Immigration and Naturalization Service, Washington, DC (Respondent) and American Federation of Government Employees, AFL-CIO (Charging Party) 



[ v04 p787 ]
04:0787(102)CA
The decision of the Authority follows:


 4 FLRA No. 102
 
 IMMIGRATION AND NATURALIZATION
 SERVICE, WASHINGTON, D.C.
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-366
 
                            DECISION AND ORDER
 
    IN ACCORDANCE WITH SECTION 2423.19(K) OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.19(K)), THE ADMINISTRATIVE
 LAW JUDGE ISSUED A DECISION AND ORDER ON RESPONDENT'S MOTION TO DISMISS
 COMPLAINT ON JUNE 17, 1980, FINDING THAT THE COMPLAINT IN THE
 ABOVE-ENTITLED PROCEEDING WAS BASED ON ALLEGED UNFAIR LABOR PRACTICES
 WHICH OCCURRED MORE THAN SIX MONTHS BEFORE THE FILING OF THE CHARGE WITH
 THE AUTHORITY, AND THUS DISMISSED THE COMPLAINT.  THE GENERAL COUNSEL OF
 THE FLRA AND THE CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
 DECISION AND ORDER.
 
    UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION AND
 ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE EXCEPTIONS FILED
 BY THE GENERAL COUNSEL AND THE CHARGING PARTY, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  IN ACCORDANCE WITH SECTION 2429.5 OF THE RULES AND
 REGULATIONS (5 CFR 2429.5), THE AUTHORITY HAS NOT CONSIDERED THE NEW
 EVIDENCE OFFERED BY THE GENERAL COUNSEL IN ITS EXCEPTIONS, AS SUCH
 EVIDENCE WAS NOT PRESENTED IN THE PROCEEDINGS BEFORE THE ADMINISTRATIVE
 LAW JUDGE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN FLRA CASE NO. 3-CA-366 BE,
 AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER, III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    HEATHER BRIGGS GOTTS, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    JAMES A. KENNEDY, ESQUIRE
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
             DECISION AND ORDER ON MOTION TO DISMISS COMPLAINT
 
