G.W. Galloway Co.

National Labor Relations Board - Board Decisions

Aug 29, 1986

281 N.L.R.B. 262 (N.L.R.B. 1986)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. W. Galloway Company and Building Material &
Dump Truck Drivers Local 420, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case 21-
CA-20058
29 August 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 25 August 1982 Administrative Law Judge
George Christensen issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed cross-excep-
tions and a supporting brief and an answering brief
in response to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings,' findings, and conclusions only to the extent
consistent with this Decision and Order.
1. The judge dismissed the complaint on the
basis that the 8(a)(1) allegation contained in the
complaint was factually unrelated to the 8(a)(3) al-
legation contained in the underlying charge and,
therefore, Section 10(b) precluded further proceed-
ings before the Board. The General Counsel ex-
cepts to the dismissal of the complaint and con-
tends that inasmuch as the standard Board "Charge
Against Employer" form contains a printed allega-
tion that the charged party has interfered with, re-
i The Respondent has excepted to the judge's ruling at the hearing
granting the General Counsel's petition to revoke a subpoena duces
tecum served by the Respondent on the Board agent investigating the un-
deryling charge . In its subpoena, the Respondent sought all records, doc-
uments, and memoranda produced and obtained in connection with the
Regional Office's investigation of the charge in order, as contended in its
supporting brief, to adduce evidence that the investigating agent "im-
properly expanded the Board 's investigation from the original charge to
what was finally alleged in the complaint ." At the hearing , the judge re-
voked the subpoena after the General Counsel contended that Sec
102 118 of the National Labor Relations Board Rules and Regulations,
prohibited compliance with the subpoena The General Counsel based his
refusal, inter aha, on the ground that "the highly sensitive and delicate
role of the Board agent in investigating and resolving unfair labor prac-
tice charges would be seriously impaired if a real likelihood existed of the
Board agent's becoming enmeshed as a material witness in cases to which
he has been assigned "
The Board has explicitly recognized the "limited evidentiary privilege
which protects the informal investigatonal and trial preparatory process-
es of regulatory agencies such as the NLRB " Palace Club, 229 NLRB
1128 (1977), quoting from Stephens Produce Co. v. NLRB, 515 F.2d 1373,
1376 (8th Cir 1975) Inasmuch as the Respondent's subpoena seeks the
production of material directly related to the investigatory process and
would likely enmesh the investigating Board agent in the proceeding as a
material witness , we conclude that the judge properly revoked the sub-
poena Moreover, as discussed at sec 1 of this decision, the underlying
charge on its face was sufficient to raise the allegation set forth in the
complaint as revealed during the investigation
strained , and coerced employees in the exercise of
Section 7 rights by "other acts" in addition to
those set forth elsewhere in the charge, the charge
must be deemed to raise for Board consideration
the 8(a)(1) allegations contained in the complaint.
We find merit to the General Counsel's exception.
On 6 March 1981 the Union filed the charge in
this proceeding alleging that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act. In the sec-
tion of the charge form entitled "Basis of the
Charge," the Union alleged as follows:
On or about March 2, 1981, the above-named
Employer discriminatorily discharged Paul Ar-
mendariz because of his activities on behalf of
Teamsters Local 420 or because of his other
protected concerted activities.
Printed at the bottom of this section of the charge
form is the customary "preprinted" wording on all
standard "Charge Against Employer" forms:
By the above and other acts, the above-named
employer has interfered with, restrained, and
coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On 29 April 1981 the Regional Director issued a
complaint alleging that the Respondent violated
Section 8(a)(1) by virtue of the following:
On or about March 3, 1981, Respondent,
through Galloway, at Respondent's facility
... threatened employees with termination
for engaging in union or other protected con-
certed activities.
In dismissing the complaint on the basis that Sec-
tion 10(b) precluded consideration of the 8(a)(1) al-
legation set forth in the complaint, the judge failed
to consider and apply longstanding precedent inter-
preting the significance of the printed allegation
contained in the charge form alleging "other acts"
of interference with and restraint and coercion of
employees' Section 7 rights. See, e.g., Texas Indus-
tries, 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, 468 (1979).
These cases hold that 8(a)(1) allegations contained
in a complaint are properly raised by the "other
acts" allegation set forth in the charge and that
Section 10(b) does not bar consideration of the
8(a)(1) allegations.2 Accordingly, we find it appro-
Y In Clark Equipment Co, 278 NLRB 498 (1986), we recently reaf-
firmed this longstanding principle As we noted in Clark , supra, fn 3, we
again stress the importance of following the guidelines set forth at Sec.
10064 5 of the Casehandling Manual providing 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 )
281 NLRB No. 38
G. W. GALLOWAY CO.
priate to consider the merits of the 8(a)(1) allega-
tion set forth in the complaint.
