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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2003 Decided July 11, 2003
No. 02-1164
& No. 02–1203
PRECISION CONCRETE,
PETITIONER/CROSS–RESPONDENT
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT/CROSS–PETITIONER
SOUTHWEST REGIONAL COUNCIL OF CARPENTERS F/K/A
SOUTHERN CALIFORNIA–NEVADA REGIONAL COUNCIL OF
CARPENTERS, AND LABORERS LOCAL UNION NO. 872,
INTERVENORS
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Donald C. Zavala, Jr. argued the cause for petitioner.
With him on the briefs was Gerard Morales.
Michael H. Carlin, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Margaret A. Gaines,
Supervisory Attorney. Fred B. Jacob, Attorney, entered an
appearance.
David A. Rosenfeld was on the brief for intervenor.
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Precision Concrete petitions for
review of an order of the National Labor Relations Board
holding the Company had violated §§ 8(a)(1) and (3) of the
National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and
requiring the Company to reinstate striking workers who had
unconditionally offered to return to work. We conclude that
the Board was without jurisdiction to consider the alleged
unfair labor practice it found was a cause of the strike, and
hence its order of reinstatement must be set aside.
I. Background
This case arises out of a campaign by a coalition of unions,
under the auspices of the Building Trades Organizing Project
(hereinafter the Union), to organize the employees of Preci-
sion Concrete, a family-owned construction company based in
Nevada. The Union began its drive in January 1997. Later
that year it filed against the Company unfair labor practice
charges that resulted in a settlement. The organizing drive
continued. In early 1998, the Union filed a fresh set of
charges alleging, among other things, that the Company had
discriminated against certain employees for their cooperation
with the Union in the settled case. In one such charge, filed
March 20, 1998, the Union alleged:
3
On or about February 13, 1998, [Precision] interro-
gated employees, threatened employees with unspec-
ified reprisals, and invited employees to resign their
employment because they engaged in protected, con-
certed activities.
In July 1998, approximately 100 workers (a little more than
half the Company’s workforce) went on strike. The strike
was not successful; many workers crossed the picket lines —
leading to some ugly scenes that prompted a state court to
issue an injunction against the Union — and the Company
hired some replacement workers. By October, most of the
strikers had offered to return to work, but the Company
refused to take them back.
The Union filed a series of unfair labor practice charges
relating to the strike. In a charge filed September 17, 1998,
the Union alleged:
On or about August 25, 1998, [Precision] threatened
employees with termination and physical violence
because of their union activities.
After investigating these and other charges, the General
Counsel of the Board filed a consolidated amended complaint
alleging the Company had committed a variety of unfair labor
practices before, during, and after the strike. The complaint
included the following allegations relevant here:
On or about July 10, 1998, [Precision], by Juan
Pulido, threatened to discharge employee, Valentin
Mendez, because he wore a Union tee-shirtTTTT On
or about July 10, 1998, [Precision], by Juan Pulido,
told employee, Valentin Mendez, that he was being
transferred because he wore a Union tee-shirt.
An Administrative Law Judge held, among other things,
the Company had violated § 8(a)(1) of the Act on July 10,
1998 when its foreman, Juan Pulido, told Valentin Mendez he
was being transferred to another assignment because Mendez
was wearing a Union T-shirt, and Pulido ‘‘didn’t want any of
his team members wearing that kind of shirt.’’ Precision
Concrete, 337 N.L.R.B. No. 33, 2001 NLRB LEXIS 1060, *59
4
(Dec. 20, 2001) (Order). The ALJ further concluded the T-
shirt incident was a cause of the strike and therefore all
striking employees, upon their unconditional offer to return to
work, were entitled to reinstatement with the Company. Id.
at *78; see Gibson Greetings, Inc. v. NLRB, 53 F.3d 385, 389
(D.C. Cir. 1995) (‘‘an unfair labor practice striker who uncon-
ditionally offers to return to work is entitled to reinstate-
ment’’). The ALJ ordered the Company to cease and desist
from violating the Act and to reinstate roughly 70 workers.
