Nickles Bakery Of Indiana, Inc.

NICKLES BAKERY OF INDIANA 927 Nickles Bakery of Indiana, Inc. and Gary L. Eads. Case 25-CA-18938 September 29, 1989 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT, HIGGINS, AND DEVANEY Upon a charge filed by Gary L. Eads, the Charging Party, on October 14, 1987,1 the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on De- cember 22 against Nickles Bakery of Indiana, Inc., the Respondent, alleging that it has violated Sec- tion 8(a)(1) of the National Labor Relations Act. Thereafter, the Respondent filed an answer ad- mitting in part and denying in part the complaint allegations, and requesting that the complaint be dismissed. On April 25, 1988, the General Counsel filed a Motion for Summary Judgment. On April 28, 1988, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the General Counsel's motion should not be grant- ed. On April 29, 1988, the Respondent filed a Motion for Summary Judgment and Opposition to the General Counsel's Motion. On May 9, 1988, the Respondent filed a response to the Notice to Show Cause and renewed its Motion for Summary Judg- ment. On May 12, 1988, the General Counsel filed a brief in support of its Motion for Summary Judg- ment. The General Counsel's Motion for Summary Judgment and accompanying brief in essence assert that the Respondent violated Section 8(a)(1) by maintaining an unlawful no-solicitation rule. The Respondent's Motion for Summary Judgment con- tends that the complaint, alleging only the mainte- nance of an unlawful no-solicitation rule on and after April 15, 1987, is the result of an improper en- largement of the charge.2 The charge alleged only 8(a)(3) conduct on April 13 and September 27, 1987, related to disciplinary action taken against the Charging Party. The charge also alleged in pre- printed wording at the bottom of the form that "[b]y the above and other acts, the above-named employer has interfered with, restrained, and co- erced employees in the exercise of the rights guar- anteed in Section 7 of the Act." The General Counsel maintains that this language is sufficient to support the 8(a)(1) complaint allegation. In considering the general sufficiency of a charge to support an allegation in the complaint, the Board has generally required that the com- plaint allegation be related to and arise out of the same situation as the conduct alleged to be unlaw- ful in the underlying charge, although it need not be limited to the specific violations alleged in the charge. 3 This requirement is derived from Section 10(b) of the Act, which provides in pertinent part as follows: Whenever it is charged that any person has en- gaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such pur- poses, shall have the power to issue and cause to be served upon such person a complaint stating the charges in that respect . . . . [Em- phasis added.] The Supreme Court in NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959), in discussing the Board's authority to discharge its duty of protecting public rights, held that a complaint alleging violations not specifically alleged in the charge is proper if the matters asserted in the complaint "are related to those alleged in the charge and . . . grow out of them while the proceeding is pending before the Board." Consistent with Fant Milling, the Board has long required a sufficient factual relationship between the specific allegations in the charge and the complaint allegations.4 Notwithstanding this required factual nexus be- tween the charge and the complaint allegations, a contrary line of Board cases has evolved with re- spect to complaint allegations involving Section 8(a)(1). See, e.g., Texas Industries, 139 NLRB 365 (1962), enfd. in relevant part 336 F.2d 128 (5th Cir. 1964); Pet Inc., 229 NLRB 1241 (1977); Staco, Inc., 244 NLRB 461 (1979); Clark Equipment Co., 278 NLRB 498 (1986); G. W. Galloway Co., 281 NLRB 262 (1986), revd. 856 F.2d 275 (D.C. Cir. 1988). In these cases, the Board held that the general catch- all language "[b]y the above and other acts," print- ed on the standard Board charge form, is sufficient on its own to support more particularized 8(a)(1) complaint allegations, based on conduct that oc- curred within 6 months prior to a timely filed charge, even absent a showing of factual related- ness between the charge allegation and the com- plaint allegation. In Galloway, supra, the charge alleged an 8(a)(3) discriminatory discharge of an employee; the com- ' All dates are in 1987 unless otherwise indicated x The Respondent's motion also claims that the no-solicitation rule, Stainless Steel Products, 157 NLRB 232, 234 (1966), El Cortez Hotel, when read in conjunction with the collective-bargaining agreement, is not 160 NLRB 1442, 1446-1447 (1966), affd 390 F 2d 127 (9th Cir. 1968). unlawful 4 See Red Food Store, 252 NLRB 116 ( 1980), and cases cited therein 296 NLRB No. 118 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plaint