Ross Stores, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2000 Decided January 12, 2001

No. 99-1453

Ross Stores, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Joseph G. Ferguson argued the cause for the petitioner.

James P. Valentine and Elizabeth C. Leo were on brief.

Jill A. Griffin, Attorney, National Labor Relations Board,

argued the cause for the respondent. Leonard R. Page,

General Counsel, Linda Sher, Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel, and

David Habenstreit, Attorney, National Labor Relations

Board, were on brief.

James B. Coppess and Jonathan P. Hiatt were on brief for

amicus curiae American Federation of Labor and Congress

of Industrial Organizations

Before: Henderson, Randolph and Garland, Circuit

Judges.

Opinion for the court by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Randolph.

Opinion concurring in part and dissenting in part filed by

Circuit Judge Garland.

Karen LeCraft Henderson, Circuit Judge: Ross Stores,

Inc. (Ross) petitions for review of a decision and order of the

National Labor Relations Board (Board, NLRB) finding that

Ross violated section 8(a)(1) and (3) of the National Labor

Relations Act (Act) when (1) it discharged an employee on

account of his union support and (2) its supervisor informed

the same employee that no soliciting was allowed on company

premises. We uphold the Board's finding as to the discharge

because it is supported by substantial evidence and set aside

its finding regarding the solicitation admonition because it is

time-barred under section 10(b) of the Act, 29 U.S.C.

s 160(b), which requires that an unfair labor practice allega-

tion be made within 6 months of its occurrence.

I.

In May 1993 a group of employees at Ross's non-union

distribution center in Carlisle, Pennsylvania began organizing

efforts on behalf of the International Ladies Garment Work-

ers Union, Local 170, AFL-CIO (Union). On June 1, 1993

the Union wrote to David Morrison, a Ross vice president in

charge of the Carlisle facility, formally advising him of the

organization activity and identifying 15 involved employees,

including David Jumper and Jumper's fiancee, Kathy Curtis.

Three incidents during the organizing campaign were alleged

below to constitute unfair labor practices by Ross.

First, at an assembly in late May 1993 Morrison told the

gathered employees "they did not need a union" and " 'he

would do anything in his power to keep the union out of the

building.' " App. 670.

Second, in late May or early June 1993 supervisor Michael

Simondi observed Jumper and a coworker exit the men's

restroom together and, when he entered the restroom, discov-

ered they had posted union literature inside. He removed

the postings and later admonished each of them separately

that " 'there was no solicitation on these premises.' " App.

670.

The third incident was Jumper's discharge. On August 12,

1993 Jumper, who had a history of tardiness and absenteeism,

asked his supervisor if he could change his upcoming August

16 personal birthday vacation day to August 12 so that he

could accompany Curtis to the hospital to be treated for an

injury she had suffered the previous day. Jumper's supervi-

sor responded that he lacked authority to approve the switch

and referred Jumper up the chain of command. Two higher-

ups similarly disclaimed approval authority and Jumper was

finally referred to human resource specialist Paula Hoch.

Jumper met with Hoch at about 8:15 the same morning and

explained his situation. She told him the vacation day had to

be scheduled in advance and, when he said he was leaving

anyway, warned him he would then incur additional absentee

"points." Jumper then left. When he arrived at work the

next day, August 13, he was greeted by Morrison and Hoch.

Morrison told Jumper he was being discharged in accord with

Ross's absence policy because he had exceeded the permissi-

ble number of absentee points, which he had.

The day he was fired, August 13, 1993, Jumper filed a

handwritten charge with the NLRB expressing his belief that

he had been "terminated from Ross Inc. due to union involve-

ment." App. 1. On March 4, 1994 Jumper filed a second,

typewritten charge alleging three separate unfair labor prac-

tices: Simondi's no-solicitation admonition, Morrison's com-

ments to the employees and the discharge. On March 18,

1994 the Board's General Counsel issued a complaint alleging

the same three unfair labor practices.

After a two-day hearing in February 1994 the Administra-

tive Law Judge (ALJ) issued a decision dated April 5, 1995

finding each of the three charges proven. In the decision the

ALJ denied Ross's motion to dismiss the first two charges as

time-barred under section 10(b) of the Act.

In a decision and order issued September 30, 1999 a

divided Board affirmed the ALJ's denial of Ross's motion to

dismiss and the findings that Simondi's no-solicitation admo-

nition and Jumper's discharge violated, respectively, section

8(a)(1) and section 8(a)(3) of the Act.1 The Board rejected

the ALJ's finding that Morrison's speech violated section

8(a)(1) because the majority found it not threatening.2

Ross petitioned for review and the Board cross-applied for

enforcement.

