*1 meaning purposes” al within the of the Act.4 judgment of the district court

AFFIRMED.

REEBIE STORAGE AND MOVING

COMPANY, INCORPORATED,

Petitioner/Cross-Respondent,

NATIONAL LABOR RELATIONS

BOARD, Respondent/Cross-

Petitioner. 93-4060,

Nos. 94-1225. Appeals,

United Court of States

Seventh Circuit.

Argued Oct. 1994.

Decided Jan. 4. We public property affirm the district court's permitted conclusion that "intended or to be immunity applies, doing, section 3-106 purposes.” but so used recreational Because unnecessary we find it to comment the court's Convention Center was dedicated to a number uses, reasoning uses, public including that the Convention Center is recreational we need not property intended argument to be used for recreational address the SMEAA’s the Center purposes. grants immunity Section 3-106 was intended for recreational use. *2 Shaw, Miller, Seyfarth, Fair- B.

Edward Geraldson, Chicago, (argued), IL weather & Co., Moving Inc. Storage and for Reebie N.L.R.B., Silverman, Contempt Liti- David Branch, DC, Washington, gation Elizabeth IL, N.L.R.B., Region Chicago, Kinney, Perlstein, Armstrong, E. A Howard Aileen (argued), Nancy B. Neigus Margaret Gaines Court, Hunt, N.L.R.B., Appellate Enforce- DC, Washington, Litigation, ment N.L.R.B. Hillman, Carpenter, Peggy A.

Thomas R. Teamsters, Lo- Brotherhood of International Drivers, IL, Oil Chicago, for Truck cal Drivers, Filling and Platform Work- Station ers’ Union Local POSNER, BAUER, Judge, Before Chief WILL,* Judge. Judge, and District Circuit BAUER, Judge. Circuit Storage Moving appeals from a Reebie rendered the National Labor Re- decision (“Board”) holding that Reebie lations Board “members-only” on a applied its contract 8(a)(3) of the in violation of section basis (“Act”). Act Labor Relations National 158(a)(3). allega- § We find that U.S.C. finding complaint upon this tion closely related to based was not in the initial contained pe- have been stricken. Reebie’s and should of the Board’s decision tition for review granted, and the Counsel’s General therefore is denied. petition for enforcement moving storage engages in goods and has of commercial and household Park, in Franklin Illinois. its main facilities season, Depending on the demands of employed has somewhere between many For workers at that location. and 100 Drivers, Driv- years, union of Truck Oil Workers, ers, Filling and Platform Station (“Union”) represented several Local No. 705 Reebie, turn, be- of Reebie’s workers. Association of Greater longed to the Movers’ (“Association”), Chicago a confederation collectively represented movers which local drafting negotiating and labor members in * Will, sitting by designation. States Dis- Hubert L. United The Honorable Illinois, is Judge the Northern District of trict agreements agreement with the Union. The employees excluding replace- summer — Union the Association rele- ments. vant to this case ran from March of 1987 to Manso, Salvatore president, Reebie’s re- agreement March of 1990. Included sponded to the noting letter first was a “favored nations clause” which entitled *3 clause,” under the “favored nations Reebie any subsequent Reebie to the benefits of was entitled to see contracts into which by if entered into the Union the Union had entered contained terms subsequent contract included terms more fa- more favorable than those con- Reebie’s agreement. than those in vorable Reebie’s tract. suggested Manso parties get agreement also included a “union securi- together exchange and requested infor- ty required employees per- clause” which all mation, but when neglected the Union to forming designated unit work to become pursue further, this matter Manso assumed thirty days members of the Union within dropped. the issue had been employment. Relations between Reebie and the Union Despite requirement, this latter op- Reebie point 21, reached their most bitter on March agreement erated for the course of the with by when frustrated attempts failed approximately thirty twelve of the unit agreement, reach a new finally Reebie de- part members as of the Union. Because impasse negotiations. clared an On the employees covered the contract were enti- following morning, Manso called a meeting of benefits, pension tled to welfare and his staff and announced his intention to uni- making avoided on contributions behalf of laterally implement as the new-terms of em- employees. Acknowledging the non-union ployment the terms of Reebie’s final offer to large that Reebie was not as as other em- the Union. He employees informed his ployers within the Association and therefore if protest, chose to strike in Reebie was viably provide could not coverage legally permitted replace permanent- them employees, Ligurotis, all of its Dan the Un- ly. Manso also told employees unionized Secretary-Treasurer, acquiesced ion’s in this that if a employ- strike was called and those arrangement on the Union’s behalf and no work, they subject ees continued to would be grievances against were filed Reebie. inBut discipline from the Union. July apparently Liguro- unaware of agreement, representatives tis’s union Wil- events, foregoing Based on the the Union liam Dicks and Gerald Rzewnicki visited charge filed a with the claiming facility Franklin Park signed up Reebie’s and actions, by Manso’s words and Reebie had as union twenty members between and twen- attempted discourage employees from be- ty-five Their intent was longing to the Union in violation of section for these workers to receive contract cover- 8(a)(3) charge of the Act. The also claimed age, but that never occurred. by failing to furnish the information agreement expiration As the neared requested, duty Reebie had violated its negotiations agreement for a new were un- 8(a)(5). bargain Upon under section an in- derway, the Union following sent Reebie the vestigation, the Board’s General Counsel is- request: (1) alleging sued that Reebie:

