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09/09/88 G.W. Galloway Company, v. National Labor

September 9, 1988





Petition for Review of an Order of the National Labor Relations Board.


Robinson, Starr and Buckley, Circuit Judges. Opinion for the Court filed by Circuit Judge Robinson.


G.W. Galloway Company (Galloway) petitions this court to review and set aside a cease and desist order issued against it by the National Labor Relations Board *fn1 on the ground that the Board strayed beyond the jurisdictional boundaries set out in Section 10(b) of the National Labor Relations Act. *fn2 We agree that on the facts of this case the Board overreached, and accordingly we annul the Board's order. I. THE FACTUAL BACKGROUND

Local 420 of the International Brotherhood of Teamsters filed an unfair labor practice charge *fn3 against Galloway, alleging that its firing of Paul Armendariz, an employee, violated Sections 8(a)(1) and (3) of the Act. *fn4 The charge was typed on a preprinted form supplied by the Board. In the space provided for the specifics of the charge, the union stated that Galloway "discriminatorily discharged Paul Armendariz because of his activities on behalf of Teamsters Local 420 or because of his other protected concerted activities." *fn5 Printed on the bottom of the form was a statement, appearing on all such forms provided by the Board, that "by the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act." *fn6 The Board investigated the union's allegation of improper discharge, but it dismissed the charge without filing a complaint concerning the incident.

During the course of the investigation of the charge, however, the Board became aware of another incident at the Galloway plant that it believed to have been in contravention of Section 8(a)(1). *fn7 On the day after Armendariz was discharged, approximately 25 Galloway employees, unhappy with wages and benefits, commenced a strike and formed a picket line in front of the plant. When James J. Galloway, the president of the company, arrived at the plant, he indicated to the striking employees that he was willing to discuss their grievances individually, but that he would not meet with them as a group. He also warned that any employee who did not return to work would be terminated and replaced. Faced with this ultimatum, the employees conferred and returned to work. *fn8

The Board issued a complaint averring that through the statements made to the strikers, Galloway had impermissibly threatened them with termination for engaging in protected concerted activity in violation of Section 8(a)(1) of the Act. *fn9 Neither the union nor any of the employees involved in the strike ever filed a charge concerning this incident, nor was the union's charge amended to include it. After a hearing, an administrative law judge dismissed the Board's complaint, concluding that a prerequisite to issuance of a complaint under Section 10(b) -- relationship of the allegations in the charge and those in the complaint -- was absent in this case. *fn10

Without specifically addressing the holding that the charge and the complaint were unrelated, the Board reversed on the ground that the administrative law judge had "failed to consider and apply long standing precedent." *fn11 Although the Board made oblique reference to a requirement in its case handling manual that the complaint contain only allegations "' related to the specifications of the charge,'" *fn12 it claimed that under this precedent the preprinted language in the charge form, stating that the company had engaged in "other acts" of interference with Section 7 rights, was sufficient to allow the Board to institute the complaint. *fn13 After disposing of this procedural challenge, the Board found that Galloway had violated the Act through the action of its president, and issued an accompanying cease and desist order. *fn14 II. THE REQUIREMENTS OF SECTION 10(b)

In relevant part Section 10(b) provides:

Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect. . . .

The Board concedes that this section obliges it to await a charge before it may initiate an investigation or issue a complaint. *fn16 It also acknowledges that the mere filing of a charge against a party does not give the Board unlimited power to pursue all possible violations of the Act which that party may have committed. *fn17 The Board contends, however, that the "other acts" language printed on the Board-supplied charge form is "legally sufficient to support a complaint alleging infringements of Section 8(a)(1) that were not specifically stated in the charge." *fn18 The Board further asserts that if a factual relationship between the allegations in the charge and those in the complaint is necessary to satisfy the strictures of Section 10(b), that requirement is met in the present case. *fn19

We disagree with both of the Board's arguments. The legislative history and judicial interpretation of Section 10(b) make clear that the allegations in the Board's complaint must be "'related to'" *fn20 those in the charge. This rules out the thesis that the "other acts" language alone can serve to broaden the permissible scope of a complaint. Moreover, we have searched in vain for the ...

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