or to ignore it altogether”’ (R..544). As this |

Court has made clear, the Board would be confined in |

its complaint to the unfair labor practices set forth

in a timely.charge and those “which are related to’

those alleged in the charge and which grow out of &

- them while the. proceeding is pending before the

Board” (National Licorice, supra, 309 U:S. at 369). |

This view of the statute is reflected in the holding.

of the Second Circuit, under the amended Act, that ~

the Board must be given “‘widé leeway for prosecut-

ing offenses: ‘unearthed by its investigating machinery,

set in motion by the original charge,’’* in the recogni-

tion by the Third and First Circuits that - Say

it would: hardly be consistent with the general Ms

investigatory nature of the action on the charge

to confine the subsequent eras to its

egations,*

and in the observation of th@Seventh Circuit * that “it

* National Labor Relations Board v. Gaynor News Co., 197

¢ ‘719, ‘721 (CA. 2), affirmed, 347 U.S. 17. |

‘Na Labor Relations Board v. Kingston Cake Co., 19}

F. 2d 867 (C.A. 8); National Labor Relations Board v.

Kobrite, 198 F. 2d 8, 15-16 (C.A. 1). :

- ° National Labor Relations Board v. Bradley pascal

Co., 192 F. 2d 144, 149. | | |

3

ig without signiiichnes that the complaint was broader

; Ls the a omgiaal: charge: de | :

2

“Ascunsing that the Court finds that the decision

below must be reversed, the question arises- whether ©

the appropriate disposition is to remand the case for

further proceedings; or with. instructions to. enforce .

‘the Board’s order: For the reasons indicated below,

. we submit that, in the circumstances of this. ‘case, the

-_ latter course should be followed.’ . : |

A majority of the, court below: (Hutcheson and

Cameron, JJ.) has already indicated that, apart from

the post-charge unilateral wage increase, it would set

aside the Board’s order as unsupported by the record. 7

. See opinion-in-chief, R. 540 -(n. 5); concurring ‘opin- a

- jon, R. 548." The dissenting member of the court

* Contrary to rpapondent’s contention in. its Brief i in Opposi-

tion, pp. 16-18, the complaint here was properly authorized.

~The Regional Director's dismissal of the charge on July 13,

1954, was promptly appealed to the General Counsel. While ©

the appeal was pending, the Regional Director advised the

_.. Union that he was reconsidering his dismissal of the charge

‘on ‘the bargaining issue and would proceed to investigate it —

fatther. Thereafter, on. August 12, 1955, the General Counsel

advised the Union that the bargaining charge: was being in-

‘vestigated by the Regional Director, and the complaint issued

five days later. Under these circumstances, even assuming

arguendo that the Regional Director could not act while the

matter was under review by. the General Counsel, the review

had been completed and the General Counsel had exercised his

power to “direct the Regional Director to take further action” .

at the time the complaint issued. See 29 CFR, Sec. 101.6,

1949 Ed.

* The Board's view as to the proper disposition of the case was

~— wey stated in the petition for sic ied 17, n. 6.

| below. (Rives, J.) was ‘seit of the other : view,

: stating that: “Without reference to subsequent

events’’ the record of pre-charge conduct “furnishes —

substantial evidence to support the Board’s finding . ©

that respontlent: refused to bargain in good faith”

_(R. 550). The issue thus posed as to the sufficiency

of the Board’s finding may properly be decided now

by this Court. To remand the case with this issue |

unresolved would only delay further. its ultimate dis- -

” position, and might well result in’ this Court’s being

_asked to consider. this case a second time.

The dissenting judge in the tourt below Peony

that “it is not-even debatable: that t the Board’s find- |

“ing” of bad faith bargaining is supported by the

‘record, and that ‘The proof, i indéed, goes beyond any ~~

-reasonable doubt” (R. 552). This mmusually strong —

language reflects a strong record. Aside from the

unilateral wage increase, the record: shows that the

employer (1) severely circumscribed the authority of ,

his negotiators, and hence refused to bargain at all

over bargainable. matters; (2) insisted on both a

no-strike clause and the omission of any provision for -

arbitration; " (3) repeatedly refused to embody i in an

1° Cf, Great Southern Trucking Co. v. National Labor -~

- tions Board, 127 F. 2d 180, 185 (C.A. 4), certiorari denied, 317

US. 652; Wheatland Electric Coop. Inc. v. National Labor

Relations Board, 208 F. 2d 878, 880, ‘$82 (C.A. 10); certiorari —

denied, 347'U.S. 966.

a Cf. Textile Workers Union v. Saisie Mills, 353 U.S. 448, :

455; see also Mastro Plastics Corp. v. National Labor Relations

Bewrd, 350 U.S. 270, ¥82-983; Local 1111 v. Allen-Bradley Co., .