alleged an 8(a)(1) threat of discharge to em- ployees for engaging in a strike. Relying on Texas Industries, Pet, Staco, and Clark Equipment, cited above, the Board found that the "other acts" lan- guage preprinted on the charge form was sufficient to support the complaint allegation. The court of appeals, however, rejected the Board's position that the preprinted "other acts" language of the charge, standing alone, can serve to broaden the permissible scope of a complaint. G. W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C. Cir. 1988). The court held that the language of Section 10(b) of the Act, as well as the Supreme Court's Fant Milling decision, require "a significant factual affiliation" between the charge allegations and the complaint allegations. G. W. Galloway Co. v. NLRB, 856 F.2d at 280. The court also held that the improper dis- charge alleged in the charge and the threats to strikers alleged in the complaint were not suffi- ciently related within the meaning of Fant Milling because their only connection appeared to be that they occurred on consecutive days at the same plant and involved the same employer. In Redd-I, Inc., 290 NLRB 1115 (1988), the Board held that in deciding whether complaint amendments are closely related to charge allega- tions, it would apply the closely related test, com- prised of the following factors. First, the Board will look at whether the otherwise untimely allega- tions involve the same legal theory as the allega- tions in the pending timely charge.5 Second, the Board will look at whether the otherwise untimely allegations arise from the same factual circum- stances or sequence of events as the pending timely charge. Finally, the Board may look at whether a respondent would raise similar defenses to both al- legations. Id. at 116.6 Although the facts of Redd-I involved a complaint amendment, the precedent relied on in Redd-I applies a similar closely related requirement to both initial complaints and amended complaints. See particularly NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), discussed in Redd-I, supra at 116. s In determining whether essentially similar legal theories underlie dif- ferent allegations, we noted in Redd-I that usually the same section of the Act will be the basis for both the timely and untimely allegations. Id. at 1118 However, it is not necessary that the same sections of the Act be invoked. Thus, we note that in Whitewood Maintenance Co., 292 NLRB 1159, 1169 ( 1989), the Board found that even though the otherwise un- timely amendment invoked Sec 8(a)(2) of the Act and the timely charge referred to Sec. 8(a)(5), the allegations satisfied this relatedness require- ment because they were predicated on essentially the same legal theory. See also Proctor & Gamble Mfg. Co. v NLRB, 658 F 2d 968, 984-985 (4th Cir 1981), cert . denied 459 U S 879 ( 1982) (8(a)(3) allegation found closely related under Font Milling, supra, to 8(a)(5) allegations). a In doing so, however, the Board will not rely on a respondent's mere claims of different lawful reasons for taking different actions alleged in the complaint as unlawful , but will look to whether the timely and other- wise untimely allegations allege the same unlawful object. See Davis Elec- trical Constructors, 291 NLRB 115, 116 fn . 9 (1988). Having reexamined Board precedent in this area in light of the court's decision in Galloway and our own decision in Redd-I, we can find no sufficient basis in law or policy for continuing to exempt 8(a)(1) complaint allegations from the requirements of the traditional "closely related" test. On the con- trary, we believe that a uniform requirement in all 8(a) cases that a complaint allegation be factually related to the allegation in the underlying charge will end the disparity that currently exists in our case law and promote important statutory policies. We find the reasoning of the cases requiring a fac- tual nexus between the charge and complaint alle- gations to be just as applicable in instances when the complaint alleges violations of Section 8(a)(1) as in instances when the complaint alleges other violations of Section 8(a). Allowing the boilerplate "other acts" language to support unrelated 8(a)(1) complaint allegations contravenes 10(b)'s mandate that the Board "not originate complaints on its own initiative."7 In addition, such an approach vir- tually renders meaningless the specificity required by Section 102.12(d) of the Board's Rules and Reg- ulations that a charge contain a "clear and concise statement of the facts constituting the alleged unfair labor practices affecting commerce." Finally, we recognize that matters raising unfair labor practice issues often are discovered or occur after the original charge is filed. In those circum- stances, it is customary for a charging party to file an amended charge or an entirely new charge.8 7 See G. W. Galloway Co. v NLRB, 856 F.2d at 280. In this regard, we note that G. W. Galloway presented a rather atypical situation. The ad- ministrative law judge in that case explicitly found that the strike alleged in the complaint did not grow out of and was not related to the discharge that was alleged in the charge. The court of appeals indicated that its ruling might have been different had some connection been found. Thus, the court stated - "If the strike was sparked by the discharge or was staged to protest the discharge , the necessary relationship would likely exist Similarly, if an employee was fired for participating in a strike char- acterized as improper in a filed charge, a complaint based on that charge might permissibly assert that other employees were threatened with dis- missal for taking part in the same strike." Id. at 281 (footnote omitted) The court further noted that there was no indication that the striking em- ployees were concerned about the discharge, or even aware of it. The court stated "Moreover, in light of the Board's omission of the discharge from the complaint , it hardly can be argued that the discharge and the threats made to strikers were part of a continuing campaign by Galloway against the union " Id. (footnote omitted). The court cited cases from other courts of appeals referring to the finding of a sufficient relation be- tween the charge and complaint in circumstances involving "acts that are part of the same course of conduct, such as a single campaign against a union," NLRB Y. Central Power & Light Ca, 425 F 2d 1318, 1321 (5th Cir. 1970), and acts that are all "part of an overall plan to resist organiza- tion." NLRB Y. Braswell Motor Freight Lines, 486 F 2d 743, 746 (7th Cir. 1973). a Indeed, the General Counsel's own Casehandling Manual provides in Sec 10064.5 that "[i]f the allegations of the charge are too narrow," an amendment should be sought, and that if an amendment is not filed, "the case should be reappraised in this light , and the complaint issued, if any, should cover only matters related to the specifications of the charge." (Emphasis in original ) Because our decision today is in conformity with these guidelines, it should not have a significant effect on operations in the Regional Offices. NICKLES BAKERY OF INDIANA 929 Obviously, nothing in our decision today limits in any way a charging party's ability to file a timely new or amended charge. Therefore, our holding will impose no significant hardship on a charging party, who continues to remain free to raise addi- tional timely allegations for Board consideration. Based on all the foregoing reasons, we now overrule those cases holding or implying that the catchall "other acts" language preprinted on the charge form provides a sufficient basis, on its own, to support any and all 8(a)(1) complaint allegations. We hold that such 8(a)(1) complaint allegations must be closely related to the allegations or subject matter set forth as the basis for the underlying charge. Having enunciated the applicable principles re- quiring that the charge allegations and complaint allegations be closely related, we now turn to the question of whether the complaint allegation in the instant case is closely related to the charge allega- tion. The charge alleged that the Respondent dis- criminatorily disciplined the Charging Party be- cause he was a union steward, in violation of Sec- tion 8(a)(3) of the Act. The complaint alleges that the Respondent violated Section 8(a)(1) by main- taining the following rule: SOLICITATIONS-Solicitations within the plant are prohibited without prior approval by management. Regarding the 10(b) issue, the General Counsel relies almost entirely on the contention that the "other acts" language on the charge form suffi- ciently supports the complaint allegation. Although he also asserts that "the complaint may allege any matter closely related to or growing out of the charged conduct, or related to the controversy which produced the charge or which relates back to or defines the charge more precisely," we are unable to determine the validity of that argument on the present record. It would be premature for us to decide at this juncture whether they are closely related. In light of our decision to overrule the Board precedent relied on by the General Counsel, we will remand this proceeding to the Regional Director to determine whether the com- plaint allegation is closely related to the charge al- legation and for further appropriate action. The Respondent's and the General Counsel's Motions for Summary Judgment are therefore denied. ORDER It is ordered that the General Counsel's Motion for Summary Judgment is denied. IT IS FURTHER ORDERED that the Respondent's Motion for Summary Judgment is denied. IT IS FURTHER ORDERED that the proceeding is remanded to the Regional Director for Region 25 to determine whether the complaint allegation is closely related to the charge allegation and for fur- ther appropriate action.