In exceptions before the Board, the Company argued the
ALJ’s reinstatement order could not stand because the T-
shirt incident was not the subject of a timely charge and
therefore, under § 10(b) of the Act, 29 U.S.C. § 160(b), the
Board was precluded from holding it an unfair labor practice.
The Board rejected that argument. Although it acknowl-
edged that the T-shirt incident was not the subject of any
unfair labor practice charge filed by the Union, the Board
held that the incident was sufficiently related to the allega-
tions in the March 20 and September 17 charges quoted
above to satisfy § 10(b). Order at *7–*8. The Company now
petitions for review, and the Board cross-petitions for en-
forcement of its order.
II. Analysis
Section 10(b) of the National Labor Relations Act provides:
Whenever it is charged that any person has engaged
in TTT [an] unfair labor practice, the Board TTT shall
have power to issue TTT a complaint stating the
charges in that respect TTT: 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 BoardTTTT
29 U.S.C. § 160(b) (emphasis in original).
This section of the Act performs ‘‘two separate functions.’’
Ross Stores, Inc. v. NLRB, 235 F.3d 669, 677 (D.C. Cir. 2001)
(Randolph, J., concurring). First, it ‘‘sets down a condition
for the Board’s exercise of jurisdiction,’’ namely, that the
5
Board, which here acts through the General Counsel, may
investigate and prosecute conduct only in response to the
filing of a ‘‘charge,’’ that is, a formal allegation made (by a
union, an employer, or an employee) against a union or an
employer. Id. Second, § 10(b) ‘‘functions much like a stat-
ute of limitations,’’ restricting the proper subject of any
complaint issued by the General Counsel to conduct about
which a charge was filed within six months of its occurrence.
Id.
As Judge Randolph noted in Ross Stores, failure to distin-
guish between those two functions can cause confusion, as it
has done, alas, in the present case. Throughout this litiga-
tion, the parties and the Board have framed the § 10(b) issue
as one of timeliness, when what is really at issue is the
limitation upon the Board’s ability to prosecute uncharged
conduct.
The Company initially objected to inclusion of the T-shirt
incident in the amended complaint on the ground that the
incident occurred more than six months prior to the filing of
the amendment. Order at *3. (The T-shirt incident occurred
in July 1998; the General Counsel filed the amended com-
plaint in March 1999.) The Board framed the issue as
whether the ‘‘otherwise untimely’’ allegation was ‘‘closely
related to a timely filed unfair labor practice charge.’’ Id.
Section 10(b) does not, however, restrict the General Coun-
sel to litigating conduct that occurred within six months of his
filing a complaint. Indeed, as far as § 10(b) is concerned, the
General Counsel may prosecute conduct about which a timely
charge was filed whenever the General Counsel gets around
to it. See NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d
Cir. 1952) (‘‘A complaint, as distinguished from a charge, need
not be filed and served within the six months, and may
therefore be amended after the six months’’). All the statute
requires with respect to timing is that the complaint be based
upon an unfair labor practice charge filed within six months
of the allegedly unlawful conduct.
The problem in the present case is that the T-shirt incident
was never the subject of any charge. That omission impli-
6
cates the jurisdictional component of § 10(b): The Board
(again, acting through the General Counsel) may not initiate a
charge on its own; it may prosecute only conduct about which
someone else has filed a charge. See G.W. Galloway Co. v.
NLRB, 856 F.2d 275, 279 (D.C. Cir. 1988) (‘‘By precluding the
Board from initiating complaints without a corresponding
charge from an outside party, Congress apparently intended
to limit the Board’s activities to those matters shown to be of
concern to the very people the Act was designed to protect’’).