                               INTRODUCTION
 
    THE COMPLAINT AND NOTICE OF HEARING ISSUED ON APRIL 16, 1980.
 RESPONDENT, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND
 NATURALIZATION SERVICE, TRANSMITTED, BY REGISTERED MAIL, ON MAY 12,
 1980, ITS ANSWER TO COMPLAINT AND ITS MOTION FOR DISMISSAL.  BY ORDER
 DATED MAY 15, 1980, THE ACTING REGIONAL DIRECTOR OF REGION III,
 JACQUELYN J. SKELTON, ESQUIRE, PURSUANT TO SEC. 2423.22(B) OF THE
 REGULATIONS, REFERRED RESPONDENT'S MOTION TO DISMISS TO THE CHIEF
 ADMINISTRATIVE LAW JUDGE WHO, IN TURN, REFERRED TO MOTION TO THE
 UNDERSIGNED TO WHOM THIS MATTER HAD PREVIOUSLY BEEN ASSIGNED.  GENERAL
 COUNSEL'S OPPOSITION TO RESPONDENT'S MOTION TO DISMISS, DATED MAY 15,
 1980, WAS RECEIVED BY THIS OFFICE ON MAY 21, 1980.  TWO EXHIBITS ARE
 ATTACHED TO RESPONDENT'S MOTION TO DISMISS AS FOLLOWS:  EXHIBIT 1,
 CONSISTING OF:  A) THE REGIONAL DIRECTOR'S LETTER OF TRANSMITTAL OF THE
 CHARGE HEREIN, DATED AUGUST 2, 1979;  B) THE CHARGE DATED JULY 19, 1979,
 AND FILED JULY 25, 1979;  AND C) BASIS OF THE CHARGE, ATTACHED TO THE
 CHARGE, AND "MOTION FOR STAY OF EMPLOYER'S IMPLEMENTATION," WHICH
 APPEARED ON THE SAME PAGE AS "BASIS OF THE CHARGE," AND WHICH WAS, ALSO
 ATTACHED TO THE CHARGE.  EXHIBIT 2, CONSISTING OF:  A) CHARGING PARTY'S
 LETTER DATED FEBRUARY 25, 1980, TO MS. HEATHER GOTTS, COUNSEL FOR THE
 GENERAL COUNSEL, TRANSMITTING AN AMENDED CHARGE (DENOMINATED
 "COMPLAINT");  B) A CHARGE DATED FEBRUARY 24, 1980, NOT DESIGNATED AS AN
 AMENDED CHARGE BUT, PURSUANT TO THE LETTER OF TRANSMITTAL, OBVIOUSLY
 INTENDED AS AN AMENDED CHARGE (DATE OF FILING NOT SHOWN;  HOWEVER,
 PARAGRAPH 1(B) OF THE COMPLAINT STATES THAT THE AMENDED CHARGE WAS FILED
 ON FEBRUARY 27, 1980).  COUNSEL FOR GENERAL COUNSEL HAS NOT OBJECTED TO
 OR CHALLENGED THE AUTHENTICITY OF EITHER EXHIBIT.  INDEED, EXHIBIT 1
 CONSISTS IN ITS ENTIRETY OF MATERIAL TRANSMITTED BY THE REGIONAL
 DIRECTOR TO RESPONDENT, NAMELY THE LETTER OF TRANSMITTAL, THE CHARGE IN
 CASE NO. 3-CA-366 AND THE ATTACHED PAGE ENTITLED "3.  BASIS OF THE
 CHARGE", /1/ ON WHICH "MOTION FOR STAY OF THE EMPLOYER'S IMPLEMENTATION"
 ALSO APPEARS, AND CONSTITUTES PART OF THE FORMAL DOCUMENTS.  EXHIBIT 2
 CONSISTS OF THE CHARGING PARTY'S LETTER OF FEBRUARY 25, 1980, TO COUNSEL
 FOR THE GENERAL COUNSEL TRANSMITTING THE ATTACHED AMENDED CHARGE
 (DENOMINATED "AMENDED COMPLAINT" IN THE LETTER OF TRANSMITTAL) AND THE
 AMENDED CHARGE DATED FEBRUARY 25, 1980, AND SIGNED BY MR. JAMES P.
 JONES, SUPERVISORY LABOR RELATIONS SPECIALIST FOR AMER'CAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, THE CHARGING PARTY.  THE PROFFERED
 AMENDED CHARGE, ALTHOUGH "DATE FILED" IS NOT SHOWN, BY THE ABSENCE OF
 OBJECTION IS CONCEDED TO BE A COPY OF THE AMENDED CHARGE FILED ON
 FEBRUARY 27, 1980, AND IT, TOGETHER WITH THE LETTER OF TRANSMITTAL,
 WHICH STATES THE PURPOSE OF THE AMENDMENT, ALSO CONSTITUTE PART OF THE
 FORMAL DOCUMENTS.  ACCORDINGLY, EXHIBIT 1 AND 2 TO RESPONDENT'S MOTION
 ARE RECEIVED AS EXHIBITS IN THIS MATTER.
 
    THE REGIONAL DIRECTOR AND GENERAL COUNSEL ARE BOUND BY THE CHARGE
 AND, AT LEAST WHERE ACCEPTED, ANY AMENDED CHARGE INCLUDING THE STATED
 PURPOSE OF THE CHARGING PARTY IN AMENDING ITS CHARGE.
 
                             MOTION TO DISMISS
 
    RESPONDENT'S MOTION TO DISMISS IS BASED SQUARELY ON THE PREMISE THAT,
 
    "THE COMPLAINT SHOULD BE DISMISSED BECAUSE IT RESTS UPON A CHARGE
 WHICH WAS FILED MORE THAN
 
    6 MONTHS AFTER THE ALLEGED UNFAIR LABOR PRACTICE IN THIS CASE
 (IMPLEMENTATION OF A UNIFORMED
 
    OFFICER GROOMING STANDARD ON JULY 22, 1919) IN VIOLATION OF 5 U.S.C.
 7118(A)4." (MOTION FOR
 
    DISMISSAL OF COMPLAINT, P. 1).
 
    SECTION 18(A)(4) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    "(4)(A) EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) OF THIS PARAGRAPH, NO
 COMPLAINT SHALL BE
 
    ISSUED BASED ON ANY ALLEGED UNFAIR LABOR PRACTICES WHICH OCCURRED
 MORE THAN 6 MONTHS BEFORE
 
    THE FILING OF THE CHARGE WITH THE AUTHORITY.
 
                     . . ." (5 U.S.C. 7118(A)(4)(A)).
 