In compliance order to discouraged determine with affiliating its from contract, please forward as soon as threatening with the Union them with possible, weekly list from discharge by conditioning the first week their contin- September, through employment the last resignation week ued from the Un- (2) January 1990, names, showing ion; provide address- failed to the Union with es, pay, (3) per day requested information; rates and hours worked encouraged employees performing any all membership by applying movers union the terms and work. The list should be agreement broken down conditions of employ- to union regular employees only.1 all other ees Paragraph VII courage” membership. claims that the The General members-only practice effect of the was to "dis- Counsel claims that this was a mistake and that to amend the permitted Counsel should presented to an Administra-

The case informa- (“ALJ”), based on first that who held Judge tive Law investigation. Our during its to establish that Reebie tion obtains failed evidence quite has been discourage employ- interpretation of this rule its anything had done See, e.g., The ALJ to the Union. to the General Counsel. belonging deferential ees Lines, respond Freight Man- by failing to Braswell Motor NLRB v. held that also Cir.1973) (7th exchange Inc., (stating each side F.2d suggestion that so’s information, the Union the controver- long the Board entered “so may allege information. On request dropped sy pursuant to a formal however, allegation, complaint’s part third of that controver- it finds as whatever Union, reasoning Nevertheless, in favor of the ruled because the General sy.”). ALJ *4 agreements “members-only” although authority the is not vested with Counsel offering illegal, not similar per se were not initia- practices on its own investigate labor unlawful workers was non-Union tive, allegations terms to complaint includes if the decision, the Board 2-to-l In a conduct. completely outside of the situation are dissenting member The Board’s affirmed. allegations in those complained of the allegation should have the third Indus., believed that Complas NLRB v. must be stricken. complaint because it Cir.1983). from the (7th been stricken Inc., & n. 3 714 F.2d 732 charge. original the closely related to was not a of determination Critical the Board’s deci- us to reverse Reebie asks closely complaint allegations in a are in the whether grounds set forth on the sion either comparison charge in is a was related to those the the decision dissent or because Board’s allegations. of the legal Be- and factual bases by evidence. of the unsupported substantial d-I, Inc., allegation pro-union of 290 NLRB that the Red cause we find (1988). similarity, sufficiently legal comparing related In the we discrimination by initially complained allegations of the new are of consider whether the the conduct evidentiary complained of Union, the as the violations we need not evaluate the same class inquiry charge. decision. of the Board’s in the Relevant basis allegations involve the same the new whether practices unfair labor Allegations of Act. theory section of the legal and the same process two-step a upon after are acted inquiry is whether at 1118. The second Id. first file with the party A must is satisfied. fac allegations from the same the new arise setting charge Board’s General Counsel contained the as those tual situation Then, if the General allegations. forth its test, we fail to charge. Applying this Id. allegations in the decides charge’s a sufficient nexus between find worthy prosecution, it will issue charge of are complaint’s allegation allegations and the alleged wrongdoer against complaint against non-Union discriminated that Reebie argued before an ALJ. and the case will Coun complaint, the General drafting In by the of substantively limited contents sel is is, case, an obvious ten There in this Though it not be a charge. need original charge complaint. and the sion between restatement, complaint must be verbatim complains practices several charge of charge. scope to the “closely related” expiration agreement, occurring upon charge permissible variance alleged to have been de which are all of in this case. is at issue and the membership. discourage signed to Union hand, after incor complaint on the other Milling, 360 U.S. In NLRB v. 1183-84, charge, adds that the claims of the 301, 307-08, porating 79 S.Ct. contract, unfairly administering the (1959), not Supreme Court L.Ed.2d con