2. The record reveals that on the morning of 3
March 1981 approximately 25 of the Respondent's
employees commenced a strike . The striking em-
ployees assembled outside the Respondent's facility
and picketed carrying signs bearing various leg-
ends, such as "Unfair Wages," "No Benefits,"
"Better Insurance ," and "More Money." Later that
morning, the Respondent's president and chief op-
erating officer, James J. Galloway, appeared at the
picket line and addressed the striking employees.
Galloway offered to meet with each striker on an
individual basis but stressed that he was not there
to negotiate with the employees as a group . Gallo-
way expressly told the strikers that the Respondent
"would have to terminate and replace " those em-
ployees who failed to "go back to work." Follow-
ing Galloway's remarks , the striking employees
conferred and returned to work.
Based on the foregoing , we find that the Re-
spondent violated Section 8(a)(1) by virtue of Gal-
loway's threat to terminate striking employees who
refused to return to work. In finding these remarks
violative, however , we emphasize that this clearly
is not a case where an employer has attempted
truthfully to explain to employees its legal preroga-
tive to hire permanent replacements without fully
detailing the protections accorded to strikers as
enumerated in Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
denied 397 U.S. 920 (1969). See Eagle Comtronics,
263 NLRB 515 (1982). Here, the Respondent's ex-
press threat to "terminate" strikers who failed to
return to work may be fairly understood as a direct
threat of reprisal against employees in retaliation
for their Section 7 activity of striking . Dayton Food
Fair Stores, 165 NLRB 14, 20 (1967), enfd. per
curiam in relevant part 399 F.2d 153, 154 (6th Cir.
1968), cert . denied 393 U.S. 1085 (1969). The coer-
cive impact of these remarks in no way is tempered
by the Respondent 's pronouncement that the em-
ployees to be terminated also would be replaced.
Under any reasonable view, we find that Gallo-
way's remarks were coercive in character . Accord-
ingly, we conclude that the Respondent violated
Section 8(a)(1) as alleged.
CONCLUSIONS OF LAW
By threatening employees with termination for
engaging in a strike protected by Section 7 of the
Act, the Company has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
263
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(1) of the Act, we shall order it to
cease and desist therefrom and to take certain af-
firmative action to effectuate the policies of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent , G. W. Galloway Company, Los
Angeles, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with termination for
engaging in a strike protected by Section 7 of the
Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility in Los Angeles, California,
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
8 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with termination for
engaging in a strike protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
G. W. GALLOWAY COMPANY
David M. Pill and Frank M. Wagner, Esqs., for the Gen-
eral Counsel.
Donna Lewis Colaianni, Esq. (Patterson & Taggert), of Los
Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Administrative Law Judge.
On February 4, 1982, 1 conducted a hearing at Los An-
geles , California, to try issues raised by a complaint
issued on April 29, 1981,1 based on a charge filed by
Local 420 on March 6 alleging the Company violated
Section 8(a)(1) of the National Labor Relations Act (the
Act) by the company president's March 3 statement to
striking employees they would be terminated if they did
not go to work.
The Company moved to dismiss the complaint on the
ground Section 10(b) of the Act bars the General Coun-
sel from proceeding under a complaint specifying an
unfair labor practice unrelated to the unfair labor prac-
tice set forth in the underlying charge unless the Charg-
ing Party or some other person has filed a timely new or
amended charge specifying the unfair labor practice al-
leged in the complaint, asserting this as the situation in
this case. The Company in the answer to the complaint
denies its president Q. J. Galloway) made the statement
alleged in the complaint as the unfair labor practice com-
mitted by the Company and denied violating the Act.
The issues for determination are: (1) whether the
unfair labor practice specified in the complaint is unrelat-
ed to the unfair labor practice specified by the Charging
Party, Local 420; (2) if so, whether Local 420 or any
other person timely filed a new or amended charge
specifying by the unfair labor practice alleged in the
complaint the Company violated the Act; (3) if not,
whether the complaint should be dismissed; and/or (4) if
not, what statement Galloway made and whether by that
statement the Company violated the Act.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
i Read 1981 after all further date references omitting the year
examine and cross-examine witnesses , to argue, and to
file briefs. The General Counsel argued orally prior to
the close of the hearing and submitted a brief memoran-
dum of law; counsel for the Company submitted a brief.
Based on my review of the entire record, observation
of the witnesses, and perusal of the oral argument, legal
memorandum , and research , I enter the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find at
all pertinent times the Company was an employer en-
gaged in commerce in a business affecting commerce and
Local 420 was a labor organization within the meaning
of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Facts
At times pertinent the Company employed approxi-
mately 60 employees to manufacture hydraulic lifts and
bridges at a factory located in Baldwin Park, California.