 THERE IS NO DISPUTE THAT THE ORIGINAL CHARGE WAS TIMELY AS IT WAS FILED
 ON JULY 25, 1979, AND ALLEGED THAT "NEW GROOMING STANDARDS WILL BE
 IMPLEMENTED SUNDAY, JULY 22, 1979 AS A UNILATERAL ACT." (EXHIBIT 1 TO
 MOTION, "3.  BASIS OF THE CHARGE").  HOWEVER, THE AMENDED CHARGE WAS NOT
 FILED UNTIL FEBRUARY 27, 1980, AND IF, AS RESPONDENT ASSERTS, THE
 AMENDED CHARGE CONSTITUTED A NEW UNFAIR LABOR PRACTICE CHARGE AS TO A
 UNILATERAL CHANGE ON JULY 22, 1979, IT IS BARRED BY SEC. 18(A)(4)(A) OF
 THE STATUTE.
 
    SEC. 2423.4(A) OF THE REGULATIONS /2/ PROVIDES, IN PART, AS FOLLOWS:
 
    "(A) A CHARGE . . . SHALL CONTAIN THE FOLLOWING:
 
    (2) THE NAME . . . OF THE ACTIVITY, AGENCY, OR LABOR ORGANIZATION
 AGAINST WHOM THE CHARGE
 
    IS MADE;
 
    (3) A CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE
 ALLEGED UNFAIR LABOR
 
    PRACTICE . . . AND THE DATE AND PLACE OF OCCURRENCE OF THE PARTICULAR
 ACTS;  AND
 
    (4) A STATEMENT OF ANY OTHER PROCEDURE INVOKED, INVOLVING THE SUBJECT
 MATTER OF THE CHARGE
 
    AND THE RESULTS, IF ANY, INCLUDING WHETHER THE SUBJECT MATTER RAISED
 IN THE CHARGE . . . (III)
 
    INVOLVES A NEGOTIABILITY ISSUE RAISED BY THE CHARGING PARTY . .  .
 PURSUANT TO PART 2424 OF
 
    THIS SUBCHAPTER.
 
                       . . ." (5 C.F.R. 2423.4(A)).
 
    IF A CHARGE WERE FILED ON JANUARY 15 WHICH ALLEGED, BY WAY OF
 EXAMPLE, THAT THE DEPARTMENT OF THE AIR FORCE VIOLATED THE STATUTE BY
 CERTAIN CONDUCT ON JANUARY 4 IN AN EXCLUSIVE BARGAINING UNIT AT
 VANDENBERG AIR FORCE BASE, CALIFORNIA;  ON AUGUST 4, OF THE SAME YEAR,
 THE CHARGING PARTY FILED AN AMENDED CHARGE:  A) WITHDRAWING THE
 ALLEGATION CONCERNING VANDENBERG;  AND B) ALLEGING THE SAME CONDUCT ON
 JANUARY 4 IN A SEPARATE EXCLUSIVE BARGAINING UNIT AT MCCLELLAN AIR FORCE
 BASE, CALIFORNIA, IT WOULD BE BEYOND DISPUTE, IN MY OPINION, THAT THE
 AMENDED CHARGE CONSTITUTED A DIFFERENT ALLEGATION OF UNFAIR LABOR
 PRACTICE THAN ALLEGED IN THE ORIGINAL CHARGE OF JANUARY 15, AND THAT NO
 COMPLAINT COULD ISSUE WITH RESPECT THEREIN BECAUSE THE ALLEGED UNFAIR
 LABOR PRACTICE OCCURRED MORE THAN 6 MONTHS BEFORE THE FILING OF THE
 CHARGE WHICH, FOR THE FIRST TIME, ALLEGED THIS DIFFERENT AND, THEREFORE,
 NEW UNFAIR LABOR PRACTICE AT MCCLELLAN AIR FORCE BASE.  RESPONDENT
 ASSERTS THAT THIS IS PRECISELY WHAT THE CHARGING PARTY HAS DONE HERE AND
 THAT THE REGIONAL DIRECTOR HAS ISSUED A COMPLAINT, BASED WHOLLY ON THE
 AMENDED CHARGE, AS TO AN ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED
 MORE THAN 6 MONTHS BEFORE THE FILING OF THE AMENDED CHARGE WHICH, FOR
 THE FIRST TIME, ALLEGED THIS DIFFERENT AND NEW UNFAIR LABOR PRACTICE AS
 TO THE NATIONAL BORDER PATROL COUNCIL.  FOR REASONS SET FORTH
 HEREINAFTER, I AGREE.
 