II.

We address Ross's challenge to each of the two unfair labor

practice findings separately.

A.

First we consider the Board's finding that Simondi violated

section 8(a)(1) of the Act when he instructed Jumper and a

__________

1 These two provisions make it an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title," 29

U.S.C. s 158(a)(1), and "by discrimination in regard to hire or

tenure of employment or any term or condition of employment to

encourage or discourage membership in any labor organization," id.

s 158(a)(3).

2 Board Members Brame and Hurtgen dissented from the finding

that the first two charges were not time-barred and Member

Hurtgen further dissented from the majority holding that Jumper's

discharge was in violation of the Act. Board Members Fox and

Liebman dissented from the finding that Morrison's comments did

not constitute an unfair labor practice.

coworker that "no solicitation" was allowed on Ross's premis-

es. Section 10(b) of the Act provides in relevant part:

Whenever it is charged that any person has engaged in

or is engaging in any such unfair labor practice, the

Board, or any agent or agency designated by the Board

for such purposes, shall have power to issue and cause to

be served upon such person a complaint stating the

charges in that respect, and containing a notice of hear-

ing before the Board or a member thereof, or before a

designated agent or agency, at a place therein fixed, not

less than five days after the serving of said complaint:

Provided, That no complaint shall issue based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge with the Board and the

service of a copy thereof upon the person against whom

such charge is made, unless the person aggrieved there-

by was prevented from filing such charge by reason of

service in the armed forces, in which event the six-month

period shall be computed from the day of his discharge.

29 U.S.C. s 160(b) (emphasis added). No one disputes that

the no-solicitation allegation in the complaint is time-barred

under a literal application of this provision because Jumper's

February 23, 1994 typewritten charge containing the allega-

tion was filed more than six months after Simondi's admoni-

tion which took place in late May 1993. The Board conclud-

ed, however, that the incident was timely charged because it

was closely related to Jumper's termination which was timely

charged on August 13, 1993. We disagree.

The NLRB has long construed section 10(b), with judicial

approval, to permit prosecution of an alleged violation that

was not timely charged if it is "closely related" to the

allegations in a timely filed charge. To determine whether

timely and untimely allegations are "closely related," the

Board has developed a tripartite test:

First, the Board will look at whether the otherwise

untimely allegations involve the same legal theory as the

allegations in the pending timely charge. Second, the

Board will look at whether the otherwise untimely allega-

tions arise from the same factual circumstances or se-

quence of events as the pending timely charge. Finally,

the Board may look at whether a respondent would raise

similar defenses to both allegations.

Nickels Bakery of Indiana, Inc., 296 N.L.R.B. 927, 928 (1989)

(citing Redd-I, Inc., 290 N.L.R.B. 1115, 1116 (1988)). Here

the Board found the separate allegations are closely related

based on (1) the "common legal theory" of "animus in opposi-

tion to the Union's organizational campaign"; (2) the "similar

factual circumstances" that each incident "arose in the con-

text of a single organizational campaign and was part of the

Respondent's overall efforts to resist that campaign"; and (3)

the "common defenses" that Ross "did not seek to unlawfully

restrict Jumper's union activity by the manager's placing

restrictions on Jumper's solicitation activities or by Jumper's

subsequent discharge." NLRB Dec. at 2-3. We hold that

the Board's finding of a factual nexus under the second prong

of the test is inadequate as we held regarding similar findings

in both Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017

(D.C. Cir. 1995), and G.W. Galloway Co. v. NLRB, 856 F.2d

275 (D.C. Cir. 1988).3

In Drug Plastics the Board's General Counsel filed a

complaint alleging a timely charged retaliatory discharge and

a series of uncharged anti-union acts in the months surround-

ing the discharge. The Board found the uncharged complaint

allegations closely related to the charged termination allega-

tion "because it found that the allegations 'arose out of the

Respondent's overall plan to resist the Union ...; that all the

allegations occurred after the respondent's acknowledged

awareness of the organizing effort ...; that several of the

allegations involved statements to [the discharged employee]

...; and that the 8(a)(1) allegations generally occurred dur-

ing the same time period as the 8(a)(3) allegation.' " Drug

Plastics, 44 F.3d at 1021. The Drug Plastics court concluded

__________

3 Having concluded the Board incorrectly found the factual prong

of the "closely related" test was satisfied, we do not address the

Board's findings on the test's two other prongs.

