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 UNILATERAL CHANGE, IN VIOLATION OF 16(A)(1)
AND (5), HAD OCCURRED ON JULY 22, 1979, AS TO THE NATIONAL BORDER PATROL
COUNCIL. C.F., DEFENSE LOGISTICS AGENCY, CASE NOS. 3-CA-294, 338 (ALJ,
APRIL 2, 1980, N. 19).