    THE ONLY DIFFERENCE IN THE INSTANT CASE FROM THE HYPOTHETICAL EXAMPLE
 IS THAT IN THE HYPOTHETICAL EXAMPLE ONE EXCLUSIVE BARGAINING UNIT WAS
 LOCATED AT ONE AIR FORCE BASE AND THE OTHER AT ANOTHER AIR FORCE BASE,
 WHEREAS, HERE, THE TWO EXCLUSIVE BARGAINING UNITS ARE SEPARATE NATIONAL
 UNITS WITHIN THE IMMIGRATION AND NATURALIZATION SERVICE.  THERE IS NO
 DISPUTE THAT THERE ARE TWO SEPARATE AND DISTINCT UNITS OF EXCLUSIVE
 RECOGNITION WITHIN THE IMMIGRATION AND NATURALIZATION SERVICE;  THAT ONE
 UNIT, OF ABOUT 5,225 EMPLOYEES, IS REPRESENTED BY THE NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AFGE, WHICH, AS
 RESPONDENT STATES, HAS A CONTRACT EFFECTIVE FROM JUNE 13, 1979, AND
 WHICH WILL EXPIRE ON JUNE 13, 1982;  THAT THE SECOND UNIT, OF ABOUT
 1,874 EMPLOYEES, WAS REPRESENTED BY THE NATIONAL BORDER PATROL COUNCIL,
 AFGE, /3/ WHICH HAD A CONTRACT THAT EXPIRED BY ITS TERMS, SEPTEMBER 30,
 1978, BUT, AS STATED IN THE COMPLAINT, WAS, BY VERBAL AGREEMENT OF THE
 PARTIES, EXTENDED TO JANUARY 28, 1979.
 
    THE ORIGINAL CHARGE, WITH SCANT ATTENTION TO THE REQUIREMENTS OF SEC.
 2423.4 OF THE REGULATIONS, OBSCURED THE FACTS;  BUT EXAMINATION OF THE
 ENTIRE CHARGE, INCLUDING THE BASIS OF THE CHARGE, MAKES IT CLEAR THAT
 THE CHARGE FILED JULY 25, 1979, ALLEGED UNFAIR LABOR PRACTICES SOLELY AS
 TO THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, ALTHOUGH
 THE WORD "COUNCIL" IS NOT SHOWN IN PAR. 1A.  THIS IS SHOWN, INTER ALIA,
 BY:  I) NUMBER OF EMPLOYEES, "APPROX. 5,000" (PAR. 1E);  II) "THE
 EMPLOYER REFUSED TO NEGOTIATE ON THE GROOMING STANDARDS FOR EMPLOYEES IN
 THE BARGAINING UNIT." (BASIS OF THE CHARGE);  III) " . . . THE
 UNILATERAL IMPLEMENTATION CONSTITUTES A BREACH OF THE EXISTING
 COLLECTIVE BARGAINING AGREEMENT . . . " (BASIS OF THE CHARGE);  IV) "THE
 MATTER OF THESE GROOMING STANDARDS WERE INCLUDED IN THE UNION'S
 SUBMISSION IN FLRA CASE NO. 0-3NG-52 AND HAS NOT BEEN DECIDED." /4/
 (BASIS OF THE CHARGE) INDEED, THE CHARGING PARTY'S LETTER OF FEBRUARY
 25, 1980, TO COUNSEL FOR THE GENERAL COUNSEL, STATES, IN PART, "THE
 PURPOSE OF THIS AMENDMENT IS TO WITHDRAW OUR CHARGES THAT ALLEGE THAT
 THE EMPLOYER VIOLATED THE STATUTE BY REFUSING TO BARGAIN ON THE GROOMING
 STANDARDS WITH THE NATIONAL IMMIGRATION AND NATURALIZATION COUNCIL . . .
 "
 
    BY COMPARISON, THE AMENDED CHARGE, FILED FEBRUARY 27, 1980, IN PAR.
 1A STATES:  "U.S. IMMIGRATION AND NATURALIZATION SERVICE, U.S. BORDER
 PATROL;" IN PAR., 1E "2400." THIS IS THE FIRST REFERENCE TO THE BORDER
 PATROL AND THE FIRST ALLEGATION OF ANY UNFAIR LABOR PRACTICE AS TO THE
 UNIT REPRESENTED BY THE NATIONAL BORDER PATROL COUNCIL.  PARAGRAPH 3 OF
 THE AMENDED CHARGE STATES SIMPLY THAT "THE EMPLOYER UNILATERALLY
 IMPLEMENTED GROOMING STANDARDS PRIOR TO FULFILLING ITS OBLIGATION TO
 BARGAIN;" BUT FROM THE COMPLAINT, PARAGRAPH 10, IT IS ASSERTED THAT THE
 DATE OF THE UNILATERAL IMPLEMENTATION WAS JULY 22, 1979.  ALL REFERENCES
 IN THE COMPLAINT TO THE UNION ARE TO AFGE, NATIONAL BORDER PATROL
 COUNCIL . . .
 
