605 F.

2d 139
102 L.R.R.M. (BNA) 2265, 87 Lab.Cas. P 11,552

ROCK HILL TELEPHONE COMPANY, Petitioner,

v.
The NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 78-1152.

United States Court of Appeals,

Fourth Circuit.
Argued Feb. 6, 1979.
Decided Sept. 12, 1979.

B. H. Boswell, Charlotte, N. C. (Blakeney, Alexander & Machen,

Charlotte, N. C., on brief), for petitioner.
Susan S. McDonald, Atty., N. L. R. B., Washington, D. C. (John S.
Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L.
Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen.
Counsel, Marjorie S. Gofreed, Atty., N. L. R. B., Washington, D. C., on
brief), for respondent.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER,
Circuit Judges.
WIDENER, Circuit Judge:

Pursuant to 10(f) of the National Labor Relations Act (Act), 29 U.S.C.

160(f), Rock Hill Telephone Company has petitioned this court to review and
set aside an order of the National Labor Relations Board. The Board has crossapplied for enforcement of its order. The Board found that the company had
violated 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. 158(a)(1) & 158(a)(3),
based upon its interrogation of employees; solicitation to engage in surveillance
of union activity; threat to discharge troublemakers; and discharge of one
employee. We grant enforcement of the Board's order.

Rock Hill Telephone Company (the Company) is engaged in the business of

providing residential and business telephone service to the Rock Hill, South
Carolina area. In late 1975 or early 1976, Local 3716, Communications
Workers of America, AFL-CIO (the Union), initiated a campaign to organize
the Company's plant department employees. On April 26, 1976, the Union filed
a petition with the Board seeking certification as the bargaining representative
for the Company's plant department employees.
3

On May 13, 1976, a hearing was conducted on the Union's petition. The sole
issue in contention at the hearing was the employment status of Frank Peay, for
the Company and the Union were otherwise in agreement as to the unit of
employees appropriate for the election. The Company contended that Peay was
a supervisor within the meaning of 2(11) of the Act, 29 U.S.C. 152(11), and
therefore should be excluded from the voting unit. The Union contended that
Peay's status was one of employee rather than supervisor and therefore he
should be included in the voting unit.

On June 2, 1976, the Regional Director issued a Decision and Direction of

Election in which he concluded that the Company's plant department employees
constituted an appropriate unit and that Frank Peay was a supervisor and
therefore should be excluded from the unit. The Union did not file objections to
the Regional Director's decision. Pursuant to the June 2 directive, an election
was held on June 30, 1976, with the following results: seventeen votes were
cast for the Union and fifty-seven votes were cast against the Union.

On July 2, the Union filed timely objections to conduct it alleged affected the
results of the election. The Union's objections were essentially as follows: the
Company, through its supervisors, made threats of reprisals and promises of
benefits to its employees for the purpose of discouraging union affiliation; held
a captive audience meeting with its employees in which it made an anti-union
speech; and took action that impaired the status of or adversely affected the job
or pay of an employee because of that employee's activities on behalf of the
Union. On July 30, the Union withdrew all of its election objections save one
dealing with the Company's mailing of letters that allegedly contained threats of
reprisals and promises of benefits to its employees. This objection was
overruled by the Regional Director, who, on August 6, certified that the Union
was not the exclusive bargaining representative for the Company's plant
department employees.

On August 23, 1976, Frank Peay was discharged by the Company. Soon
thereafter, on September 7, the Union filed a charge with the Board against the
Company, alleging that the Company had engaged in an unfair labor practice
within the meaning of 8(a)(1) and (3) of the Act by firing Peay because of

his union activity. The Union also alleged that by other unspecified acts the
Company had interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in 7 of the Act.
7

On November 15, 1976, the Regional Director issued a complaint alleging that
the Company had violated 8(a)(1) and (3) of the Act by discharging Peay
for his union activity and by subjecting Peay to interrogation, through its
supervisors, concerning his union activity. At the start of the unfair labor
practice hearing on the above charges, on February 14, 1977, the General
Counsel moved to amend the complaint to include allegations of additional
8(a)(1) violations revolving around the interrogation and threatening of two of
the Company's employees, Clyde Polk and C. Edgar Howell. The Company
objected to the amendments as not being within the six month limitation period
set forth in 10(b) of the Act, 29 U.S.C. 160(b). Despite the Company's
objections, the administrative law judge (ALJ) granted the General Counsel's
motion to amend the complaint. Consequently, all of the issues raised in the
complaint, as amended, were fully litigated at the hearing.