employees from the certain Coun excluded the role of the General that because ed coverage were not Union tract’s because rights, the General public sel is to vindicate that Reebie ing was evident and that this error have characterized complaint should instead proceed, prejudiced error. We "encouraging” union was not practice as the effect of the therefore, intended. read as as if the agree in find- membership. We with the Board words, In other the complaint changing wage members. specified rates encouraging Reebie of both accuses and dis- bargaining agreement collective closely couraging membership. Union Because the charge related to a alleging a refusal charge complaints was limited to of anti- furnish the union with information. conduct, Reebie contends that the new Id. at allegations 763. Both stemmed from allegation cannot be pro-union considered purported violations of employer’s bar- “closely related” to the 8(a)(5) gaining obligations under section the Act. argument, At The Board had oral counsel for the concluded that be- argued though cause the purpose request even towas complaint allege diametrically op- conduct confirm that employer had deviated from motivation, posed they could be reconciled paying wage rates specified agree- general on a more pre- because each ment, level allegations the two factually were re- an discriminatory instance of sented conduct. found, however, appeals lated. The court of abstraction, legal But at certain levels of this link was supported less than capable being are two deemed substantial evidence and reversed generous interpretation “related.” Such a Board’s determination. improperly provide the General Coun- scrutiny Careful of this case reveals that sel -with carte blanche to amend the *5 relationship the between allegations the in Milling, pleases. 360 U.S. at this case are even more tenuous than the Anchoring at 1184. S.Ct. the General relationship which in Wilson & Sons. existed inquiry underlying Counsel’s is the fact situa- all, First of allegations the two in this case prevent To tion. the General Counsel from rest on statutory provisions different engaging unprincipled enlargement in an of legal theories; different complaint’s allegations these must differences legal true to the factual similarity situation addressed in render the between the two And, as the Board in noted its more At least in Wilson dubious. opinion, Sons, complaint’s allegation of union & duty representation the union’s of factually only favoritism is distant not in legal awas issue allegations. common both in charges nature but also time from the of importantly, More is no there evidence to anti-union conduct. justify the finding Board’s anomalous Perhaps recognition dispari of this Union requesting was information so that ty, Counsel, alternative, the General practices it could uncover which benefitted grounds defends the decision below on the request Union members. A pertain- for data allegation of union favoritism ing employment to the terms of of all unit from charge’s pro stemmed “refusal to inherently is not workers related —and cer- Echoing vide information” claim. the rea tainly closely not allegation an related —to of ALJ, soning employed by the discrimination in favor of the Union. And purpose Counsel states that the for the re any suggest without evidence that Reebie quest itself, request intertwined with connection, argument, was aware of the this and because the Union’s in requesting intent Sons, inas Wilson & must fail. the information was to determine whether applying was Reebie the terms of its contract Instead, consistently paints the evidence a “members-only” basis, a request for picture of a union concerned about the factually information was related to Reebie’s of treatment its own As the members. ALJ discrimination favor of the Union. found, arrange- the Union was content its provided coverage ment with Reebie which Appeals The Court of for the D.C. Circuit only, members rejected attempt and it did not in Wilson & argument similar NLRB, fact, Heating Plumbing, act on behalf of In Sons & Inc. v. non-union workers. (D.C.Cir.1992). stumbling of agree- one to a 971 F.2d 768 blocks new court’s was decision reversed an of ment the Union’s insistence that order had held allegation guaranteed which that an in a members be com- more favorable accusing plaint employer unilaterally package of than benefits non-members. the court conduct, Board ordered and which and the course of this with