Its employees were not represented by any labor organi-
zation.
On March 2 the Company discharged employee Paul
Armendariz. On March 3, shortly before the starting
time of the day shift, approximately 25 employees assem-
bled outside the plant and began to picket, carrying
crudely lettered signs reading : "Unfair Wages," "No
Benefits," "Better Insurance," "More Money," and simi-
lar legends. The signs did not identify Local 420 as their
sponsor or author.
J. J. Galloway arrived at the plant about 8 a.m., ob-
served the strikers and the signs, and proceeded into the
plant. After checking to see how many employees were
at work, he proceeded out to the picket line, accompa-
nied by Juan Flores.2
When the strikers gathered around him, Galloway told
them neither they nor the Company was making any
money while they were out on the street, asked them to
go to work, and stated, following their reporting for
work, he would conduct individual meetings with each
striker who wished to meet with him to discuss and at-
tempt to rectify any grievances or complaints that indi-
vidual had. A spokesman for the strikers responded the
strikers wanted to participate as a group in a discussion
with Galloway concerning their complaints and their
proposals for resolving them, and several strikers recited
their complaints (inability to pay a wife's dental bills in
the absence of dental insurance and/or a higher income,
etc.). Galloway stated he was not there to negotiate, re-
peated his offer of individual meetings, and closed with
the statement the Company would terminate and replace
B Galloway testified Flores was a supervisor Although in its answer
the Company admitted Galloway was an officer and supervisor of the
Company, it denied he was an agent thereof. I find at all pertinent times
Flores and Galloway, by virtue of their positions and authority, were su-
pervisors and agents of the Company acting on its behalf within the
meaning of Sec. 2 of the Act
G. W. GALLOWAY CO.
any striker who did not come in to works When Gallo-
way left the scene, the strikers conferred, decided to go
to work, and did so.
On March 6 Local 420 filled out and filed a printed
charge form furnished by the Region, inserting under the
heading, "Employer Against Whom Charge Is Brought,"
the telephone number, business, employer representative,
and number of workers employed in the appropriate
boxes, placing the number "(3)" in box "h" as the sub-
section of the Act alleged to have been violated, and
placing under the heading, "Basis of the Charge," the
following:
On or about March 2, 1981, the above-named Em-
ployer discriminatorily discharged Paul Armendariz
because of his activities on behalf of Teamsters
Local 420 or because of his other protected activi-
ties.
On April 29 the Region issued its complaint in the in-
stant case . The complaint alleges a single violation of a
single subsection of the Act, Section 8(a)(1), namely,
that:
On or about March 3 , 1981 , Respondent , through
Galloway , at Respondent 's facility described in
paragraph 2(a) above, threatened employees with
termination for engaging in union or other concert-
ed activities.
The record does not disclose that Local 420 or any
other person ever filed a new or amended document
with the Region charging by the alleged March 3 Gallo-
way statement the Company violated the Act.
B. Analysis and Conclusions
1. The relationship between the charge and the
complaint
The single unfair labor practice alleged in the charge
and the single unfair labor practice alleged in the com-
plaint are unrelated.
The charge alleges the Company violated Section
8(a)(3) (and , derivatively, Sec. 8(a)(1)) of the Act by dis-
charging employee Paul Armendariz on March 2 because
of his union or other concerted activities protected by
the Act.
The complaint alleges the Company violated Section
8(a)(1) of the Act by a March 3 threat to terminate em-
ployees for going on strike that day.4
There was no evidence the March 3 strike either
"grew out of or was "related to" the March 2 dis-
charge5 (see National Licorice Ca v NLRB, 309 U.S. 369
8•The findings in this paragraph are based on documentary evidence,
the pertinent testimony of witnesses, and their demeanor.
4 Counsel for the Company stated that the Regional Director, about
the time he issued the complaint , formally advised Local 420 and the
Company that he was unable to develop any evidence the Company
either knew Armendariz was engaging in any union or other concerted
activities protected by the Act at the time of, or prior to, his discharge,
or that Armendariz was discharged for engaging in any such activity,
and he therefore would not issue a complaint so alleging.
8 On the contrary , the sole thrust of the evidence was the employees
who struck on March 3 did so to secure improved wages and benefits.
265
(1940), and NLRB v. Fant Milling Co., 360 U.S. 301
(1959), in which the Supreme Court enunciated the
quoted language as the appropriate test for whether a
complaint might encompass an unfair labor practice not
specified in an underlying charge).
On the basis of the foregoing, I find the unfair labor
practice alleged in the charge and the unfair labor prac-
tice alleged in the complaint were unrelated, and that the
latter neither "grew out of" nor was "related" to the
former.