. 255 Wis. 613, 617, 39 N.W. 2d 740, 742; Boeing Airplane Co.

v. Aeronautical Industrial Dist., 91 F. Sapp. 596, 608 (W.D.

Wash. ), — iss F. 2d 356 (C.A. 9), certiorari denied, 342

‘ Pe

Z4

- agreement existing practices of long stinditig: 3 4)

refused to make any binding agreement as to wage

‘rates but insisted on freedom of. unilateral: action ; *

~ (5) reversed its own position during the course, of the

conferences to espouse proposals more stringent than |

those it had hitherto urged (supra, pp. 4, 5);** (6) —

refused to agrée to any proposal for selecting a neu-

tral arbitrator, insisted on the Union’s ‘being liable

even for strikes it had not authorized, and repeatedly

refused to furnish relevant ta requested by the —

' Union €Cf. National Labor Relations Board*v. F. W.

Woolworth Co., 352 U.S. 938, reversing 235 F. 24 319

(C.A. 9)).. We respectfully submit that on this

_ record the Board’s finding of bad faith is amply sup-

‘ported, and that the holding below to the contrary’

- reflects a “‘gross misapplication” of the standard of

review laid down in Universal Camera Corp. v. Na- -

U.S. 821, As the arbitrator for the Ford Motor Company has

12 Cf.. National Labor Relations Board vy. Eupress Pub. Co.,

111 F. 2d 588, 589 (C.A. 5),-rev on other grounds, 312

U.S. 426; ey 7 Board ¥. Knooville Pub-

Co., 124 F. 2d 875,883 (C.A. 8); Globe Cotton Mille v. Na-

onal Labor Roléslons Board, 08 ¥. $494, 94 (CA. 5), |

' Cf. National Labor Relations Board v. Berkley Machine

' "Works-& Foundry Co., 189 F. 2d 904, 907 (C.A. 4).

H. J. Heine Co. v. National Labor Relations Board, 110

F. 2d 843, 845-846, 848 (C.A. 6), affirmed, 311 U.S. 514; Na-

tional Labor Relations Board v. George P. Pilling & Son Co.,

(119 F. 2d 32, 35 (C.A. 3); Inland Lime & Stone Co. v.

ational Labor Relations Board, 119 F. 294 20 (C.A. 7); Na-

tional Labor Relations Board v. Tower Hosiery Mills, Inc., 180 ~

F.2d 701, 705 (C.A. 4), certiorari denied, 3 140 US. 811.

==

‘tional Labor Relations Board, 340 U.S. ae

_ See the majority-and disseriting opinion in National

Labor Relations Board v. Truitt Mfg. Co., 351 U.8. ©

. 149, 153-154, 155 and compare the standard of review

adopted by the court below in this and other cases “

with the standard em i i

| Mfg. €o., 205 F. 9a 131, > vpttio:

_ U.S. 887, and followed by other circuits.”

The’ Board’s experience with the rule of review there laid —

down is reported in Cooper, Adménistrative Law: The “Substan-

| Hal Evidence” Rule, 44 A.B.A. Jovienal (October 1968) 906, exp.

- et 948.

'® National Labor Relations Board v. IBS. Mfg. Co., 210 F.

‘Sd 684, 680; White v. National Labor Relations Board, 265 ¥.

- Od 564, 570-574.’ Ts

* Natiohel Labor Relations Board v. Oontury Comens Mg...

' 208 F. Od 84, 85-86 (C.A. 2) and/Wheatland Electric Coop.

. AT Saver Say 4 008. 08, me (CA.

10). .

. ve

° 7

3 ae aes ie : Ge i

Fe ee ett ae F “g

f

. ‘

For the reasons stated above the decision of the

court below should be reversed, and. the cause re-

- manded with directions to enter an enforcement decree.

Respectfully submitted. °

‘J. Lee Rawxrs,

| - Sole tton General. :

3 ‘aeeOtee , | Sees

| General Counsel, Bee : ta

Tuomas J. McDexmorr, :

ef Associate General Counsel,

~ Dommcx L. Manors,

- Assistant General Counsel,

Frepenicx U. Reet, |

Attorney,

wae National Labor Relations Board.

_ Fesrvary 1959.

af

= 3

U. 8. GOVERNMENT PRINTING OFFICE: 1989.