Nippondenso Manufacturing U.S.A., Inc.

NIPPONDENSO MFG U S A 545 Nippondenso Manufacturing U.S.A., Inc. and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW. Case 7-CA-28070 August 23, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 27, 1989, Administrative Law Judge Richard H Beddow, Jr issued the attached decision The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swenng brief and a letter The judge recommended dismissal of the complaint alleging that the Re- spondent had violated Section 8(a)(1) of the Act on the ground that the complaint allegations were not supported by a closely related pending charge Thereafter, the Board issued its decision in Nick- les Bakery of Indiana, Inc , 296 NLRB 927 (1989) On January 29, 1990, the Board issued a notice to show cause why the complaint should not be dis- missed under Nickles Bakery on the ground that the underlying unfair labor practice charge is insuffi- cient to support the allegations of the complaint The General Counsel and the Respondent filed re- sponses to the Notice to Show Cause Nickles Bakery held that the preprinted wording at the bottom of the Board's unfair labor practice charge form stating that "[b]y the above and other acts, the above-named employer has mterfered with, restrained, and coerced employees in the ex- ercise of the nghts guaranteed [them] in Section 7 of the Act" may not be relied on to support more particularized 8(a)(1) complaint allegations (296 NLRB 927) Instead there must be a showing of factual relatedness between the specific charge alle- gations and the 8(a)(1) allegations of the complaint We find that, under Nickles, the complaint must be dismissed because the charge does not bear a suffi- ciently close relationslup to the complaint allega- tions The only charge on file at the time the complaint issued' alleged that "[o]n or about 4/26/88, the Company discharged an employee (Leslie Stone)" in violation of Section 8(a)(3), that "[o]n 2/25/88, the Company was notified, by letter, [Stone] was a ' A previous charge had been filed by the Union March 24, 1988, and later withdrawn April 19 That charge alleged that the Respondent had violated Sec 8(a)(1) on March 17 by Supervisor Tom Williams' instruc- tion to employee George Johnson to remove a pocket protector contain- ing the union logo while permitting others to wear pocket protectors without the logo, and on March 21 by Supervisor Charlie Jenkins' re- moval of union literature from an employee bulletin board The charge also stated that employees George Johnson and Steve Applegate were In- volved in both of the incidents alleged member of the In-Plant Organizing Committee", and, as set forth in the prepnnted language at the bottom of the charge form, that the Respondent violated Section 8(a)(1) "[b]y the above and other acts " The complaint alleged the following violations of Section 8(a)(1) (1) from January 13 to April 14, 1988, Supervisor Jim Boehmer orally pro- mulgated and enforced a rule prohibiting the wear- ing of buttons other than those issued by the Re- spondent, (2) in February 1988, Supervisors Charlie Jenkins and Tom Williams engaged in disparate treatment of union activity by the promulgation and enforcement of a rule prohibiting the posting of literature, (3) between April 26 and March 14, 1988, Williams promulgated and enforced a ban on the wearing of union buttons and pocket protec- tors, (4) during the same penod, Williams dispar- ately applied the union insignia ban, (5) on March 29, 1988, Supervisor Steve Domaiewski promulgat- ed and enforced the union insignia ban, and (6) in April 1988, Jenkins disparately applied the litera- ture-posting rule to union literature The complaint contains no allegation concerning Leslie Stone In Nickles, the Board stated that, to determine whether a charge adequately supports a complaint allegation, it would consider (1) whether the charge and complaint allegations involve the same legal theory, and (2) whether they arise from the same factual circumstances The Board also stated that it may look at whether a respondent would raise similar defenses to both allegations Id at 928 Applying these principles to the allegations set forth above, we find that the General Counsel has not established a factual nexus between the allega- tions in the charge, which pertain only to the dis- charge of employee Leslie Stone and her union or- ganizing activity, and those set forth in the com- plaint, which allege only general 8(a)(1) interfer- ence with distnbution of union literature and the wearing of union insignia The General Counsel contends that the two sets of allegations involve the same legal theory be- cause the Respondent's enforcement of allegedly overly broad no-solicitation and no-distribution rules, as well as the Stone discharge, are discrimi- natory acts against employees "during, and in order to quell, a union campaign" We, however, find insufficient justification for finding the allega- tions closely related based on legal theory alone The General Counsel further contends that both the charge and the complaint arise from the same circumstances and sequence of events According to the General Counsel, it was Stone's activities as a union in-plant organizer that "helped trigger" the promulgation of the allegedly overbroad no-solici- tation and no-distribution rules It appears from the 299 NLRB No 83 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD face of the charge and the complaint, however, that, apart from their relationship to the same orga- nizing campaign, the allegations in the charge and those set forth in the complaint arise from different factual circumstances. There is no contention, for example, that Stone was disciplined for having en- gaged in the types of protected activity that the complaint alleges to violate Section 8(a)(1). Finally, despite the General Counsel's contention to the contrary, because no sufficient factual or legal nexus has been established to link the the charge and complaint