* The Board concluded that the Company had violated 8(a)(1) of the Act,
through the actions of its supervisors toward employees Polk, Howell, and
Peay.

To a large extent, the 8(a)(1) violations were premised upon credibility

resolutions made by the ALJ and by his findings as to the weight of the
evidence. We sustain them as to employees Howell and Peay, they being
supported by substantial evidence. As to the employee Polk, the ALJ found
(adopted by the Board) that a supervisor had requested Polk to furnish him with
a list of employees who would vote for or against the union. This finding is not
supported by substantial evidence, although there was evidence that a
supervisor did ask Polk how he thought his department would go in the
election, or some such language, which the ALJ did not find, as the Board did
not. Were the case to turn on the finding as to Polk, we would have to decline to
enforce the Board's order. But only a small part of the cease and desist order,
see part 1(b) App. p. 27, and para. 5 of the notice, p. 29, could depend on the
finding as to Polk, and even that is not clear from its language for it might
depend on interrogation of Howell by Armstrong. Because the grounds upon
which an administrative order must be judged are those upon which the record
discloses that its action was based, S. E. C. v. Chenery Corp., 318 U.S. 80, 87,
63 S.Ct. 454, 87 L.Ed. 626 (1943), the Board will modify its cease and desist
order to indicate clearly it is not based on the interrogation of Polk by
Workman.

10

We also think the finding of the ALJ and the Board that Peay was an employee
as contrasted to a supervisor at the time he was fired, and the reasons found for
his firing, are supported by substantial evidence. So, with the exception noted,
we affirm the factual underpinning of both the 8(a)(1) and 8(a)(3) violations.

II
11

The Company's primary objection to the Board's determination that it violated

8(a)(1) is that a large part of the alleged conduct took place before the six
month limitation period contained in 10(b) and therefore the alleged conduct
was not properly before the Board. It was partially on this basis that the
Company opposed the General Counsel's motion to amend the complaint to
include these allegations. We believe the objection is without merit.

12

The Union's charge and the original complaint, which admittedly come within
the six month limitation period set forth in 10(b), alleged that the Company
violated 8(a)(1) and (3) of the Act by discriminating against Frank Peay
because of his involvement in an organizing campaign conducted by the Union
among the Company's plant department employees. The amended 8(a)(1)
allegations also revolve around the organizing campaign conducted by the
Union. It is established that if additional allegations are closely related or
sufficiently related to allegations contained in the charge or original complaint,
10(b) will not be violated by allowing the complaint to be amended to include
additional allegations even though the amendment takes place after the
limitation period set forth in 10(b). E. g., NLRB v. Jack La Lanne
Management Corp., 539 F.2d 292, 294-95 (2d Cir. 1976). Since all of the
allegations in this case concern the Company's response to the Union's
organizing effort, we think there was sufficient relation between the charge and
the original complaint and the additional 8(a)(1) allegations to permit the
amendment of the complaint to include the additional allegations without
violating 10(b). We also note the Company declined a continuance for it to
prepare a defense and tried the case on the merits, so there is little room to
argue actual prejudice occurred.

13

Along a similar line, the Company contends that it was error to permit the
amendment of the complaint to include the additional 8(a)(1) allegations
since all but one of the allegations concerned pre-election conduct. The
Company asserts that since the Union filed and then withdrew objections to the
election based on alleged pre-election misconduct on the part of the Company,
the Union waived its right to assert that such conduct violated the Act. We find
no merit in the Company's contention.

14

The fact that the Union withdrew its election objections should not preclude it
from later filing an unfair labor practice charge based on similar or the same
conduct that formed the basis of the withdrawn election objections. See NLRB
v. T. W. Phillips Gas & Oil Co., 141 F.2d 304, 305 (3d Cir. 1944). We are of
opinion that, although a withdrawal of objections to an election might foreclose
the moving party from having the election results set aside, and although the
fact of the withdrawal of the objections to an election may be considered as an
item of evidence in the unfair labor practice proceeding, it does not necessarily
preclude that same party from bringing an unfair labor practice charge based on
the same objectionable conduct and receiving other relief. The statute provides
for relief from unfair labor practices which should not necessarily be
extinguished by withdrawal of objections to an intervening election.

