Knickerbocker Manufacturing Co., Inc., 1195 (1962)

KNICKERBOCKER MANUFACTURING COMPANY, INC. 1195 maintenance men, paving block rammers, reenforcing steel placers, sewer pipe laborers, sheeters, shorers, signalmen, structural concrete surfacers, waterboys, watchmen, welders, wagon drill operators, tunnel and shaft workmen, caisson and tunnelmen (under pressure 0.18 pounds), drill runners, miners and drillers (including lining supporting and form workmen), muckers, and other laborers ; and Unit (d) : Operators of power-driven equipment, including (but not limited to) crane operators, derrick operators, compressor operators, bulldozer operator, and cement mixers and oilers, but excluding truckdrivers and all other employees.

[Text of Amended Direction of Elections omitted from publication.] CHAIRMAN FARMER and MEMBER MURDOCK took no part in the consideration of the above Amended Decision and Direction of Elections.

KNICKERBOCKER MANUFACTURING COMPANY, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO . Case No. 15-CA-143. September9,1954 Decision and Order On July 28, 1953, Trial Examiner Robert L. Piper issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist thereform and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support of the exceptions.

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's and General Counsel's exceptions and briefs, and the entire record in this case,l and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner so far as they are not inconsistent with the following additions and modifications.

We disagree with the Trial Examiner to the extent that he found that Hodnett, Mitchell, Elliott, and O'Brian were refused employment because of their union activities. These employees were discharged on July 31, 1951, and more than 6 months thereafter, on February 8, 1952, the Union filed and served its original charge alleg1 There is an inadvertent error in the fourth paragraph of section III, A, of the Intermediate Report. It reads that 'On July 31, 1951' Estes announced to the production lines the increase in production quotas. The correct date is July 30, 1951. This inadvertence has no effect on the Trial Examiner's conclusions.

100 NLRB No. 169.

ing, inter alia,2 that they were discharged for protected activity and thereafter discriminatorily refused reinstatement. After the lapse of about 8 more months, the Union on October 21, 1952, served an amended charge wherein it abandoned the original allegation and in place thereof charged that the Respondent violated the Act by refusing to employ these 4 persons on succeeding dates within the 6-month period preceding the original charge because of their union activities.

Because Section 10 (b) of the Act bars unfair labor practice findings based on events accruing more than 6 months prior to the filing of the charge, it is now undisputed that the alleged original violation concerning the discharge together with refusal to reinstate Hodnett,

Mitchell, Elliott, and O'Brian was barred by Section 10 (b) of the Act .3 It appears that after the Union learned this, it amended its charge to allege that these 4 persons asked for new employment rather than reinstatement to old jobs, and that because of union activity in which they engaged after the discharges of July 31 and within the 6-month period preceding the filing of the original charge, they were refused new employment following their oral requests for employment. These oral requests ranged from about 10 days to 6 weeks after the discharges. Because these requests for a 'job' followed so soon upon the heels of the discharges and were so closely related to the turmoil resulting from those discharges, we cannot view them as applications for new employment but more in the nature of requests for reconsideration of the antecedent discharges 4 This conclusion is supported by the fact that the Union itself, in the original charge, designated these same requests as requests for reinstatement. We believe that these requests can have but a single meaning which may not be changed to conform to favorable law. Under these circumstances, we find that the oral requests of Hodnett, Mitchell, Elliott, and O'Brian were requests for reinstatement to the jobs they held immediately preceding their discharges of July 31; accordingly, any rights based thereon are barred by Section 10 (b) of the Act.' There remains for consideration the written requests by these four persons in March 1952 'for any job available.' Regardless of the language here used, in light of the foregoing circumstances, we cannot disassociate the March requests from the earlier oral requests. We view them as a mere continuation of the oral requests and accordingly similarly barred by Section 10 (b) of the Act.