    OBVIOUSLY, THE CHARGING PARTY COULD HAVE ALLEGED AN UNFAIR LABOR
 PRACTICE IN JULY, 1979, AS TO BOTH UNITS OF EXCLUSIVE RECOGNITION, I.E.,
 THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND THE
 NATIONAL BORDER PATROL COUNCIL;  HOWEVER, IT DID NOT.  HAVING ALLEGED
 UNFAIR LABOR PRACTICES ONLY AS TO THE UNIT REPRESENTED BY ITS NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, WHICH, AS NOTED IN
 FOOTNOTE 3, SUPRA, MAY HAVE BEEN, OR MAY HAVE BEEN ASSUMED BY THE
 CHARGING PARTY TO HAVE BEEN, ITS ONLY UNIT OF EXCLUSIVE RECOGNITION WHEN
 THE CHARGE WAS FILED ON JULY 25, 1979, THE ALLEGATIONS SET FORTH IN ITS
 AMENDED CHARGE, FILED FEBRUARY 27, 1980, FOR THE FIRST TIME ASSERTED A
 REFUSAL TO BARGAIN WITH THE NATIONAL BORDER PATROL COUNCIL.  THE
 STATEMENT OF THE CHARGING PARTY IN ITS LETTER OF FEBRUARY 25, 1980, THAT
 "THIS WILL LEAVE STANDING OUR ALLEGATIONS RELATING TO . . . THE NATIONAL
 BORDER PATROL COUNCIL" CAN NOT BOOTSTRAP COVERAGE OF THE ORIGINAL CHARGE
 TO INCLUDE THE NATIONAL BORDER PATROL COUNCIL WHEN THE CHARGE SIMPLY DID
 NOT EXTEND TO THE NATIONAL BORDER PATROL COUNCIL.
 
    THE REFERENCED PAR. 1A OF THE JULY 25, 1919, CHARGE TO "IMMIGRATION
 AND NATURALIZATION SERVICE" AS ACTIVITY AND/OR AGENCY IS, OF COURSE,
 BROAD ENOUGH TO INCLUDE BOTH UNITS OF EXCLUSIVE RECOGNITION;  BUT THE
 BASIS OF THE CHARGE SPECIFICALLY DELINEATES THE ALLEGED UNILATERAL
 IMPLEMENTATION ALLEGED TO THE CHARGING PARTY'S SUBMISSION IN FLRA CASE
 NO. 0-NG-52 WHICH CONCERNED "AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
 COUNCIL AND U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
 SERVICE" (1 FLRA NO. 56).  EVERY REFERENCE IN THE CHARGE, FROM THE
 NUMBER OF EMPLOYEES TO THE REPEATED AND CONSISTENT REFERENCE TO "THE
 BARGAINING UNIT," POINTS TO THE FACT THAT THAT THE UNFAIR LABOR
 PRACTICES ALLEGED CONCERNED SOLELY THE NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE COUNCIL UNIT OF RECOGNITION.
 
    FOR THE FIRST TIME, REFERENCE TO THE NATIONAL BORDER PATROL APPEARS
 IN THE FEBRUARY 27, 1980, CHARGE WHEN THE AGENCY AND/OR ACTIVITY (PAR.
 1A) WAS CHANGED FROM "IMMIGRATION AND NATURALIZATION SERVICE" TO "U.S.
 IMMIGRATION AND NATURALIZATION, U.S. BORDER PATROL." INDEED, THE
 FEBRUARY 27, 1980, CHARGE THEREBY NAMED A NEW AND DIFFERENT ACTIVITY
 AGAINST WHICH A CHARGE WAS MADE.  THE JULY 25, 1979, CHARGE IN PAR. 1C
 LISTED "DENNIS EKBERG" AS THE PERSON TO CONTACT;  THE FEBRUARY 27, 1980,
 CHARGE IN PAR. 1C LISTS "JAMES A. KENNEDY;" AND THE COMPLAINT,
 PARAGRAPHS 7, 8 AND 9, REFERS TO CORRESPONDENCE TO OR FROM JAMES A.
 KENNEDY.
 