Consistent now reverses vacates. coming on the request, appears that discovery that Reebie the Union’s heels of out, was and points Reebie opinion As the union contri- making appropriate not was of the Movers’ Association is a member signed up in members new for the butions with Chicago had a master contract which about from concern resulted July of security clause of 705. The union Local mem- these new Union treatment Reebie’s per- employees required all over the concern bers and work be members of forming designated unit to its non- providing terms which the contract benefits union and receive Suspicious that Reebie union health, vacation, pen- welfare and including among its own misapplying the benefits. sion members, requested the informa- the Union years, Notwithstanding, a number of That this belief. it could confirm tion so that thirty approximately Ree- only twelve of the dating information back the Union recognized by Ree- employees bie unit were of 1989 reinforces September though, at one union even bie to be members contract had Aware conclusion. twenty-five time, twenty members-only basis since on a applied been Apparently, up members. signed them to be limited its re- Union nevertheless minority only a arrangement unit work- period which most quest to the recognized un- employees eligible became already signed up as new members. ers had bene- and received the contract ion members acting on behalf of non- been Had the Union fits, private between the Union’s was a one members, data from solicited it would have president. secretary-treasurer Reebie’s new members had period before the result, eligible half of the As a less than Hence, only supported infer- signed up. recognized became *6 intent is that to Union’s pertaining ence although no benefits members and received example of simply another request was against by the Reebie grievances were filed mem- concern its exclusive the Union’s union. to confirm that the bership designed and was Association, The receiving con- members were new Union was to ex- and Local 705 scheduled coverage. tract and the union pire in March 1990. Reebie mean to com- holding, do not By we our among negotiating new contract began a arrangement between on whether the ment themselves, seeking repre- now to the union lawful. find was We and the Union asserting, employees unit and Reebie sent all complaint the including in the merely in past, that it could not afford it had in the applied its contract on allegation that Reebie coverage provide and benefits basis, the General Counsel “members-only” a all of its unit complained of in the conduct strayed beyond 22, 1990, Reebie informed its March On acting on its essence charge and was in negotiations had reached employees that the charge the Union’s initiative. Because own company impasse intended an and directed at its exception to conduct took latest and final operate on the of its basis contemplate non-mem- and did not members It also advised the em- to the union. offer bers, claiming discrimination allegation called, any strik- that if a ployees strike have been against should non-members permanently re- ing employees would be foregoing, with the In accordance stricken. placed. for review grant petition we Reebie’s charge union then filed a with cross-petition for deny Counsel’s (1) attempt- alleging: that Reebie enforcement. joining the discourage employees ed to 8(a)(3) Act; of section union in violation WILL, Judge, dissenting. District (2) Reebie, failing to furnish union, by the had re- in this information I The facts regret, With dissent. violat- bargain good faith and had the ALJ fused clearly relief which case call for the 611 8(a)(5) ed section of the Act. After an inves- The General Counsel and may tigation charges, allege the Board’s General violations not included in original complaint alleging charge issued if Ree- the violations did not occur more (1) discouraged bie had: from than six prior months filing and ser- joining the union threatening vice them with and if the new violations discharge closely if are conditioning did and related their to the violations contained employment charge. future resignation Complas, See 729, from the 714 F.2d (2) (7th union; Cir.1983), provide 733 citing failed to the union with Indiana Metal NLRB, Corp. Products v. 613, information which it 202 needed for collective F.2d 619 (7th Cir.1953). (3) Yet, bargaining negotiations; and even applied requiring while charge that the complaint terms and conditions of “closely the contract to union related,” Complas the court in thereby members encouraged used the stan- dards articulated in membership although making Milling clear that and Koh- ler, above, eligible could not afford all described to have unit determine whether mem- closely bers be union members. related to the charge. majority holds that ground, the third developed Board has slightly more one on which the ALJ and the restrictive test to determine if union, Board found for the was not sufficient- is related to majority As the ly related to the grounds origi- the union’s points out, the Board looks to if see nal permit the General Counsel to allegations involve the legal theory, same if assert it in complaint. his arise from the same factual opinion out, As the majority points there sequence events, situation or and if the have been a number of discussing decisions respondent would raise the same or similar under what circumstances the General Coun Redd-I, Inc., defenses to both allegations. may modify sel or amend a in filing a (1988). 290 N.L.R.B. 1116 While the complaint. accurate, believe, It is say I Supreme Court has not recognized the easy bright there is no or line of demar test, USA, Redd-I under Chevron Inc. v. cation. In Milling NLRB v. Fant Company, Council, Natural Resources 467 U.S. Defense 360 U.S. S.Ct. L.Ed.2d 1243 837, 842-44, 2778, 2781-83, 104 S.Ct. (1959), majority out, as the points the Su (1984), L.Ed.2d obligated we are to ac- *7 preme that, specifically Court noted because cept an agency’s statutory construction of a the role of the General Counsel is vindi to provision if that construction is reasonable. public rights, cate he should have and has the problem here, however, The is that the right to amend the charge in a to specifically Board recognized applied and its reflect the information obtained as a of result Redd-I test this case and found that the investigation. court, his This majority as the charge “closely and the were relat- out, points also quite has heretofore been ed.” The findings Board’s conclusions and. deferential to the General Counsel’s discre are entitled to reviewing deference from the saying tion in NLRB v. Braswell Motor if supported by court are substantial Lines, Freight Inc., 743, (7th 486 F.2d 746 whole, evidence in the record as a even if the Cir.1973), long as the “so Board entered justifiably court have could made a differént controversy the pursuant to charge, a formal choice judging the matter de novo. Univer- may allege it part whatever finds as of that NLRB, 474, sal Camera Co. v. 340 487- U.S. controversy.” exception The to that rule was 88, 456, 464-65, (1951). 71 S.Ct. 95 L.Ed. 456 may that the complaint not contain alle that, As will appear, I believe not is its gations which completely “so are of outside finding evidence, supported substantial the gave situation charge which rise to the but that right. the Board was may that it initiating said to be pro the ceeding motion,....” on its own NLRB v. requested had union information re- Co., (7th 3, Cir.1955), Kohler 220 F.2d 7 garding employees performing any “all mov- quoted Industries, Complas Inc., NLRB v. (emphasis original). ers work.” As the 729, (7th Cir.1983). 714 F.2d n. 3 decision, 733 Board noted in its employer the statutory machinery to a vehi- the all mem- reduce request to Refer to

