National Labor Relations Board v. Fant Milling Company

258 F.2d 851, 42 L.R.R.M. (BNA) 2566, 1958 U.S. App. LEXIS 5058

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 1, 1958
• Docket: 16953_1
• Status: Published

Opinions

CAMERON, Circuit Judge.

The question presented by Petitioner’s prayer for enforcement of its order of April 19,1957 is whether the Respondent, pursuant to its duty as imposed by National Labor Relations Act,¹ bargained in good faith with respect to the matters contained in the charge filed against it by its certified Union. Respondent, Fant Milling Company, was, during the period involved, engaged in the business of milling flour at Sherman, Texas, and employed about two hundred people. Pursuant to an election, American Federation of Grain Millers, AFL, was certified June 26, 1953 as the exclusive bargaining agent for its employees.

From August 13,1953 to November 19, 1954 Respondent and the Union met on nineteen different occasions in which discussions were held directed towards working out a contract between the parties.² The meetings between the parties were conducted by the local officers and attorneys of the Company, on the one side, and two national representatives of the Union from Oklahoma and a local committee of three to six employees, on the other. No contract having been agreed upon, Respondent, having concluded that the Union no longer represented a majority of its employees, on October 7, 1954 granted a general wage increase to its employees after discussion with the Union representatives but without specific notice to them; and, on November 19, 1954, it posted a notice that it was informed that the Union no longer represented the majority of employees and that it would not do business further with the Union, but would deal directly with its employees.

The Union had, many months prior thereto, filed a charge of unfair labor practices against Respondent upon which, fifteen months later, a complaint was issued; and a hearing was held before a Trial Examiner, who entered his intermediate report finding Respondent guilty of failure to bargain in good faith, and recommending that a cease and desist order be entered. The Board, one member dissenting,³ adopted the Trial Examiner’s report and entered the order which it is seeking to have us enforce.

The question before us will be resolved largely upon a determination of the effect of evidence as to what transpired long after the charge was filed, and as to negotiations and actions of the parties not embraced in or contemplated by the charge.⁴ The Trial Examiner and the Board predicated their orders essentially on the withdrawal of union recognition, one step in which process was the wage increase of October, 1954. The dissenting member has set forth succinctly his estimate of the attitude of the majority and the basis of its decision, and we quote in the margin some excerpts from his dissent.⁵ We agree with the estimate and the conclusions as set forth in the quoted portions of this dissent.

An understanding of the significant facts with which we are dealing requires that a few decisive dates be kept in mind. May 20, 1954, the Union filed its charge of unfair labor practices, naming November 21, 1953 as the date of their beginning (in recognition of the 6 months period provided in the statute). At the time the charge was filed, eleven bargaining sessions had been held and a wage increase had been given certain employees effective April 19. July 13, the Regional Director refused to issue a complaint based upon this charge, and July 31 the Union filed a written request for review of this refusal, which the dissenting member treated as an appeal to the General Counsel. November 20, the Company posted a notice withdrawing its recognition of the Union as bargaining agent, preceded by the general wage increase of October 7. January 24, 1955, the Regional Director withdrew his refusal to issue the complaint and followed this action with the issuance of a complaint August 17, 1955. Eight bargaining sessions had been held between the date of the filing of the charge and the date of the issuance of the complaint.

The charge signed by Ralph Cox, international representative for the Union, was made out on a printed form and we quote in the margin the contents of the charge under the printed heading “Basis of the Charge.” ⁶ The complaint, issued about fifteen months thereafter and based on the charge of May 20, begins, with the statement: “It having been charged by American Federation of Grain Millers * * * that Respondent has engaged in and is now engaging-in certain unfair labor practices * * * the General Counsel * * * hereby alleges as follows.”⁷’* Both the complaint, and the notice of hearing referred to the charge of May 20, 1954, and a copy of that charge was therewith served upon Respondent.