the Board's reasoning conflicted with the Board's own deci-

sion in Nippondenso Mfg. U.S.A., 299 N.L.R.B. 545 (1990),

which held that allegations were not "closely related" simply

because they involved "discriminatory acts against employees

'during, and in order to quell, a union campaign' " and "arise

from the same circumstances and sequence of events." Nip-

pondenso, 299 N.L.R.B. at 545. The court further concluded

the Board's determination that the uncharged allegations

were timely could not stand because the Board had not

overruled Nippondenso or explained its deviation from Nip-

pondenso's holding. Seeking to avoid a similar fate here, the

Board below "decided to overrule Nippondenso to the extent

that it conflicts with Nickels Bakery and other precedent ...

consistently holding that the requisite factual relationship

under the 'closely related' test may be based on acts that

arise out of the same anti-union campaign." NLRB Dec. at 2.

To no avail.

The Board's contention that the factual relationship prong

can be satisfied solely on the basis that the separate acts

arise out of the same anti-union campaign here is a deviation

from the very precedent it cites. As we stated in Drug

Plastics, Nickels simply "does not support the Board's conclu-

sion." 44 F.3d at 1021. The Board in Nickels did not even

address whether the circumstances there supported a closely

related finding but merely "overruled those cases holding or

implying that the catchall 'other acts' language preprinted on

the charge form provides a sufficient basis, on its own, to

support any and all 8(a)(1) complaint allegations" and re-

manded to the Regional Director to apply the closely related

test. Nickels, 296 N.L.R.B. at 929.4 In each of the other

__________

4 In its original context, the quoted language simply referenced a

footnote in Galloway which in turn "cited cases from other courts of

appeals referring to the finding of a sufficient relation between the

charge and complaint in circumstances involving 'acts that are part

of the same course of conduct, such as a single campaign against a

union,' NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321

(5th Cir. 1970), and acts that are all 'part of an overall plan to resist

organization.' NLRB v. Braswell Motor Freight Lines, 486 F.2d

743, 746 (7th Cir. 1973)." Nickels, 296 N.L.R.B. at 929 n.7 (citing

Galloway, 856 F.2d at 281 n.41).

cited cases the Board required both that the separate inci-

dents be part of the same union organizing campaign and

that they be part of an overall employer plan to undermine

the union activity. See Pioneer Hotel & Gambling Hall, 324

N.L.R.B. 918, 918 n.1 (1997); Recycle America, 308 N.L.R.B.

50, 50 n.2 (1992); Pincus Elevator & Elec. Co., 308 N.L.R.B.

684, 684 n.2, 690 (1992), enforced mem., 998 F.2d 1004 (3d Cir.

1993); Outboard Marine Corp., 307 N.L.R.B. 1333, 1334

(1992), enforced, 9 F.3d 113 (7th Cir. 1993); Well-Bred Loaf,

Inc., 303 N.L.R.B. 1016, 1016 n.1 (1991); Southwest Distrib-

uting Co., 301 N.L.R.B. 954, 955 (1991); Harmony Corp., 301

N.L.R.B. 578, 578-579 (1991); Beretta U.S.A. Corp., 298

N.L.R.B. 232 n.1 (1990), enforced, 943 F.2d 49 (4th Cir. 1991);

Van Dyne Crotty Co., 297 N.L.R.B. 899, 900 (1990).5 Al-

though the Board's decision here recites the separate inci-

dents were "part of the Respondent's overall efforts to resist

that campaign," NLRB Dec. at 2-3, the finding is unsupport-

ed in the record except by the happenstance that the unrelat-

ed two violations occurred during a single campaign and

involved the same pro-union employee. There is no evidence

to otherwise connect Jumper's discharge to Simondi's appar-

ently isolated and unauthorized invocation of an overbroad

solicitation policy.6 Nor is there any evidence that Simondi

was involved in Jumper's discharge. Cf. MECO Corp. v.

NLRB, 986 F.2d 1434, 1437 (D.C. Cir. 1993) (anti-union

comments of supervisor did not establish animus of discharge

of union adherent where there was "no showing that [supervi-

sor] played any role in [the] discharge"); Hudson, Inc., 275

N.L.R.B. 874, 874-75 (1985) (finding supervisor's anti-union

remarks did not "establish the requisite element of anti-union

animus" where he "played no part in [employer's] decision to

__________

5 While we point out that the decision below deviated from the

line of cases finding it sufficient if two incidents both occur during

the same campaign and are part of an overall union plan, we do not

decide whether or not those cases were correctly decided.