understood rights. private vindication of cle for the unit, just union not bargaining the of bers purpose of to the basic 58, This would be alien p. 2 n. No. 313 N.L.R.B. See members. Act.... the the General concluded Board 5. The charge that Counsel, investigating the invoked jurisdiction the upon Once its provide inqui- informa- had to make employer refused Board must be the free full left contract, investigatory power with the concerning compliance ry under its broad tion duty union’s basis that, discharge with the the properly to consistent order learned of information, employer Congress rights which requesting protecting public to all unit contract There can be no imposed upon it. applying not has dissenting confining inquiry Board member an such justification members. that the established precise particularizations the record a thought that to the information because (Emphasis supplied) had being not contract was that the it discovered 2, NLRB v. p. quoting N.L.R.B. no. members, while the new union applied to 307-08, Co., Milling 360 U.S. estab- thought the evidence majority (1959). 1179, 1183-84, L.Ed.2d 1243 S.Ct. informa- requested the the union lished that, while it does not The Board then noted applied had employer tion because charge” expand the have “carte blanche to bargaining to all members 10(b) only requires might please, Section unit. relationship be- a “that there be ‘sufficient negate charge complaint “to tween accept conclusion of if we were Even proceeding on that the Board is its possibility member, dissenting Board pursuant than initiative own rather controversy pursuant clearly “entered ’ ” 2,p. quot- no. charge.” 313 N.L.R.B. alleged charge charge.” That a formal (1990), 439, 440 Corp., 298 NLRB ing Speco information provide employer failed to Co., Light Power & citing NLRB v. Central it failed union, the information Cir.1970). (5th 1318, 1321 425 F.2d wages and hours provide concerned bargaining unit. Even find, nor do majority does not I here brought because of if the been could, that the that it believe apply employer’s failure of the situation which completely outside so members, cursory investigation to union that it constituted to the gave rise have uncovered proceedings. of a new and different initiation members against nonunion the discrimination that in Clearly, happened here was what as well. investigating the union’s course discovered more the General Counsel that the com- support In conclusion of Reebie’s complex invidious course charged sufficiently to the related plaint was proceeded He then the union’s conduct. conduct, length at quoted *8 the facts complaint on disclosed file a based repeating is worth Milling. quote That Fant investigation. by his here: the current test of majority that is holds the Labor Board charge filed with A is whether Counsel’s discretion appli- by the standards not to be measured “closely is related” the complaint the private lawsuit. in a pleading cable to com- allegations of the charge, whether the merely in motion the to set purpose is Its same facts involve plaint I. arise the inquiry. NLRB v. & machinery anof of the legal and sections Act Co., 9, 18, theory same 63 the U.S. S.Ct. 318 M. Electric knowledge had the employer and whether 400, responsibility L.Ed. 87 test, Applying that the question. in framing the the issue inquiry, and of making that not, they although do majority finds that Congress has one that in the case is issues and, clearly the same facts as Board, arise from charging the the not upon imposed violations of practices, involve inquiry unfair labor Board in its confine the party. To Act. Under the same sections of specif- to the framing complaint complaint, test, that the as I current believe alleged ic matters found, clearly qualifies “closely the Board majority here relies on Wilson to in- charge. ject related” a new element “closely into the related” i.e., test: whether reflects the presented The evidence to the Board indi- charging party’s intent and whether the em- requested cated that the union had the infor- ployer knowledge of that intent. The bargaining mation on all the unit members’ majority request states “[a] for data wages and hours because that the believed pertaining to the terms of employment of all employer applying not was the contract to all unit inherently workers is not related —and bargaining unit The Gen- certainly closely allegation related —to an Counsel, making inquiry eral a “full under its of discrimination in favor of the union. And investigatory power broad properly order "without suggest evidence to that Reebie duty to discharge protecting public connection, was aware of the argument, this Milling, rights,” 360 U.S. at Sons, as in Wilson & must fail.” With all S.Ct. at employer determined that the due respect, Reebie was well aware that the discriminating against employ- nonunion seeking information in connection ees. with its efforts to have all unit employees become union members and receive the bene- It is for this reason that & Sons Wilson fits of the precise contract. That issue was Heating NLRB, Plumbing, & Inc. v. what had caused Reebie to nego- declare the (D.C.Cir.1992), F.2d by majori- cited tiations on a impasse new contract at an ty, analogous is not to this case. The facts bargain refuse to further and which caused grounds quite there are different than the union to file its It is inconceiva- Sons, In Wilson & those here. the Board ble that why Reebie didn’t know the union employer found that the by violated Act sought the information here. refusing comply request with a union books, company’s audit the information which Sons, In Wilson & request the audit issue understood was in order was arguably relevant to whether the em- verify employee’s wages. one The court of ployer’s provide failure to audit information reversed, appeals finding that Board’s duty bargain. violated its The court found conclusion that relationship existed be- employer that the did not duty violate its request tween the employ- audit and the one bargain by failing provide the information wage ee’s unsupported information was because it not know purpose did that the the record. Once the court determined that request towas obtain information rele- existed, relationship no that a concluded vant to bargaining negotiations, i.e., wage charge brought by the General Counsel of a clearly rates. That is not the here. case change particular unilateral employ- very Reebie knew well that the information wages, ee’s which was time barred under case, related to the issue in the 10(b) § unless it related back to the union’s disparate treatment of some unit members. closely was not related to the audit request, and therefore could not case, relate back. Prior to required we have not Here, there question was never a the employer be made aware request information was related to unit specific eventually violations employees’ wage and hour In- complaint, information. included in these stead, based closely the Gen- violations be charged related to the brought eral once he investigated requirement conduct. unprece- This new *9 supply information, dented, and, believe, failure I in direct contradiction ALJ and the Board found that Milling. of Fant holding Reebie had with the It total- is by applying violated Act ly the terms of the with inconsistent the breadth of General employees recog- those it Counsel and Board discretion defined in that nized as union members and not those it succeeding Moreover, and previ- eases. as recognize did not though they indicated, even ously thing the last could signed union membership seriously cards were here is that contend it was unaware performing the case, same unit work. of the sole issue difference erroneously en- majority denies now em- non-union treatment thereby depriving a of that order forcement the same work.

