Nickles Bakery Of Indiana, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 927 (N.L.R.B. 1989)

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.