    BECAUSE THE CHARGE FILED JULY 25, 1979, SHOWS THAT THE UNFAIR LABOR
 PRACTICE ALLEGED RELATED SOLELY TO THE NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE COUNCIL, A SEPARATE AND DISTINCT UNIT OF
 EXCLUSIVE RECOGNITION, AND NEITHER ALLEGED UNFAIR LABOR PRACTICES AS TO
 THE U.S. BORDER PATROL COUNCIL, A DIFFERENT AND WHOLLY SEPARATE AND
 DISTINCT UNIT OF EXCLUSIVE RECOGNITION, NOR NAMED THE U.S. BORDER PATROL
 AS AN ACTIVITY AGAINST WHICH THE CHARGE WAS MADE, THE AMENDED CHARGE,
 FILED FEBRUARY 27, 1980, WITHDREW THE ALLEGATION OF THE JULY 25, 1979,
 CHARGE AGAINST THE NATIONAL IMMIGRATION AND NATURALIZATION SERVICE
 COUNCIL AND, FOR THE FIRST TIME, ALLEGED UNFAIR LABOR PRACTICES WITH
 REGARD TO THE U.S. BORDER PATROL COUNCIL UNIT OF EXCLUSIVE RECOGNITION
 AND NAMED A NEW AND DIFFERENT ACTIVITY AGAINST WHICH THE CHARGE WAS
 MADE, TO WIT:  U.S. BORDER PATROL, WHICH CONSTITUTED A WHOLLY DIFFERENT
 ALLEGATION OF UNFAIR LABOR PRACTICES THAN ENCOMPASSED BY THE ORIGINAL
 CHARGE OF JULY 25, 1979, AND, INASMUCH AS IT ALLEGED, FOR THE FIRST
 TIME, UNFAIR LABOR PRACTICES IN A SEPARATE AND DISTINCT UNIT OF
 RECOGNITION, THE U.S. BORDER PATROL COUNCIL, AND AGAINST A DIFFERENT
 ACTIVITY, U.S. BORDER PATROL, IT MAY NOT, AND DOES NOT, FOR THE PURPOSE
 OF SEC. 18(A)(4)(A) OF THE STATUTE, RELATE BACK TO THE DATE THE ORIGINAL
 CHARGE WAS FILED WITH THE AUTHORITY.  /5/ SECTION 10(B) OF THE NATIONAL
 LABOR RELATIONS ACT, 29 U.S.C. 160(B), WHICH IS IDENTICAL IN SUBSTANCE
 TO SEC. 18 (A)(4)(A) OF THE STATUTE, PROVIDES IN PERTINENT PART,
 
    "THAT NO COMPLAINT SHALL ISSUE BASED UPON ANY UNFAIR LABOR PRACTICE
 OCCURRING MORE THAN SIX
 
    MONTHS PRIOR TO THE FILING OF THE CHARGE WITE THE BOARD . . . " IN
 KNICKERBOCKER MANUFACTURING COMPANY, INC., 109 NLRB 1195, 34 LRRM 1551
 (1954), FOUR EMPLOYEES WERE DISCHARGED ON JULY 31, 1951, AND ON FEBRUARY
 8, 1952, MORE THAN 6 MONTHS THEREAFTER, THE UNION FILED AND SERVED ITS
 ORIGINAL CHARGE ALLEGING, INTER ALIA, THAT THEY WERE DISCHARGED FOR
 PROTESTED ACTIVITY AND THEREAFTER DISCRIMINATIVELY REFUSED
 REINSTATEMENT.  ON OCTOBER 21, 1952, AN AMENDED CHARGE WAS FILED WHEREIN
 THE ORIGINAL ALLEGATION WAS ABANDONED AND, IN PLACE THEREOF, IT WAS
 CHARGED THAT EMPLOYER VIOLATED THE ACT BY REFUSING TO EMPLOY THESE 4
 EMPLOYEES ON DATES WITHIN THE 6 MONTH PERIOD PRECEEDING THE ORIGINAL
 CHARGE BECAUSE OF THEIR UNION ACTIVITY.  IN DISMISSING THIS PORTION OF
 THE COMPLAINT, THE BOARD, MEMBERS PETERSON AND MURDOCK DISSENTING,
 STATED, IN PART, AS FOLLOWS:
 
    " . . . WE THINK IT CLEAR THAT THE AMENDED CHARGE RAISED A NEW AND
 SEPARATE CAUSE OF ACTION
 
    WHICH MUST INDEPENDENTLY SATISFY THE LIMITATION OF SECTION 10(B) . .
 .
 