Whether one views the inquiry in terms of timeliness or of
jurisdiction, however, the ultimate issue, at least in the pres-
ent case, is the same: Is the T-shirt incident factually related
to conduct (timely) charged by the Union? Compare Gallo-
way, 856 F.2d at 280 (‘‘when the Board ventures outside the
strict confines of the charge, it must limit itself to matters
sharing a significant factual affiliation with the activity al-
leged in the charge’’), with Ross Stores, 235 F.3d at 672 (‘‘The
NLRB has long construed section 10(b), with judicial approv-
al, to permit prosecution of an alleged violation that was not
timely charged if it is ‘closely related’ to the allegations in a
timely filed charge’’). Nevertheless, the distinction between
the jurisdictional and temporal components of § 10(b) is not
of merely academic interest because it affects the burden of
proof upon the issue of relatedness. The Board considered
the Company’s timeliness claim as an ‘‘affirmative defense
that the [Company] failed to prove.’’ Order at *3. Without
passing upon the validity of that characterization, we note
that it is incumbent upon the Board to establish its authority
to act, at least once its jurisdiction has been put in issue.
See, e.g., Lotus Suites, Inc. v. NLRB, 32 F.3d 588, 592 (D.C.
Cir. 1994) (‘‘Because the Board has failed to (nor could it)
establish a sufficient factual connection between the general
terms of the charge and the specific allegations of the com-
plaint, the Board’s order must be set aside’’); Drug Plastics
& Glass Co., Inc. v. NLRB, 44 F.3d 1017, 1022 (D.C. Cir.
1995) (‘‘Where the Board is unable to connect the allegations
in its complaint with the charge allegation, we are unable to
find that the Board has jurisdiction over the unrelated com-
plaint allegations’’). Because the issue before the Board in
7
this case was its jurisdiction, the Board erred by placing the
burden of proof upon the Company.
Properly understood, the question for our resolution is
whether the Board has established that it had jurisdiction to
adjudicate the lawfulness of the T-shirt incident. Section
10(b) is not a straightjacket; the Board may, where appropri-
ate, ‘‘include allegations in the complaint that are not specifi-
cally asserted in the charge.’’ Galloway, 856 F.2d at 280.
The Board does not, however, have ‘‘carte blanche to expand
the charge as [it may] please, or to ignore it altogether.’’ Id.
(quoting NLRB v. Fant Milling Co., 360 U.S. 301, 309 (1959)).
A factual nexus between the charge and the complaint is
required.
In Fant Milling the Supreme Court set the standard of
relatedness as follows: the Board may prosecute unfair labor
practices which, although not specifically alleged in a charge,
are ‘‘related to those alleged in the charge and TTT grow out
of them while the proceeding is pending before the Board.’’
360 U.S. at 309. We subsequently restated the standard —
perhaps somewhat more loosely by omitting the requirement
that the unfair labor practice ‘‘grow out of’’ the conduct
charged — as requiring a ‘‘significant factual affiliation’’
between the charged conduct and the allegations in the
complaint. Galloway, 856 F.2d at 280.
The Board has further refined the inquiry. In Nickles
Bakery of Indiana, Inc., 296 N.L.R.B. 927, 928 (1989), it
adopted a ‘‘uniform requirement in all TTT cases that a
complaint allegation be factually related to the allegation in
the underlying charge.’’ In order to determine whether the
allegations of the complaint are factually related to those in
the charge, the Board asks: (1) ‘‘whether the TTT allegations
involve the same legal theory as the allegations in the TTT
charge’’; (2) ‘‘whether the TTT allegations arise from the same
factual circumstances or sequence of events as the TTT
charge’’; and (3) ‘‘whether a respondent would raise similar
defenses to both allegations.’’ Id.
In Drug Plastics, 30 F.3d at 172–73, we upheld the Board’s
test pursuant to Chevron U.S.A., Inc. v. Natural Resources
8
Defense Council, 467 U.S. 837 (1984), as a permissible inter-
pretation of § 10(b). We have on several occasions, however,
disagreed with the Board’s application of the test — in Drug
Plastics itself, as well as in Ross Stores, Lotus Suites, and
Galloway. Two such cases are of particular significance here.
