DRUG PLASTICS & GLASS COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 93-1013.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 6, 1994. Decided Jan. 27, 1995.
1017
Linda Dreeben, Supervisory Atty., N.L.R.B., argued the cause, for respondent. With her on the brief were Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Deborah E. Shrager, Atty., N.L.R.B. David S. Habenstreit entered an appearance, for respondent.
Before SILBERMAN, SENTELLE, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Concurring opinion filed by Circuit Judge ROGERS.
SENTELLE, Circuit Judge:
Drug Plastics & Glass Company (“Drug Plastics“) petitions for review of an order of the National Labor Relations Board (“NLRB” or the “Board“) remedying unfair labor practices under Section 8(a)(1) of the National Labor Relations Act (“NLRA“),
I. BACKGROUND
Drug Plastics, a Pennsylvania manufacturer of plastic bottles for pharmaceutical use, discharged employee Allen Matthews in April, 1991, after a company vice-president learned that Matthews had been smoking on the production floor in violation of company policy and that he had failed to attend certain quality control meetings. Prior to Matthews’ discharge, in January and February, 1991, petitioner had been the subject of modest, ultimately unsuccessful union organizing activities by the United Rubber, Cork, Linoleum and Plastic Workers of America, District No. 1 (the “Union“), in which the Union failed to convince a single Drug Plastics employee to sign an authorization card.
On July 15, 1991, the Union filed with the NLRB an unfair labor practice charge, alleging the following violation of
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.
No other allegations were included in the charge.
In March, 1992, the NLRB conducted a hearing before a Board Administrative Law Judge (“ALJ“) in Philadelphia, Pennsylvania. Drug Plastics defended its dismissal of Matthews on the grounds that Matthews broke company policy when he smoked on the production floor, failed to attend a “pre-control” meeting required of employees, and exhibited excessive absenteeism during the first three months of 1991. With respect to the separate § 8(a)(1) allegations in the complaint, Drug Plastics entered a general denial and moved for dismissal, arguing that the allegations were time-barred by
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 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 service of a copy thereof....
After the hearing, the NLRB ALJ rejected Drug Plastics’ time-bar defense, concluding that the allegations in the complaint bore a sufficiently close relationship to those in the charge to satisfy the timeliness requirements of § 10(b). He found, however, that Allen Matthews had not been active in any Union organizing campaign and that the company discharged him for good cause, thus dismissing the unlawful discharge allegation which formed the basis for the Union charge. With respect to the other allegations, the ALJ concluded that Drug Plastics violated § 8(a)(1) in the plant closure threats by Tim Matthews and Fred Beisicker, the discharge threat by Bill Mellen, and the solicitation of grievances and threats of surveillance by Glenn Forte. All of the remaining allegations were dismissed. Drug Plastics filed exceptions to the ALJ‘s decision with the NLRB. The NLRB affirmed the ALJ‘s decision in full. Drug Plastics petitioned this court for review of these decisions under
II. DISCUSSION
Drug Plastics’ argument is straightforward. Under
But Fant Milling does not give the Board ”carte blanche to expand the charge as [it] might please, or to ignore it altogether.” Id. at 309. The Supreme Court in Fant Milling expressly “h[e]ld only 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.‘” Id. (emphasis added) (quoting National Licorice Co. v. NLRB, 309 U.S. 350, 369 (1940)). Thus, as we noted in G.W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C.Cir.1988), “[W]hen the Board ventures outside the strict confines of the charge, it must limit itself to matters sharing a significant factual affiliation with the activity alleged in the charge.” Id. at 280 (emphasis added).
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. Id. at 277. 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, but 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).
Nothing offered by the Board in its opinion or even in its defense before this court establishes the “significant factual relation” required by Galloway. See Galloway, 856 F.2d at 280. In fact, the only relationship found by the Board was that all of the events underlying the allegations were in response to the same “anti-union campaign,” and that Matthews had been subjected to some of the alleged discriminatory statements. Drug Plastics & Glass Co., 309 NLRB 1306, 1306 n. 2 (1992). The General Counsel‘s complaint, however, makes no mention whatsoever of Matthews, except in the single allegation from the charge. At our first hearing, when it was pointed out to the Board that the evidence did not support the allegation of that single count, the Board urged, and we agreed, that we should view the relatedness of the charge and the complaint at the time of the allegations. On this one point, the original panel was unanimous. See Drug Plastics I, 30 F.3d at 172, 177. Both the majority and the dissent quoted with approval from the dissent of then-Judge Stevens in NLRB v. Braswell Motor Freight Lines, Inc., 486 F.2d 743 (7th Cir.1973), that “I would suppose the Board‘s jurisdiction should be tested by the General Counsel‘s allegations rather than his proof.” The difficulty for the Board in this case is that this viewing as of the time of the allegations reveals no factual relatedness between the allegation in the charge and the additional allegations in the complaint. The Board alleged none. We stand by our holding in the original opinion in this case that the relatedness is determined as of the time of allegation.