    "AS THE INSTANT REQUESTS FOR EMPLOYMENT IN MARCH OCCURRED AFTER THE
 FILING OF THE ORIGINAL
 
    CHARGE AND MORE THAN 6 MONTHS BEFORE THE AMENDED CHARGE WHICH FIRST
 ALLEGED THEM TO BE UNFAIR
 
    LABOR PRACTICES WE HOLD THAT UNDER SECTION 10(B) NO UNFAIR LABOR
 PRACTICE CAN BE FOUND.  TO LIKE EFFECT, SEE, ALSO, FOOD, DRUG AND
 BEVERAGE WAREHOUSEMEN & CLERICAL EMPLOYEES, LOCAL 595, INTERNATIONAL
 BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
 AMERICA,
 218 NLRB 1286, 84 LRRM 1558 (1973).  WHILE NO EFFORT HAS BEEN MADE TO
 CATALOGUE OR ANALYZE THE NUMEROUS BOARD AND COURT DECISIONS UNDER
 SECTION 10(B) OF THE NLRA, IT IS CLEAR THAT, WHILE A CHARGE IS NOT A
 PLEADING, NLRB V. BRADLEY WASHFOUNTAIN CO., 192 F2D/144, 149, 29 LRRM
 2064 (7TH CIR. 1951) AND COURTS HAVE FREQUENTLY SUSTAINED ALLEGATIONS IN
 BOARD COMPLAINTS WHICH WERE CONSIDERABLY BROADER IN SCOPE THAN THE
 LANGUAGE CONTAINED IN THE CHARGE;  NEVERTHELESS, "THE BOARD IS BARRED
 UNDER SEC. 10(B) OF THE ACT FROM ENLARGING OR ADDING TO THE LANGUAGE OF
 THE CHARGE SO AS TO INCLUDE UNFAIR LABOR PRACTICES COMMITTED MORE THAN
 SIX MONTHS PRIOR TO THE FILING AND SERVICE OF THE CHARGE." INDIANA METAL
 PRODUCTS CORP. V. NLRB, 202 F.2D 613, 619, 31 LRRM 2490, 2495 (7TH CIR.
 1953).
 
    HERE, THE FEBRUARY 27, 1980, CHARGE ALLEGED UNFAIR LABOR PRACTICES
 COMMITTED MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE CHARGE WITH
 THE AUTHORITY.  THE FEBRUARY 27, 1980 CHARGE RAISED A NEW AND SEPARATE
 CAUSE OF ACTION WHICH MUST INDEPENDENTLY SATISFY THE LIMITATION OF
 SECTION 18(A)(4)(A) OF THE STATUTE AND AS THE UNFAIR LABOR PRACTICES
 OCCURRED ON JULY 22, 1979, THE ALLEGED UNILATERAL CHANGE AS TO THE
 NATIONAL BORDER PATROL COUNCIL OCCURRED MORE THAN SIX MONTHS PRIOR TO
 THE FILING OF THE AMENDED CHARGE ON FEBRUARY 27, 1980.  MOREOVER, THE
 FEBRUARY 27, 1980 CHARGE ALLEGED UNFAIR LABOR PRACTICES ON JULY 22,
 1979, BY A SEPARATE AND DISTINCT UNIT OF EXCLUSIVE RECOGNITION, THAN THE
 ACTIVITY AGAINST WHICH THE ORIGINAL CHARGE OF JULY 25, 1979, HAD BEEN
 DIRECTED, AND SUCH ALLEGATION OF UNFAIR LABOR PRACTICES AGAINST THE U.S.
 BORDER PATROL IS BARRED BY SECTION 18(A)(4)(A) OF THE STATUTE BECAUSE
 SUCH ALLEGED UNFAIR LABOR PRACTICES OCCURRED MORE THAN SIX MONTHS PRIOR
 TO THE FILING OF THE CHARGE WITH THE AUTHORITY.
 
    ACCORDINGLY, AS THE COMPLAINT ISSUED HEREIN WAS BASED ON ALLEGED
 UNFAIR LABOR PRACTICES WHICH OCCURRED MORE THAN 6 MONTHS BEFORE THE
 FILING OF THE CHARGE WITH THE AUTHORITY, RESPONDENT'S MOTION TO DISMISS
 IS HEREBY GRANTED.
 