ployees performing employees majority substantial correctly concluded they are entitled and to which of the benefits his proceeded on had not Counsel General all over their relegating them to start of initiative, a direct result rather as own but Act. under the rights their efforts to secure majori- charge. The investigation of the his I dissent. therefore require- “closely related” by reading the ty, by the narrowly than intended ment more Milling of in Fant or

Supreme Court Redd-I including succeeding eases Sons, substantially proscribes the

&Wilson employees’ protect authority to

Board’s America, rights. of STATES UNITED Plaintiff-Appellee, standard technical highly applies It days of common is reminiscent which v. clearly inconsistent which pleading and law WILLIAMS, Larry Walter Milling and later in holding

with the Defendant-Appellant. and the cases No. 94-2101. duty to Board, carry out their in order rights, have discretion public vindicate Appeals, States Court United charge to reflect allegations of amend Seventh Circuit. in the course obtained the information long it cannot investigation so their Argued Nov. pro- initiating a new said that constitutes 12, 1995. Decided Jan. motion. own ceeding on their Rehearing En Banc Denied here, applying majority does What 31, 1995. March standard, prevent the is to highly technical rights of those vindicating the Board from bargain- who, despite a collective of their establishing the terms

ing agreement deprived of themselves

employment, found employer. by their thereof

the benefits recognizes that majority apparently may well violate the at Reebie

the situation says, Act when Labor Relations

National mean to it does “not

maj. op. page arrangement be- on whether

comment was lawful.” the Union Reebie and

tween eligible em- half of the than

Depriving more and to join the union right to

ployees of their under the benefits

obtain certainly most be entitled remedy that Act. To with

is inconsistent requir-

situation, its order entered eligible all em- permit

ing company recog- rights to be their

ployees to exercise whole and make union members

nized as any loss employees for eligible

all non-union welfare, pension, vaca- wages, health *10 have re-

tion or other benefits

ceived as