Assuming, however, that the March requests were for employment generally, we would find that they were barred by Section 10 (b) of 6 This charge contained other allegations of independent violations of Section 8 (a) (1) of the Act and one Section 8 (a) (3) violation 6 N. L. R. B. v. Pennwoven, Inc., 194 F 2d 521 (C. A. 3) ; N. L. R. B. v. Childs Company and Chain Service Restaurant Employees Union, Local 4 2, 195 F. 2d 617 (C. A. 2).

' Standard Brands, Incorporated, 97 NLRB 737.

5 N. L. R. B. v. Pennwoven, Inc.; N. L. R. B. v. Childs Company, footnote 3, supra.

KNICKERBOCKER MANUFACTURING COMPANY, INC. 1197 the Act. We think it is clear that the amended charge raised a new and separate cause of action which must independently satisfy the limitations of Section 10 (b). This view differs materially with the prior holdings of this Board in its Cathey and subsequent decisions e that the filing of an original charge tolls the running of the 10 (b) limitations so as to permit adjudication of any and all subsequent unfair labor practices. Such a broad interpretation of Section 10 (b) has never, save for one possible exception,? been adopted by the courts and is indeed contrary to the weight of judicial precedent. The Fifth Circuit Court of Appeals, which enforced the Cathey case in a per curiam opinion,' made it clear in the recent Newton Brothers Lumber eases that it did not subscribe to the Board's broad Cathey doctrine.

In holding, contrary to the Board, that a discrimination allegation, involving a charge chronology like the one in the instant case, was barred by Section 10 (b), the court stated : 'This event was subsequent to the filing and serving of the first charge and more than six months prior to the filing and serving of the amended charge whereas in the Cathey Lumber case all discriminatory actions occurred prior to the filing of the charge initiating the case.'' In Indiana Metal Products case,11 the Seventh Circuit Court of Appeals similarly held that unfair labor practices occurring after the filing of the original charge and more than 6 months before the filing of an amended charge were barred by Section 10 (b) of the Act:

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 the extent inconsistent herewith, the Board's prior interpretation of Section 10 (b) as enunciated in Cathey and subsequent cases is hereby expressly overruled.

In view of the foregoing, we shall dismiss that part of the complaint which alleges that the Respondent violated Section 8 (a) (3) .of the Act by refusing to employ Hodnett, Mitchell, Elliott, and O'Brian.

0 Cathey Lumber Company, 86 NLRB 157 ; Ferro Stamping and Manufacturing Co., 93

NLRB 1459.

TN. L R. B. v. Harry Epstein, at at., d/b/a (Top Mode Mfg. Co., 203 F. 2d 482 (C. A. 3).

8185 F. 26 1021.

N. L. R. B. v. D. W. Newton, d/b/a Newton Brothers Lumber Co., 214 F. 2d 472.

10 See also N. L. R. B. v. I. B. S. Manufacturing Co., et al., 210 F. 2d 634 (C. A. 5), where a similar holding was made.

11 Indiana Metal Products Corp. v. N. L. It. B., 202 F. 2d 613.

12 Compare, N. L. R. B. v. Talladega Cotton Factory Inc., 213 F. 2d 208 (C. A. 5) ;

Kansas Milling Co. v. N. L. It. B., 185 F. 2d 413, 415 (C. A. 10) ; N. L. R. B. v. Ozark Data Constructors and Flippen Materials Co. (Brown and Root), 203 F. 2d 139, 146 (C. A. 8) ;

N. L. R. B. v. Gaynor News Company, Inc., 197 F. 2d 719 (C. A. 2).

Order Upon the entire record in the case and pursuant to Section 10 (c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Knickerbocker Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall:

1. Cease and desist from :

   (

   1. Discouraging membership in the Union, or any other labor organization of its employees, by refusing to hire applicants for employment or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment.

   (b) Interrogating employees concerning their membership in, or activities on behalf of, Amalgamated Clothing Workers of America,

   CIO, or any other labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act, engaging in surveillance of its employees' union activities, requiring new employees to agree not to join the Union, causing the circulation of petitions among its employees designed to determine their union sympathies, and directing nonunion employees to attend meetings in its offices, or in any other manner...