allegations, it cannot be said that the Respondent would raise similar defenses. Accordingly, we agree with the judge that the complaint allegations are unsupported by the charge, and we shall dismiss the complaint. ORDER The complaint is dismissed. CHAIRMAN STEPHENS, concurring. I agree with my colleagues that the complaint should be dismissed, but I do so based on my par- tial dissent in Redd-I, Inc., 290 NLRB 115 (1988). The Union filed its original charge in this case March 31, 1988, alleging a violation of Section 8(a)(1) by interference with employee distribution of union literature and display of union parapherna- lia. The Union thereafter withdrew that charge, and, when it subsequently filed its 8(a)(3) charge relating to Stone's discharge, it did not reallege any of the 8(a)(1) violations from the original charge. In these circumstances, I find that the withdrawal of the original charge would reasonably have led the Respondent to believe that it would no longer be called on to defend against the allegations in that charge. The withdrawal, therefore, might have induced the Respondent not to preserve evidence generally relevant to the literature/paraphernalia- interference allegations. Thus, as in the underlying charge on file in REDD-I, the charge concerning Stone's discharge did not constitute timely notice concerning the allegations set forth in the com- plaint. 1 I, therefore, join in dismissing the com- plaint. 'I thus find it unnecessary to pass on whether the charge and com- plaint allegations are "closely related." Linda Rabin, Esq., for the General Counsel. John S Schauer, Esq., of Chicago, Illinios, for the Re- spondent. Gary Klein, of Battle. Creek, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW, JR., Administrative Law Judge. This matter was heard in Battle Creek, Michigan, on Oc- tober 13 and 14, and in Kalamazoo, Michigan, on No- vember 16, 1988. Subsequent to an extension of the filing date, briefs were filed by the General Counsel and Re- spondent. The proceeding is based on a charge filed May 10, 1988, 1 by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local Union No. 70, UAW. The Regional Di- rector's complaint dated June 9, as subsequently amend- ed, alleges that Respondent Nippondenso Manufacturing, U.S.A, Inc., of Battle Creek, Michigan, on various dates between January 1 and April 13, violated Section 8(a)(1) of the National Labor Relations Act by promulgating and discriminatorily enforcing a rule forbidding the wearing of any written insignia, pins, and like parapher- nalia by employees and by discriminatorily applying its posting and litter rules so as to inhibit the distribution of union-related literature. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is engaged in the manufacture, distribu- tion, and sale of heating and cooling units for automo- biles. It annually ships goods valued in excess of $50,000 from its Battle Creek location to points outside Michigan and it admits that at all times material it has been an em- ployer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. RELATIONSHIP OF THE CHARGE AND THE COMPLAINT On brief the Respondent renews its motion to dismiss all the remaining allegations, paragraphs 9(b) through (g) of the complaint. It argues that the allegations of the complaint are not closely related to the pending charge, citing Red Food Store, 252 NLRB 116 (1980), and that any amendment to the complaint at the time of the hear- ing would be beyond the 10(b) limitation period. The Union's charge, filed May 10, described the basis for the charge as the discharge of employee Leslie Stone, an employee that had been identified to the Respondent as a member of the in-plant organizing committee. The Regional Director's complaint, issued June 9, did not allege an illegal discharge, however, it did list various al- legations of illegal conduct pertaining to enployees wear- ing of union paraphernalia and posting union literature, all of which occurred within the first 4 months of the year. 1 All following dates will be in 1988 unless otherwise indicated. NIPPONDENSO MFG U S A 547 Previously, on March 31, the Union had filed a charge in Case 7-CA-27930 pertaining to the actions of supervi- sors in removing union literature and requiring employ- ees to remove union paraphernalia No settlement was reached However, pnor to the issuance of any com- plaint the Respondent was notified on April 22, by the Acting Regional Director that the charge had been with- drawn with his approval The Union's request in this regard was dated April 19 and stated it was due to prob- lems beyond its control with witnesses and it also stated that it would be reified at a later date By letter of June 7, a Board agent wrote to Respond- ent's counsel requesting various company records rela- tive to Stone The letter also noted that matters related to company limitations on union buttons and literature had been brought to her attention Counsel replied promptly by letter of June 9 and stated he would comply regarding information related to Stone's termination "which is the only subject of this charge" and noted that it would not be appropnate to review matters unrelated to the termination As noted, a complaint was issued in June which essen- tially described matters relative to the charge that had been withdrawn but otherwise omitted any allegation re- garding Stone's termination, the subject of the pending charge Nothing was stated to indicate that the Union had refiled its earlier charges or that the Regional Direc- tor was reopening the earlier proceeding At the hearing, the General Counsel made no motions relative to amendments concerning the paraphernalia and literature matters and, accordingly, the Board is not pre- sented with a 10(b) time limitation issue Rather, the question turns on the propriety of the Regional Direc- tor's inclusion of allegations that appear to be derived from matters that arguably are only indirectly related to the charge when it also appears that such allegations