III
15

The Board permitted the relitigation of Peay's employment status with the
Company. As previously noted, as a result of the representation hearing held on
May 13, 1976, the Regional Director determined that Peay was a supervisor. In
order for the Company to have violated 8(a)(1) and (3) because of its
conduct toward Peay, it was necessary for Peay's employment status to be
relitigated and for it to be determined that he was an employee rather than a
supervisor at the time of the alleged misconduct since 8 of the Act applies to
"employees" and not "supervisors." See NLRB v. Southern Seating Co., 468
F.2d 1345, 1346 (4th Cir. 1972).

16

The facts surrounding the issue of Peay's employment status follow. Beginning
in 1968, Peay was employed by the Company as an installer-repairman. On
May 10, 1976, Peay was transferred to the Company's test board and remained
in that position until his discharge on August 23, 1976. As a result of the
representation hearing conducted on May 13, 1976, the Regional Director
concluded that based upon Peay's duties as an installer-repairman, he was a
supervisor. No mention, in the Regional Director's finding, was made of the
fact that Peay had been transferred to the test board on May 10, the Regional
Director apparently not being aware of that occurrence. Upon the relitigation of
Peay's employment status, the Board agreed with the Regional Director that
Peay was a supervisor while he was employed as an installer-repairman.
However, the Board concluded that based upon Peay's duties on the test board,
from May 10, the date he was transferred to the test board, until August 23, the
date of his discharge, Peay was an employee as contrasted to a supervisor and
thus covered by 8 of the Act. Consequently, the Board found that the
Company had violated 8(a)(1) by interrogating Peay in August as to union
matters, as well as 8(a)(3) by firing him for union activity.

17

The Company contends that the matter of Peay's employment status was Res
judicata and, in light of Board regulation 29 C.F.R. 102.67(f), the Board erred
in relitigating Peay's employment status. We disagree.

18

Board regulation 29 C.F.R. 102.67(f) sets out the penalty for failing to request
or obtain review of a representation proceeding.1 It provides:

19

"The parties may, at any time, waive their right to request review. Failure to
request review shall preclude such parties from relitigating, in any related
subsequent unfair labor practice proceeding, any issue which was, or could
have been, raised in the representation proceeding. Denial of a request for
review shall constitute an affirmance of the regional director's action which
shall also preclude relitigating any such issues in any related subsequent unfair
labor practice proceeding.

20

The circuit courts that have considered the issue are of opinion that 102.67(f)
does not prevent the relitigation in a subsequent 8(a)(1) or 8(a) (3) unfair
labor practice proceeding of issues that were or could have been raised in a
representation proceeding. Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879
(5th Cir. 1967); Amalgamated Clothing Workers of America v. NLRB, 124
U.S.App.D.C. 365, 365 F.2d 898 (D.C.Cir. 1966). See Riverside Press, Inc. v.
NLRB, 415 F.2d 281, 284 (5th Cir. 1969), Cert. den., 397 U.S. 912, 90 S.Ct.
915, 25 L.Ed.2d 94. See generally e. g., NLRB v. W. S. Hatch Co., 474 F.2d
558, 563 n. 4 (9th Cir. 1973); NLRB v. Union Brothers, Inc., 403 F.2d 883, 887
n. 8 (4th Cir. 1968). The phrase "any related subsequent unfair labor practice
proceeding" contained in 102.67(f) has been interpreted to relate only to
8(a)(5) refusal to bargain cases. See Heights Funeral Home and Amalgamated
Clothing Workers, supra. And, although the Board, as it acknowledges, has not
always been consistent in its interpretation and application of 102.67(f), it has
recently adopted the position set forth in Heights Funeral Home and
Amalgamated Clothing Workers that 102.67(f) does not necessarily bar the
relitigation of issues in subsequent unfair labor practice proceedings other than
8(a)(5) proceedings. See Serv-U-Stores, Inc., 234 NLRB No. 191; 1978 CCH
NLRB P 19,054. We agree with this interpretation of 102.67(f).
Consequently, it was permissible for the Board to relitigate the employment
status of Peay.

21

Considering the Company's other objections to enforcement to be without

merit, and that the position of the Board is in general well founded, we will
enforce its order as modified.

22

ENFORCEMENT GRANTED AS MODIFIED.

22
1

ENFORCEMENT GRANTED AS MODIFIED.

As previously noted, the Union did not file objections to the Regional
Director's decision that Peay was a supervisor