                                   ORDER
 
    THE COMPLAINT HEREIN IS BASED ON A CHARGE FILED WITH THE AUTHORITY ON
 FEBRUARY 27, 1980, WHICH ALLEGED UNFAIR LABOR PRACTICES ON JULY 22,
 1979, MORE THAN 6 MONTHS BEFORE THE FILING OF THE CHARGE WITE THE
 AUTHORITY.  PURSUANT TO SEC. 18(A)(4)(A) OF TEE STATUTE, 5 U.S.C.
 7118(A)(4)(A), THE ORDER OF REFERENCE OF THE ACTING REGIONAL DIRECTOR,
 AND SECS. 2423.19(K) AND 2423.22(B)(3) OF THE REGULATIONS, THE COMPLAINT
 BE, AND THE SAME IS HEREBY, DISMISSED.
 
                          WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 17, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE STATEMENT OF COUNSEL FOR GENERAL COUNSEL IN HER OPPOSITION
 THAT,
 
    " . . . RESPONDENT RELIES, IN PART, ON STATEMENTS MADE IN
 TRANSMITTALS DIRECTLY FROM AFGE
 
    TO RESPONDENT CONCERNING ITS INTERPRETATION OF THE CHARGE AND OF A
 NEGOTIABILITY APPEAL
 
    PENDING BEFORE THE AUTHORITY." (OPPOSITION, P. 2) IS INCOMPREHENSIBLE
 TO ME AS THE STATEMENT REFERRED TO APPEARS IN "3.  BASIS OF THE CHARGE"
 WHICH WAS ATTACHED TO AND INCORPORATED AS PART OF THE CHARGE AND WAS
 TRANSMITTED TO RESPONDENT BY THE REGIONAL DIRECTOR WITH HIS LETTER OF
 AUGUST 2, 1979.
 
    /2/ FINAL RULES AND REGULATIONS, FED. REG., VOL. 45, NO. 12, JANUARY
 17, 1980, EFFECTIVE JANUARY 28, 1980.  SEC. 2423.4 OF THE INTERIM RULES,
 FED. REG., VOL. 44, NO.  147, JULY 30, 1979, WERE IDENTICAL IN
 SUBSTANCE.  (FOR THE COMPARABLE REGULATIONS UNDER THE EXECUTIVE ORDER,
 SEE 29 C.F.R. 203.3).
 
    /3/ ALTHOUGH NOT ASSERTED BY RESPONDENT IN SUPPORT OF ITS PRESENT
 MOTION TO DISMISS, I AM AWARE THAT RESPONDENT'S ANSWER TO PARAGRAPH 6 OF
 THE COMPLAINT, WHICH ASSERTED THAT, "AT ALL TIMES MATERIAL . . .
 RESPONDENT HAS RECOGNIZED THE UNION (AFGE) AS THE EXCLUSIVE
 REPRESENTATIVE FOR ALL . . . BORDER PATROL PERSONNEL . . . , " STATES,
 IN PART, AS FOLLOWS:
 
    "A.  THE NATIONAL BORDER PATROL COUNCIL LOST AN ELECTION ON JUNE 1,
 1979, TO DETERMINE
 
    WHETHER THE NATIONAL LABOR PATROL COUNCIL WOULD BE REPLACED BY THE
 INTERNATIONAL BROTHERHOOD
 
    OF POLICE OFFICERS AS EXCLUSIVE REPRESENTATIVE OF BARGAINING UNIT
 EMPLOYEES." (ANSWER,
 
    PAR. 6A).  IF, AS THIS SUGGESTS, THE CHARGING PARTY WAS NOT THE
 EXCLUSIVE REPRESENTATIVE FOR THIS UNIT AFTER JUNE 1, 1979, NO BASIS FOR
 A 16(A) (5) VIOLATION AS TO THE CHARGING PARTY WITH RESPECT TO THIS UNIT
 (WHICH IS ITS SOLE ALLEGATION OF THE COMPLAINT) WOULD EXIST.
 
    COUNSEL FOR THE GENERAL COUNSEL HAS NOT ADDRESSED THIS MATTER.
 
    /4/ IN FACT, THE APPEAL HAD BEEN DISMISSED ON JUNE 14, 1979.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, CASE NO. 0-NG-52, 1 FLRA
 NO. 56 (1979).
 
    /5/ NO OPINION IS EXPRESSED AS TO THE EFFECT OF MERELY ADDING AN
 ADDITIONAL ALLEGATION SINCE, HERE, TEE ORIGINAL ALLEGATION OF UNILATERAL
 CHANGE, AND VIOLATION, INTER ALIA, OF 16(A)(1) AND (5), AS TO THE
 NATIONAL IMMIGRATION AND NATIONALIZATION COUNCIL UNIT WAS WITHDRAWN BY
 THE AMENDED CHARGE OF FEBRUARY 27, 1980, AND A NEW AND DIFFERENT
 ALLEGATION WAS MADE THAT A