In summary, therefore, the determinant facts are these: May 20, 1954, the Union filed a charge of unfair labor practices based upon Respondent’s actions during the six months preceding that date. The Regional Director refused to file a complaint based upon that charge and those actions. Fifteen months after the charge had been filed, the Regional Director issued and served the complaint before us purporting to be based upon it, but setting up, as the only factual recital of an unfair labor practice, a wage increase granted 4% months after the filing of the charge. Based upon this wage increase of October 7 and the ensuing withdrawal of recognition of the Union, the Trial Examiner and the Labor Board concluded that Respondent had failed to bargain in good faith with the Union. It is perfectly plain, as set out in the dissenting member’s language quoted supra, that, without these happenings more than four months after the filing of the charge, the order before us would not have been entered — in fact, the complaint would not have been issued.

We think the order was not justified by, but was in plain disregard of, the statute which alone vested the Board with authority to act:

“Whenever it is charged that any person has engaged in or is engaged in any such unfair labor practice, the Board * * * shall have power to issue and cause to be served upon such person a complaint staling the charges in that respect, and containing a notice of hearing before the Board * * *: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * * Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. * •» «” [Emphasis added.] 29 U.S.C.A. § 160(b).

Since the authority of the Board derives solely from the statute, it is clear that effective action can be taken only when the machinery set up by the statute is substantially followed. It is further clear that a charge must set up facts showing an unfair labor practice as defined in 29 U.S.C.A. § 158, and the facts must be predicated on actions which have already been taken. When the Board is satisfied that the facts contained in the charge have been substantiated, it or its agents then have power to issue and serve upon the person charged with the improper action “a complaint stating the charges in that respect.” This language can have no meaning except that the complaint must faithfully reflect the facts constituting the unfair labor practices as presented in the charge.

Assuming that another charge could have been filed embracing the happenings of October and November, 1954, or the original charge amended to include them, it was not proper for the Board to proceed on the basis of the charge of May 20, 1954 and enter the order here before us bottomed upon actions taken more than four months later.⁸ That this is what it did is exemplified by what the Board said was the issue it was trying: “The issue before us is whether the Respondent, in this long course of dealing with the Union, fulfilled its duty to negotiate in good faith so as to justify its refusal in November 1954 to prolong the discussion of collective bargaining issues, or whether on the other hand it evaded its legal duty and was thus without warrant in November 1954 and thereafter for refusing to meet with the Union.” Substantially eight of the eleven pages constituting its decision are devoted to a discussion of what transpired in September, October and November.⁹ If the Board could thus adjudicate the rights of the parties on such subsequent actions which as far as the record reveals, developed from the later stages of the negotiations, using the period covered by the charge merely as background, the statutory scheme would be frustrated and the charge, which alone conferred jurisdiction, would serve only as the trigger to set the mechanism in motion, leaving the Board and its agent carte blanche to expand the charge as they might .please, or to ignore it altogether.

The Board predicated its authority to try the charge on the issues thus defined by it, on our case of N.L.R.B. v. Anchor Rome Mills, Inc., 1956, 228 F.2d 775. We do not agree that the cases are apposite. Anchor involved refusal of the employer to hire and keep 346 named persons who had engaged in a strike against it. Two charges were filed by the union, one in November, 1949, and the other in May, 1950, and both were couched in very broad terms. The complaint filed by the General Counsel averred that, at all times since the first date charged, Anchor had refused to employ the named persons because of their activity on behalf of the union and because they had engaged in the strike.

The Board relied upon our quotation there from a decision of the Seventh Circuit in N.L.R.B. v. Kohler Co., 1955, 220 F.2d 3, 8, that “The six month limitation refers only to acts that occur before the charge and does not prohibit the inclusion of similar or related acts happening after the charge.”¹⁰ The similar and related acts there referred to consisted of mere repetitions of applications by the former employees named in the charges which had been made within the two six-month periods covered by them.¹¹

We do not have any similar situation here. This charge grew out of the seven bargaining sessions held between November 21, 1953 and May 20, 1954. Neither the Trial Examiner nor the Board found, and the evidence does not reflect, that any lack of good faith was practiced during that period. The parties had discussed at length, paragraph by paragraph, a contract proposed by the Union; and Respondent had also submitted its own version of a contract. The question of seniority was discussed at six of the meetings, vacations at five, arbitration at three, duration of the contract at one, overtime at two, shifts at four, holidays at three, grievances at two, and wages at five of the meetings during the six month period.

The limited raise in wages of April 19 was the result of the discussions between the parties and was initiated by the Union.¹² While the Union representatives testified that they did not think they were notified of this wage increase, it is clear that the Company merely adopted the Union’s proposal in making these minor adjustments. At all events, the Union made no objection or protest to what was done, and did not list this wage adjustment as an unfair labor practice when, within about four weeks, it filed its charge setting forth its grievances against the Company.

This Court has given a clear indication of the limitations surrounding the reception of evidence of transactions outside the six month statutory period, N.L.R.B. v. I.B.S. Mfg. Co., 1954, 210 F.2d 634, 636-637:

“He [the Trial Examiner] also agreed with the general counsel that evidence of events antedating the six months’ period could properly be offered and considered as background evidence in determining whether respondents had violated the act. * * *

“ * * * It is one thing to hold, as we have done, that it is admissible to add two or three names to the list of discharges after the period, or to otherwise amplify and expand a charge by the addition of details in line with its general substance. It is quite another to hold that an entirely new and different cause of action based on matters occurring more than six months before the cut off date for the filing of the charge may be asserted.” [Emphasis added.]

These words of Chief Judge Hutcheson are in keeping with what we held in N.L. R.B. v. Newton, 1954, 214 F.2d 472, where we quoted at length (at pages 474-475) from the Seventh Circuit case of Indiana Metal Products Corp. v. N.L.R.B., 1953, 202 F.2d 613, 619, and is consonant with our recent holding in White v. N.L.R.B., Apr. 23, 1958, rehearing denied May 29, 1958, 255 F.2d 564.

What the Trial Examiner and the Board have done in the case before us is to issue an order against Respondent based upon its withdrawal of union recognition more than four months after the filing of the charge in the course of which a general across-the-board wage increase was granted. If the Union desired this issue to be placed before the Board, it had substantially ten months before the complaint was issued in which to file a new or an amended charge. For some reason the Union chose not to do this, and the Board and its agencies were without power under the law to do it for them, or to consider it as having been done. No serious argument is made that the order is, or could be, based upon anything happening prior to May 20, the time the charge was filed, or even prior to October 1. For these reasons, the petition to enforce the order of the Board is

Denied.

1 . 29 U.S.C.A. § 151 et seq.

2 . These meetings were held August 13, September 5 and 26, November 12, and December 9, 1953; and January 8 and 29, April 2, 8, 19 and 22, May 6 and 21, June 11, July 16 and 30, August 27, September 17, October 15, and November 19, 1954.

3 . 117 N.L.R.B. 1277.

4 . Respondent urges that the Board’s finding was not based upon substantial evidence. The Trial Examiner, alter noting that the parties had settled upon a good many minor matters, stated: “It seems almost inconceivable that company representatives could sit down over the long period of time with Union representatives as they did here and not be considered to have been bargaining in good faith.” The challenge of this statement and the impressions made upon us by the oral arguments stimulated us to read this long record rather than to rely upon the appendices. At the outset, one is struck with the fact that the Company pitted two “local boys,” unskilled in such matters, against two experts who made the negotiation of contracts their life’s work; and with the fact that the Company shackled its representatives at the outset by requiring the statement to be made that certain areas of agreement would never be included in a contract. Under N.L.R.B. v. Denton, 5 Cir., 1954, 217 F.2d 567, and N.L.R.B. v. J. H. Rutter-Rex Mfg. Co., 5 Cir., 1956, 229 F.2d 816, this alone would tend to cast suspicion from the start upon the Company’s negotiations.

The Regional Director first turned down the Union’s charges, and there is not in the record more than a hint of anything improper until after October 1, more than a year after the negotiations had been begun.

Both sides proved themselves hard traders, but neither the Trial Examiner nor the Board is able to point out anything smacking of the shrewd and sinister scheming and action necessarily included in the deliberate adoption of a course of negotiations as a mere pretense.

The final action disowning the Union and granting the wage increase, which the Company claimed was necessary to hold its workers against the overtures of its competitors, tend naturally to arouse suspicions and to entice reliance upon the specious doctrine post hoc ergo propter hoc. But we have said that “It is necessary that the courts make it clear” that the finding of the Board must be based “upon clear proof derived from evidence and not from suspicion and conjecture * * ®”. See, infra, N.L.R.B. v. I.B.S. Mfg. Co., 210 F.2d 634, at page 638.

But it is not necessary for us to sustain this contention of Respondent because the other points fully discussed in the opinion clearly require that we deny enforcement.

5 . “A reading of their [the majority’s] opinion shows that the crucial element in their evaluation of the course of the Respondent’s conduct is the wage increase lohieh the Respondent gave its employees in October, 1954. Thus their opinion is almost entirely devoted to a consideration of that wage increase, and they have candidly admitted that the Respondent’s granting of the wage increase has given them a ‘final insight’ into the Respondent’s conduct of negotiations with the Union. My colleagues’ decision appears therefore to affirm the Regional Director’s decision not to issue a complaint on the basis of his evaluation of the Respondent’s conduct preceding the October 1954 wage increase. And I, too, agree that but for the wage increase there would be no case whatever against the Respondent. But as this case turns on the it;age increase, the critical issue is whether the wage increase — which occurred after the Union filed its charge, and which was not made the subject of a second, or amended, charge — may latofully be made the basis of a finding that the Respondent violated the Act. In my opinion, it may not.

* * * * *

“The Courts of Appeals for the Seventh and Fifth Circuits have held respectively, in the Indiana Metals [Indiana Metals Products Corp. v. N.L.R.B., 7 Cir., 1953, 202 F.2d 613] and Newton [N.L.R.B. v. Newton, 5 Cir., 1954, 214 F.2d 472, 475] cases, that Section 10(b) precludes the finding of an unfair labor practice predicated on acts that occurred subsequent to the filing and serving of a first charge and more than 6 months prior to the filing and serving of an amended charge, even though the acts in question were similar to those alleged in the charges. * * *

“In the instant case, the Respondent’s October 1954 wage increase occurred about 5% months after the charge was filed, and almost 10 months before the complaint issued. The October wage increase — which according to the mar-jority is the mob of the case against the Respondent — -was never made the subject of a second or amended charge. Accordingly, even if the complaint herein be regarded as a substitute for such a second or amended charge, the Board is, by virtue of Section 10(b), and under the holdings of the Indiana Metals and Newton cases, precluded from predicating a violation of the Act on the basis of that October wage increase. This conclusion is impelled by the language of Section 10(b) for, as the Court said in the Newton case, ‘Without the limitation, we home placed on Section 10(b) of the Act, its provisions would be rendered meaningless to a great extent.’ ” [Emphasis added.]

6 . “On or about November 20, 1953, it, by its officers, agents and employees, refused to bargain collectively with the authorized agents of American Federation of Grain Millers, AFL, chosen by a majority of its employees at its plant to represent them for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.

“On or about the dates set opposite their respective names below, it, by its officers, agents and employees, terminated the employment of: Tony Polk April 23, 1954 Clyde Gordon April 23, 1954 W. M. Morris April 24, 1954 OnnieRay April 24, 1954 because of their membership and activities in behalf of' American Federation of Grain Millers, AFL, a labor organization, and at all-times since such dates it has refused and' does now refuse to employ the above named employees.

