Leukemia and Lymphoma Society

1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 123 Leukemia and Lymphoma Society and Brittany Lynn Doering. Case 16–CA–152958 February 17, 2016 ORDER DENYING MOTION BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On October 29, 2015, the General Counsel issued a complaint alleging that the Respondent, Leukemia and Lymphoma Society, violated Section 8(a)(1) of the Act by terminating its employee, Charging Party Brittany Lynn Doering, for engaging in protected concerted activity, and by maintaining several overbroad handbook rules. The Respondent filed an answer denying the complaint allega- tions and, on November 10, 2015, filed a Motion to Dis- miss the complaint allegations concerning its handbook rules, with supporting argument. The General Counsel filed an opposition, and the Respondent filed a reply to the opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Respondent’s Motion to Dismiss is denied. We find no merit in the Respondent’s contention that the Board lacks jurisdiction over this matter under Section 10(b) of the Act. The General Counsel’s investigative procedure on which the Respondent’s motion relies con- forms to Section 10062.5 of the NLRB Casehandling Manual (Part One) Unfair Labor Practice Proceedings.1 MEMBER MISCIMARRA, concurring. In this case, the Region conducted an investigation into a charge filed May 22, 2015, alleging that the Respondent unlawfully discharged an employee, Brittany Doering, in violation of Section 8(a)(1) of the Act. Respondent has filed a motion to dismiss, arguing that the Board lacks ju- risdiction over the complaint’s broader allegations chal- lenging Respondent’s employee handbook provisions. Specifically, Respondent contends (i) that the complaint’s allegations regarding the employee handbook were 1 Our concurring colleague agrees that the Respondent’s motion to dismiss allegations that it violated Sec. 8(a)(1) by maintaining overbroad handbook rules should be denied. Therefore, we need not address the other matters that he discusses. 1 The Respondent relies on General Counsel Memorandum 15–05, which states (among other things) that “when documents, such as em- ployee handbooks and/or work rules are relevant to an investigation, Re- gions are instructed to obtain copies of these documents,” and “if in ex- amining such documents to investigate alleged violations, the Region no- tices unalleged provisions that may be facially unlawful, Regions are in- structed to bring this potential issue to the attention of the Charging Party, who may amend the charge or file a new charge alleging that the previously unalleged rules are overbroad, discriminatory or otherwise unlawful. This notification to the Charging Party is part of the Agency’s statutory duty of protecting employees from being subject to work rules unrelated to the May 22, 2015 charge; (ii) that the Region engaged in an evaluation of Respondent’s employee hand- book, at its own initiative, pursuant to instructions from the Board’s General Counsel;1 (iii) that the Charging Party, at the Region’s suggestion or direction, subse- quently filed an amended charge dated June 23, 2015, en- compassing the alleged handbook violations; and (iv) that the amended charge, in turn, became the basis for hand- book allegations in the complaint issued by the Region. Respondent also maintains that the complaint’s handbook allegations are barred by the six-month limitations period set forth in Section 10(b) of the Act. At this point, the Board does not have a record that re- flects precisely what occurred during the Region’s inves- tigation. For this reason, I concur in the denial of Re- spondent’s motion to dismiss. However, my colleagues appear to do more than merely deny the Respondent’s motion to dismiss. They appear to reject the Respondent’s arguments on the merits.2 I re- spectfully disagree because I believe the Respondent has raised substantial questions that warrant the development of a factual record, and the Respondent’s arguments should be addressed in the first instance by the judge, sub- ject to potential post-hearing exceptions that may be con- sidered by the Board. In the absence of a factual record, I do not reach whether or not the Respondent’s allegations would establish that the Board lacks jurisdiction over the allegations concerning the Respondent’s employee hand- book. It is not clear what occurred during the Region’s inves- tigation here. Yet, our statute and its legislative history clearly reveal that Congress intentionally divested the Board of authority to undertake investigations and to pur- sue alleged unfair labor practices at the Agency’s own in- itiative. As stated in the Board’s decision in Allied Waste Services of Massachusetts, LLC, 01–CA–123082, – 126843, 2014 WL 7429200 (Dec. 31, 2014), our statute “does not give the Board authority to initiate its own unfair labor practice proceedings.” Id. at *1. See also Sec. 10(b) that violate the Act by prohibiting engaging in Section 7 rights.” GC Memo 1505, at 15. 2 For example, my colleagues indicate that the “General Counsel’s investigative procedure on which the Respondent’s motion relies con- forms to Section 10062.5 of the NLRB Casehandling Manual (Part One) Unfair Labor Practice Proceedings.” Casehandling Manual Section 10062.5 states in relevant part: “Where the investigation uncovers evi- dence of unfair labor practices not specified in a charge, Board agents . . . must determine whether the charge is sufficient to support complaint allegations covering the apparent unfair labor practices found. . . . If the allegations of the charge are too narrow, not sufficiently specific or oth- erwise flawed, the charging party or its representative should be apprised of the potential deficiency in the existing charge and given the oppor- tunity to file an amended charge.” LEUKEMIA & LYMPHOMA SOCIETY 1083 (Board may issue complaints and conduct hearings into alleged unfair labor practices “[w]henever it is charged that any person has engaged in or is engaging in any such unfair labor practice”); National Assn. of Manufacturers v. NLRB, 717 F.3d 947, 951 (D.C. Cir. 2013) (Board can- not enforce the Act unless “outside actors” file an unfair labor practice charge, and “‘neither the Board nor its agents are authorized to institute charges sua sponte’”) (quoting Robert A. Gorman & Matthew W. Finkin, BASIC TEXT ON LABOR LAW, at 10 (2d ed. 2004)).3 The Board has reasonable latitude to investigate alleged unfair labor practices in a manner that may go beyond “the precise particularizations of a charge.” NLRB v. Fant Mill- ing Co., 360 U.S. 301, 308–309 (1959). However, this authority to investigate matters “related to those alleged in the charge and which grow out of them while the proceed- ing is pending before the Board,” id, at 307, does not mean the Board has “carte blanche to expand the charge as [it] might please, or to ignore it altogether.” Id. at 309 (internal quotations omitted). See also G.W. Galloway Co. v. NLRB, 856 F.2d 275, 280 (D.C. Cir. 1988); Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989). In short, the Respondent here argues that the Board im- properly played an affirmative role that caused the com- plaint’s unfair labor practice allegations to exceed the scope of the original charge filed with the Board. The Gen- eral Counsel relies on Petersen Construction Corp., 128 NLRB 969, 972–973 (1960), which suggests it is irrele- vant “that the initial impetus to remedy [an] additional un- fair labor practice may have originated in [a] Regional Of- fice.” See also Earthgrains Co., 351 NLRB 733, 739 fn. 25 (2007). I believe the judge should resolve these com- peting arguments in the first instance based on an eviden- tiary record to be developed in the hearing. Accordingly, I respectfully concur in the denial of Respondent’s motion to dismiss. 3 The earliest Wagner Act legislation, as introduced, would have given the Board broad authority to address matters at the Agency’s own initiative. These bills stated: Whenever any member of the Board, or the executive secre- tary, or any person designated for such purpose by the Board, shall have reason to believe, from information ac- quired from any source whatsoever, that any person has en- gaged in or is engaging in any such unfair labor practice, he shall in his discretion issue and cause to be served upon such person a complaint. . . . Any such complaint may be amended by any member of the Board or by any person des- ignated for that purpose by the Board at any time prior to the issuance of an order based thereon; and the original complaint shall not be regarded as limiting the scope of the inquiry. S. 2926, 73d Cong. § 205(b) (1934), reprinted in 1 NLRB, Legislative History of the National Labor Relations Act of 1935 (hereinafter “NLRA Hist.”) at 6 (emphasis added); H.R. 8434, 73d Cong. § 205(b) (1934), 1 NLRA Hist. at 1133 (emphasis added). By the time the NLRA was enacted, Congress had eliminated the Board’s power to initiate or expand unfair labor practice pro- ceedings at the Board’s initiative, as reflected in the express limitation set forth in Sec. 10(b) (which is quoted in the text). Cf. Sec. 11(1) (permitting Board subpoenas regarding a “matter under investigation or in question”).