are totally derived from an earlier charge that was with- drawn by the Charging Party and otherwise was not spe- cifically renewed by either the Charging Party or the Regional Director As noted by the Board in Flatbush Manor Care Center, 287 NLRB 457 (1987), a charge is not a pleading and does not require the specificity of a pleading The com- plaint is not restricted to the precise allegations of the charge, and it may allege any matter closely related to or growing out of the charged conduct or related to the controversy which produced the charge Flex Plastics, 262 NLR8 651, 652 (1982) Here, the General Counsel also asserts some reliance on the prepnnted language on the charge which also alleges that "By the above and other acts, the above-named Employer has interfered with, restrained, and coerced employees in the exercise of nghts guaranteed in Section 7 of the Act" No charge or allegation concerning the discharge of Leslie Stone was pursued at the hearing Evidence was introduced, however, which indicated that she was iden- tified to management as a member of the in-plant union committee, that she had distributed literature (but had not been involved in wearing union paraphernalia), and that she observed from a distance that a supervisor took down a piece of union literature that she had posted (it was shown that the supervisor did not know who had put it up or that she had seen him take ,it down) The General Counsel takes the position that the allega- tions are "closely related" relying on the Board's deci- sion in Redd-I, Inc , 290 NLRB 1115 (1988), which states that the decision in Winer Motors, 265 NLRB 1457 (1982), and Ducane Heating Corp, 273 NLRB 1389 (1985), do not apply "because neither case involved an attempt to add closely related allegations to a pending charge Rather, each involved an attempt to reinstate the dead allegations themselves without reference to any other pending timely charge" A review of the record shows that the allegation of the first charge relates to several real, but somewhat minimal, generalized violations of employee's Section 7 rights that are peripherally related to the subject of Stone's discharge, an allegation which was not found to be a viable charge, sufficient to support an allegation in a complaint In Redd-I, Inc , supra, the Board distinguishes between reinstatement of charges discussed by the Regional Di- rector and those withdrawn by the Charging Party and states that the Board and the courts have traditionally found that withdrawn charges ceased to exist on with- drawal, so there is no reason even to acknowledge a withdrawn charge when applying the "closely related" test to a later timely charge covering the same matters On the other hand, as noted by the Board in Clark Equipment Co, 278 NLRB 498 (1986), the preferred pro- cedure consistent with the guidelines set forth in the Ca- sehandling Manual Section 10064 5 applicable to situa- tions where the allegations of the charge are too narrow, would be to seek an amendment from the Charging Party and, if an amendment is not filed, the case should be reappraised in this light and any complaint issued should cover only matters related to the specifications of the charge While the General Counsel has a great deal of discre- tion to reinstate charges, even outside the 10(b) limitation period, as a matter of procedure it should overtly mani- fest its exercise of this discretion and thereby properly notify the parties of the true status of the proceeding by alerting them to the proposition that previously with- drawn charges are no longer to be considered to have been disposed of Here, the allegations of the complaint relate only to 8(a)(1) violations that at least with respect to the distri- bution of literature, peripherally, relates to a contempo- raneous unfair labor practice related to the 8(a)(3) con- duct alleged in the charge The sole allegation of the charge, however, is not a matter set forth as an allega- tion in the complaint that was issued Although the al- leged discnnunatee in the unpursued termination allega- tion was a witness to the alleged 8(a)(1) removal of union literature, the earlier withdrawn charge on this matter specifically identified two other individuals as being involved Both of these witnesses testified to this effect at the hearing and it accordingly seems apparent that the allegation in the complaint was not closely relat- ed to the charge involving Stone but was derivative of the specific charges previously withdrawn 548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under these circumstances, I find that there is no dis- cernible connection between the employee's termination as alleged in the charge and the Employer's removal of literature and union paraphernalia as alleged in the com- plaint and conclude that the 8(a)(1) allegations m the complaint are not closely related to the controversy that produced the charge In this instance, I find that the demonstrated failure to follow guidelines needlessly encumbered the prompt and effective resolution of the controversy Otherwise, I find no overriding reason to minimize or disregard the failure to follow the Casehandlmg Manual and I conclude that under these circumstances it is not shown that the factual and legal allegations of the complaint and the charge are closely related in a manner consistent with the decision of the Board in Redd-I, Inc , supra (see also the recent decision of the court in G W Galloway Co v NLRB, 856 F 2d 275 (1988)) Accordingly, I further conclude that the Respondent has shown good cause for dismissal of the complaint as requested in its motion CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization uithm the mean- ing of Section 2(5) of the Act 3 The unfair labor practice alleged in the complaint is not closely related to any viable, timely filed charge On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The complaint is dismissed in its entirety 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses