NLRB lacked jurisdiction to order reinstatement of strikers

By G. Phillip Shuler

A panel of the District of Columbia Circuit Court of Appeals recently held that the National Labor Relations Board improperly ordered an employer to reinstate striking construction workers. Precision Concrete v. NLRB (D.C. Cir., No.02-1164, July 11).

The court held that the board lacked jurisdiction to order reinstatement because the Board erroneously ruled that the strike was caused by an unfair labor practice of the company.

In December 2001, the board ruled that a strike by the employees of Precision Concrete was caused by a foreman who threatened to discharge and actually transferred a worker because he was wearing a union T-shirt. The employee was wearing the T-shirt as a result of an organizing campaign led by a coalition of unions under the banner, Building Trades Organizing Project.

The court held that the Board lacked jurisdiction to decide whether this T-shirt incident was a violation of the National Labor Relations Act (NLRA) because none of the unfair labor practice charges filed by the union specifically included the incident.

Moreover, the court found that the T-shirt incident was not substantially related to other incidents that were referenced in the union's charges. However, the Board only cited the T-shirt incident in ruling that the strike was caused in part by an unfair labor practice, which in turn gave the strikers reinstatement rights.

The NLRB's 2001 decision grew out of the unions' attempt to organize Precision's workers, which began in January 1997. The unions filed an unfair labor practice charge later that year, and it was eventually settled.

The unions then filed new charges against Precision in early 1998. The unions alleged that Precision discriminated against certain workers who cooperated with the unions regarding the settled charge; interrogated workers about their union views; and threatened employees because they engaged in union activities.

In a charge filed on March 20, 1998, the unions alleged that Precision interrogated employees, threatened employees with unspecified reprisals, and invited employees to resign because they were involved in protected, concerted activities.

In July 1998, nearly 100 of Precision's employee's went out on strike, but it was an unsuccessful effort. Precision hired replacement workers and many of Precision's employees crossed the picket lines. Also, most of the strikers made unconditional offers to return to work by October of that year. Nonetheless, Precision refused to reinstate them.

As a result of the strike, the unions filed numerous unfair labor practice charges in which they complained about Precision's conduct during the strike. The unions filed one such charge on September 17, 1998, in which they alleged that on August 25, 1998, Precision threatened employees with termination and physical violence because of their union activities. The Board then investigated the March 1998 and September 1998 charges, as well others filed by the unions.

Thereafter, the General Counsel issued a consolidated amended complaint in March 1999 in which he alleged Precision had committed a variety of unfair labor practices before, during, and after the strike. The amended complaint contained a specific allegation that a Precision foreman threatened to fire and actually transferred a worker in July 1998 because he was wearing a union T-shirt. Allegedly, the foreman told the worker that he "didn't want any members of [his] team wearing that kind of shirt."

At the hearing, a Board administrative law judge held that the alleged T-shirt incident constituted a Section 8(a)(1) violation and was a cause of the strike. The administrative law judge also ordered Precision to reinstate nearly seventy strikers. Precision appealed the decision to the full Board and argued that the alleged T-shirt incident was not the subject of a timely filed charge.

The Board acknowledged that the T-shirt incident was not the subject of a timely filed charge, but it nonetheless concluded that the incident was sufficiently related to the allegations of the March 1998 and September 1998 charges and was properly added to the complaint by the General Counsel.

In reviewing the Board's decision, the D.C. Circuit noted that Section 10(b) of the NLRA has two functions. First, Section 10(b) has a jurisdictional component that places conditions on the Board's authority to litigate cases. Specifically, the Board only has authority to issue a complaint based on allegations made in a timely charge. Second, Section 10(b) has a temporal component that functions like a statute of limitations. Section 10(b) restricts the proper subject of any complaint issued by the General Counsel to conduct that occurred within six months of the date the charge was filed.

Throughout the litigation of the case, Precision had focused on the temporal component of Section 10(b). Precision initially argued that the T-shirt incident should not have been included in the amended complaint because it occurred six months prior to the filing of the amendment. The D.C. Circuit rejected this argument and stated that the six-month limitation in Section 10(b) does not restrict the General Counsel to only litigating conduct that occurred within six months of the date the complaint was filed.

Instead, the temporal component of Section 10(b) merely requires the complaint to be based on allegedly unlawful conduct that occurred within six months of the date the charge was filed.

The more critical issue in this case, however, was whether the Board had implicated the jurisdictional component of Section 10(b) because the T-shirt incident was never the subject of any unfair labor practice charge filed against Precision. Again, the Board does not have the authority initiate a charge on its own and can only prosecute conduct about which someone else has filed a charge. More importantly, the Board has the burden to establish its authority to act once its jurisdiction becomes an issue in a case.

Under the jurisdictional component of Section 10(b), the general counsel may prosecute practices not specifically alluded to in a charge if they are factually related to conduct alleged in the charge and grow out of them while the proceeding is pending before the Board. In 1989, the NLRB adopted a uniform requirement that a complaint allegation be factually related to the allegation in the underlying charge.

Under this requirement, the Board considers whether the allegations in the complaint and in the charge 1) involve the same legal theory; 2) arise from the same factual circumstances or sequence of events; and 3) whether the charged party would raise similar defenses to both allegations.

However, the D.C. Circuit has since modified application of this requirement. First, the NLRB may not issue a complaint based on a charge that only includes boilerplate allegations that lack specific facts because it would be impossible to sensibly apply the test of substantial relation. This test is applied to determine whether there is a significant factual affiliation between the charged conduct and the allegations in the complaint. Also, the second component of the Board's test-whether the conduct arises from same factual circumstances or sequence of events-is not satisfied simply because allegations in the charge and complaint arise out of the same organizing campaign.

As previously described, the Board's complaint alleged that in July 1998 a Precision foreman threatened to discharge or transfer an employee for wearing a union T-shirt. The Board argued that this uncharged conduct was related to certain portions of both the March 1998 and September 1998 charges. Specifically, the Board alleged that the T-shirt incident was closely related to the allegations that Precision had threatened employees with unspecified reprisals and threatened employees with termination and physical violence for their union activities.

The Board also set forth in its amended complaint that all the allegations involved threatening conduct that occurred within a common sequence of events in a six-month time span. The Board also stated the allegations all arose under the same section of the NLRA and implicated the same defenses.

An application of requirements of the jurisdictional component of Section 10(b) revealed that the charges did not contain enough detail about charged conduct to allow the court to sensibly apply the substantial relation test to determine if the uncharged conduct-the T-shirt-was factually related to the conduct in the March 1998 and September 1998 charges.

All that could be gleaned from the record was that the March charge involved interrogations and threats of reprisal, while the September charge concerned an incident in August where Precision's president accosted strikers who were picketing near his the gated confines of his neighborhood. Though neither of the charges were mere boilerplate, they lacked the necessary specificity for the D.C. Circuit to reasonably ascertain whether the allegations relating to the uncharged T-shirt incident was factually related to the charged conduct.

Also, the Board made no attempt to demonstrate that the T-shirt incident either shared a significant factual affiliation with or grew out of the charged conduct. The only possible link that between the T-shirt incident and the charged conduct was that it all occurred during the course of the unions' organizing campaign. However, the mere coincidence that two separate violations occur during the same campaign is not enough to establish that they are substantially related. The Board's argument that all the incidents occurred within a common sequence of events during a half-year time span was insufficient to establish the necessary factual connection between the charged conduct and the allegations in the Board's amended complaint.

Accordingly, the Board failed to establish the requisite factual relationship between the charged conduct and the allegation in the amended complaint regarding the T-shirt incident. The Board therefore lacked jurisdiction under Section 10(b) to adjudicate the incident. More importantly, this uncharged conduct was the sole violation upon which the Board relied in finding that the union struck because of an unfair labor practice.

The strike therefore could not be characterized as an unfair labor practice strike and the strikers had no greater right to reinstatement than economic strikers. Consequently, the Board's order that the T-shirt incident was an unfair labor practice and order of reinstatement of the strikers was vacated.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.