In Lotus Suites we held that the Board may not ‘‘issue a
complaint based upon a charge containing only a boilerplate
§ 8(a)(1) allegation TTT unbounded by specific facts’’ because,
with the charge ‘‘so lacking in content’’ it becomes ‘‘[im]possi-
ble sensibly to apply the test of ‘substantial relation’ between
the factual allegations in the charge and those in the com-
plaint.’’ 32 F.3d at 592. Then in Ross Stores we rejected the
argument that the second component of the Board’s test is
satisfied as long as both the allegations at issue arise out of
the same union organizing campaign. 235 F.3d at 674 (‘‘The
coincidence of the two separate violations during the same
organizing campaign does not of itself create a close factual
relationship’’).
In the present case, the amended complaint alleged that in
July 1998 a Precision foreman threatened to discharge or
transfer an employee for wearing a Union T-shirt. The
portions of the March 20 and September 17 charges upon
which the Board relied to show this uncharged conduct was
closely related to charged conduct stated that, on specific
dates in February and August 1998, the Company had
‘‘threatened employees with unspecified reprisals, and invited
employees to resign their employment’’ and ‘‘threatened em-
ployees with termination and physical violence because of
their union activities.’’ Order at *6. The Board thought it
sufficient that the allegations all ‘‘involve types of threatening
conduct by the Respondent’s unnamed officers and agents
occurring within a common sequence of events in a half-year
time span,’’ all arise under the same section of the Act, and all
implicate the same defenses. Id. at *7.
The Board’s conclusion cannot possibly be squared with our
previous decisions concerning the requirements of § 10(b).
Although the charges at issue are not mere boilerplate,
neither do they contain enough detail about the charged
conduct to enable us ‘‘sensibly to apply the test of ‘substantial
9
relation.’ ’’ Lotus Suites, 32 F.3d at 592. All we can glean
from the record is that the March 20 charge involved interro-
gations and threats of reprisals by a foreman named Emilio
Pinal at the Sunset and Valley View jobsite, and the Septem-
ber 17 charge concerned an incident on August 25 — more
than a month after the T-shirt incident — in which Precision’s
president accosted strikers picketing ‘‘outside the gated con-
fines of his [residential] neighborhood.’’ Other than to ob-
serve that both of the charged incidents ‘‘involve types of
threatening conduct,’’ the Board has made no attempt to
demonstrate that the T-shirt incident shares a ‘‘significant
factual affiliation’’ with, Galloway, 856 F.2d at 280, let alone
‘‘grow[s] out of,’’ Fant Milling, 360 U.S. at 309, the charged
conduct.
The only link we can see is that the alleged incidents all
occurred during the course of the Union’s organizing drive in
1998. We have previously established, however, that a mere
‘‘coincidence of the two separate violations during the same
organizing campaign’’ is not enough. Ross Stores, 235 F.3d
at 674. Although the Board claimed to find more, Order at *5
(purporting to adhere to the ‘‘second factual factor as inter-
preted by the D.C. Circuit’’), in the end it pointed only to the
incidents having occurred ‘‘within a common sequence of
events in a half-year time span,’’ which adds nothing to the
facts held insufficient in Ross Stores.
Because the Board failed to establish the requisite factual
relationship between the charged conduct and the allegation
in the complaint regarding the T-shirt incident, it did not
have jurisdiction to adjudicate that incident. And the T-shirt
incident was the sole violation upon which the Board relied in
finding the Union struck in part because of an unfair labor
practice. Therefore, the strike could not be characterized as
an unfair labor practice strike and the strikers had no greater
right to reinstatement than economic strikers. The Board’s
order of reinstatement must be set aside.
III. Conclusion
For the foregoing reasons, we vacate the order of the
Board insofar as it found the T-shirt incident an unfair labor
10
practice and required the Company to reinstate the striking
workers. We grant the Board’s cross-application for enforce-
ment of the order with respect to the unfair labor practices
not challenged in the Company’s petition for review.
So ordered.