Nippondenso Manufacturing U.S.A., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1990

299 N.L.R.B. 545 (N.L.R.B. 1990)

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later withdrawn April 19 That charge alleged that the Respondent had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