“By the acts set forth in the paragraphs above, and by other acts and-conduct, it, by its officers, agents and employees, interfered with, restrained' and coerced its employees in the exercise of the rights guaranteed in Section. 7 of the Act.”

7 . “8. On or about November 21, 1953, and at all times thereafter, Respondent did' refuse and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the unit described above in, paragraph 5.

“9. On or about October 7, 1954, Respondent, without notice to the Union, put into effect a general wage increase for all employees in the unit described' above in paragraph 5.

“By the acts described in paragraphs 8 and 9, Respondent did engage in and is thereby engaging in an unfair labor-practice within the meaning of section, 8(a), subsection (5) of the Act.”

8 . Respondent, by timely motions and continuing objections, tried without success to limit the decisive period to the six months covered by the charge.

9 . The Trial Examiner also devoted the greater part of his report and findings to a discussion of the company’s right to break off negotiations with the union.

This paragraph epitomizes his concept of what was before him:

“An important question here is whether or not the records reflect a refusal on the part of the Respondent to bargain at a time when it was honestly at an impasse with the Union and was fully convinced that the Union no longer represented a majority of the employees in the bargaining unit, or whether the Respondent’s refusal to bargain was not motivated by a good faith doubt of the Union’s majority status. The critical question is whether under the circumstances of this case the employer was entitled to withdraw recognition of the Union on the basis of a good faith doubt as to the Union’s majority. [Oiting several cases.]”

10 . What the Seventh Circuit said in the Kohler case, at 220 F.2d at page 7, is worthy of note here:

“ * * * if it [the Board] gets so completely outside of the situation which gave rise to the charge that it may be said to be initiating the proceeding on its Own motion, then the complaint should fall as not supported by the charge.

11 . Petitioner also relies heavily on our case of N.L.R.B. v. Harris, 1953, 200 F.2d 656, 658. The two cases do bear some resemblance in their facts, but the action taken in Harris subsequent to the filing of the several charges was merely a carrying out of what had been determined upon before the last charge was filed, and was merely the culmination, closely related in point of time, of a series of closely related happenings during the period covered by the charges.

In Harris, the union and the employer had negotiated for 3% years, and in early January, 1950, it appeared that the negotiations were to be fruitful. January 7, the union advised the employer that it desired to discuss the new statutory minimum wage schedule to become effective January 25. The employer consented to meet with the union in early February, and the union pressed for a definite date, but the employer finally postponed the meeting until February 18 or 20. In the interim, the employer had raised wages and the union promptly advised that in so doing, it had breached the agreement between them and that the union would file charges. Upon receiving such advice, the employer responded that no further negotiations-would be conducted “until the situation-is clarified.” This response was contained in a letter dated February 16, two-days after the union had filed its last charge.

The basis of the Board’s finding was that the employer had refused to bargain in good faith from the time it was-advised, on February 10, that the union-would file charges. This threat, within the-ambit of the charges, caused the employer to break off negotiations, but notice of its action was deferred until two days after the last charge was actually filed. The Board held that this two-day delay, under the circumstances, was not fatal to the right of the Board to pass upon the action then taken. Our opinion states that further wage increases and work benefits were made by the employer subsequent to February 16, the time lapse not being indicated. At all events, it was the break, actually consummated before the last charge was filed but confirmed in writing two days after, which lay at the base of the Board’s decision, which we affirmed. The difference between that case and this one is too apparent to require elaboration.

12 . Cox, the Union’s negotiator, testified:

“I asked the company to take a look at the wage rate in the feed mill, that it appeared to me that there was too many classifications on the $1.36 rate, that it seems to me there was a need for some wage adjustment on those classifications. I asked them to look at it and consider it so we could discuss it at the next meeting.”

The quoted testimony referred to the meeting of April 8. At the next meeting on April 22, the Company complied with the Union’s request that the wage adjustments be then discussed by advising that it had considered the Union’s suggestions and had made the adjustments as requested ranging from two to five cents per hour to some of the employees of the feed mill, same to be effective as of April 19.