2. The timely filing of any new or amended charge
alleging the unfair labor practice set out in the
complaint
No evidence was produced in the course of the hear-
ing that at any time prior thereto either Local 420 or any
other person filed any charge or amended charge alleg-
ing the Company committed an unfair labor practice in
violation of Section 8(aXl) of the Act on March 3, 1981,
by threatening to terminate those of its employees who
went on strike that day.
I therefore find and conclude no such charge or
amended charge was filed within a 6-month period fol-
lowing March 3, 1981.
3. Does the foregoing warrant dismissal of the
complaint?
While over the years the Board and the courts have
liberally interpreted Section 10 (b) of the Act to remedy
unfair labor practices set out in a complaint (and subse-
quently supported by the weight of evidence produced
in hearing thereon), despite the failure of the underlying
charge to specify the substance thereof,6 they generally
have done so on the basis of the test set out above, i.e.,
that the unfair labor practices set out in the complaint
but not specified in the underlying charge were "related
to those alleged in the charge and grow out of them."
(National Licorice, ibid.) In all the cases just cited, unfair
labor practices specified in the charge and unfair labor
practices which were related to, and grew out of, those
specified unfair labor practices but were not specified in
the charge were held to comply with the requirements of
Section 10(b).7
In a number of the more recent cases addressing the
subject, the Board has adopted the Dinion Coil test,8
namely, that the unfair labor practices alleged in the
complaint but not specified in the underlying charge be
e National Licorice Ca Y. NLRB, ibid .; NLRB Y. Font Milling, ibid.;
NLRB Y. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952); NLRB Y. Pecheur
Lozenge Co., 209 F.2d 393 (2d Cir. 1953); NLRB v. Kohler Co., 220 F.2d 3
(7th Cir. 1957); NLRB v. Raymond Pearson , Inc., 243 F.2d 456 (5th Cir.
1957); NLRB v. Kiekhafer Corp., 292 F.2d 130 (7th Cir. 1961); NLRB v
Reliance Steel Products, 322 F.2d 49 (5th Cir . 1963); NLRB V. Texas In-
dustries, 336 F . 2d 128 (5th Cir . 1964); NLRB P. Operating Engineers Local
925, 460 F.2d 589 (5th Cir . 1972); NLRB v. Quality Transport, 511 F.2d
1190 (5th Cir. 1975); Proctor & Gamble Mfg. Co. P. NLRB, 658 F.2d 968
(4th Cir. 1981).
7 Sec . 10(b) bars the General Counsel from proceeding without an un-
derlying charge filed by a "person " outside the Agency.
8 NLRB v Dinion Coil, ibid.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"closely related" to those specified in the charge,° dis-
missing any complaint where such relationship did not
exist (in the absence of the filing of a timely charge al-
leging the specifics of the unfair labor practice alleged in
the complaint). 10
Because I have entered findings that the unfair labor
practice specified in the complaint neither grew out of
nor was related to the unfair labor practice specified in
the charge and neither Local 420 nor any other person
filed a timely charge alleging the unfair labor practice
specified in the complaint, I find and conclude Section
9 North Country Motors, 133 NLRB 1479 ( 1961); Sunrise Manor Nursing
Home, 199 NLRB 1120 (1972), Pennco. Inc, 212 NLRB 677 (1974),
NLRB v. Operating Engineers Local 925, 1bid ; United Technologies Corp,
260 NLRB 1430 (1982).
10 New York Shipping Assn, 112 NLRB 1047 (1955), Stokely-Bordo, 130
NLRB 869 ( 1961); Champion Pneumatic Machinery Co., 152 NLRB 300
(1965), Prince Pontiac, 174 NLRB 919 (1969); Sunnen Products, 189
NLRB 826 (1971), Asko, Inc, 202 NLRB 330 (1973); Industrial Workers
AIW Local 594 (Warren Plastics), 227 NLRB 1541 (1977), Red Food Store,
252 NLRB 116 (1980)
10(b) of the Act precludes further proceedings before the
Board concerning the unfair labor practice specified in
the complaint and grant the Company's motion to dis-
miss the complaint.
In view of the foregoing , I find it unnecessary to ad-
dress the merits of the unfair labor practice set out in the
complaint.
CONCLUSIONS OF LAW
1. At all pertinent times the Company was an employ-
er engaged in commerce and Local 420 was a labor or-
ganization within the meaning of Section 2 of the Act.
2. The unfair labor practice set out in the complaint
neither grew out of nor was related to the unfair labor
practice set out in the charge.
3. No timely charge was filed by Local 420 or any
other person alleging the unfair labor practice set out in
the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]