As in Galloway, then, the only real factual connection between the charge allegations and the complaint allegations is that
The Board applied our Galloway reasoning in Nickels Bakery of Indiana, Inc., 296 NLRB 927, 928 (1989), adopting a three-part test for whether complaint allegations are “closely related” to charge allegations. Under Nickels Bakery, the Board looks to whether a complaint allegation (1) involves the same legal theory as the charge allegation, (2) arises from the same factual circumstances or sequence of events as the charge allegation, and (3) raises similar defenses as the charge allegation. Id. Pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), we defer to this test as a permissible interpretation of § 10(b). See Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 591 (D.C.Cir.1994). But deferring to the test does not mean that we must affirm the Board in this case. Nickels Bakery does not support the Board‘s conclusion, and Galloway dictates its reversal.
The only justifications offered in the decision of the administrative law judge adopted by the Board for the relatedness of the allegations in the complaint and the single allegation in the charge is that they “arise out of the same alleged anti-union campaign,” and that they both bear on anti-union animus. Drug Plastics & Glass Co., 309 NLRB 1306, 1306 n. 2 (1992). The Board cannot employ this basis as “adequate relatedness” consistent with its decision in Nippondenso Mfg. U.S.A., Inc., 299 NLRB 545 (1990); thus, the Board‘s action here is an unexplained deviation from its own precedent.
In Nippondenso, the only charge on file when the complaint issued alleged that “[o]n or about 4/26/88, the Company discharged an employee” in violation of section 8(a)(3); that “[o]n 2/25/88 the Company was notified, by letter, [the employee] was a member of the In-Plant Organizing Committee;” and that the employer violated section 8(a)(1) “[b]y the above and other acts....” Id. at 545. The complaint alleged several violations of section 8(a)(1) that were not mentioned in the charge, including that (1) a supervisor enforced a rule prohibiting the wearing of buttons other than those issued by the employer, (2) supervisors engaged in disparate treatment of union activity by enforcing a rule prohibiting the posting of literature and then applying the rule disparately to union literature, and (3) supervisors promulgated and enforced other bans on the wearing of union paraphernalia and displaying union insignias. Id. The Board analyzed the relatedness of the charge to the complaint under its Nickels Bakery three-part framework, and concluded that the General Counsel “ha[d] not established a factual nexus between the allegations in the charge ... and those set forth in the complaint,” apart from “their relationship to the same organizing campaign....” Id. at 545, 546. Although the General Counsel contended that the allegations were sufficiently linked because they all alleged discriminatory acts against employees “during, and in order to quell, a union campaign,” id. at 545, the Board concluded that it could not justify “finding the allegations closely related based on legal theory alone.” Id.
In the instant case, the Board found that the complaint allegations were “closely related” to the charge allegation because it found that the allegations “arose out of the Respondent‘s overall plan to resist the Union ...; that all the allegations occurred after the respondent‘s acknowledged awareness of the organizing effort ...; that several of the allegations involved statements to employee Matthews ...; and that the 8(a)(1) allegations generally occurred during the same time period as the 8(a)(3) allegation.” Drug Plastics & Glass Co., 309 NLRB 1306, 1306 n. 2 (1992). The Board‘s justification here is no more than a restatement of the one it held inadequate in Nippondenso. The only connection left between the charge and complaint is “legal theory,” and even then only in the broadest sense, that of “anti-union animus.” Nippondenso makes clear, though, that allegations which are related by mere legal theory are not “closely related” for
We find further support for this conclusion in our recent opinion in Lotus Suites, Inc. v. NLRB, 32 F.3d 588 (D.C.Cir.1994). In Lotus Suites, we held that general boilerplate allegations in a union charge which contained no particular facts could not support specific complaint allegations because the charge allegations were “utterly lacking in factual specificity.” Id. at 592. Because the charge allegations were general in nature, there could be no “sufficient factual connection” between the charge and the complaint. Id. Lotus Suites illustrates the importance of alleging a factual relationship between the charge allegations and the complaint allegations, which the Board failed to do here. Where the Board is unable to connect the allegations in its complaint with the charge allegation, we are unable to find that the Board has jurisdiction over the unrelated complaint allegations.
Because we find that the Board did not have proper jurisdiction over the allegations which supported its finding of § 8(a)(1) violations by Drug Plastics, and because the six-month limitations period of § 10(b) has since elapsed, the order of the Board is vacated, and its enforcement is denied.
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 Nippondenso is alive and well but asserted that it is distinguishable. Such distinctions as are urged—see id. (discharged employee in Nippondenso 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),
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.