6 The Board declined to find that the Company's written solicita-

tion policy contained a "no-solicitation, no-distribution rule." Board

Dec. at 3.

lay off the employees").7

Not only is the Board's decision unsupported by its own

case law, it also flouts ours. In Drug Plastics the court

overturned the Board's "closely related" finding not only

because it was inconsistent with Nippondenso but also be-

cause the court's opinion in Galloway "dictate[d] its reversal."

Drug Plastics, 44 F3d at 1021. After examining the lan-

guage, legislative history and judicial construction of section

10(b) the Galloway court rejected the Board's position that an

unlawful dismissal and threats to strikers were sufficiently

related "because they occurred one day apart, involved the

same employer, and occurred at the same plant." 856 F.2d at

280. The court in Galloway explained:

It cannot be that allegations in a charge and a complaint

having no more in common than that they concern the

same employer and occur at the same location are suffi-

ciently related to satisfy Section 10(b). Were that the

rule, the Board would be free to include in a complaint

anything transpiring at an employer's place of business

without regard to the type of violation involved or when

it occurred. Such a broad interpretation of the Board's

power clearly would clash with the limiting intent per-

vading Section 10(b).

Id. at 280-81. Nor, the court concluded, was the Board's case

helped by the additional "link" that the alleged incidents

"occurred only one day apart":

__________

7 By contrast, in Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939 (D.C.

Cir. 1999), cited by the dissent, animus was inferred where both

alleged violations were committed at the direction of top manage-

ment. See Parsippany Hotel Management Co. v. NLRB, 99 F.3d

413, 423 (D.C. Cir. 1996) ("While it may be unreasonable to attrib-

ute to a corporation the anti-union sentiment expressed by low-level

supervisors, see Pittsburgh S.S. Co. v. N.L.R.B., 180 F.2d 731, 741

(6th Cir. 1950), aff'd., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479

(1951), it is eminently reasonable to assume that high-level corpo-

rate managers speak on behalf of the company when they express

anti-union animus.").

We cannot ... accept the proposition that mere chronol-

ogy is sufficient to put the Board beyond Section 10(b)'s

restraints. That a discharge occurred one day and a

strike the next day does not mean that the two events

had any common features. If the strike was sparked by

the discharge or was staged to protest the discharge, the

necessary relationship would likely exist. Similarly, if an

employee was fired for participating in a strike charac-

terized in a filed charge as improper, a complaint based

on that charge might permissibly assert that other em-

ployees were threatened with dismissal for taking part in

the same strike. However, if the consecutive occurrence

of the two incidents was no more than happenstance, the

relationship essential to incorporation of uncharged inci-

dents into complaints is entirely lacking.

856 F.2d at 281 (footnote omitted).

We have no closer connection here than was present in

Galloway or in Drug Plastics. The coincidence of the two

separate violations during the same organizing campaign does

not of itself create a close factual relationship. As we indicat-

ed in Galloway and Drug Plastics, some additional factual

similarity is necessary before an allegation not timely charged

can be exempted from the literal application of section 10(b)'s

limitation period under the closely related test. And there is

none here. To permit the Board to pursue the untimely

charged 8(a)(1) violation based on the timely charged but,

under Galloway, unrelated 8(a)(3) violation "would be tanta-

mount to allowing the Board to enlarge its jurisdiction beyond

that given it by Congress." Galloway, 856 F.2d at 279. That

we may not do. We therefore grant Ross's petition with

regard to the violation based on Simondi's admonition to

Jumper.

B.

Next we address the Board's finding that Ross violated

section 8(a)(3) of the Act by discharging Jumper on account of

his union activity. Because the finding is "supported by

substantial evidence on the record considered as a whole," we

must accept it as "conclusive." 29 U.S.C. s 160(e), (f).

Under the Board's established Wright Line test,

the general counsel must first show that the "protected

activity was a motivating factor in the adverse employ-

ment decision." Frazier Indus. Co., Inc. v. NLRB, 213

F.3d 750, 755 (D.C. Cir. 2000) (internal quotation marks

omitted). If this prima facie showing is made, the bur-

den shifts to the employer to demonstrate that "it would

have made the adverse decision even had the employee

not engaged in protected activity." Vincent Ind. Plas-

tics, Inc. v. NLRB., 209 F.3d 727, 735 (D.C. Cir. 2000)

(citing Wright Line, Inc., 251 N.L.R.B. 1083, 1089, 1980

WL 12312 (1980)). In determining whether an employer

had a discriminatory motive, "the NLRB may 'consider[ ]

such factors as the employer's knowledge of the employ-

ee's union activities, the employer's hostility toward the

union, and the timing of the employer's action.' " Id.

(quoting Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir.

1994)).

Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92, 99 (D.C.

Cir. 2000). The Board below based its finding of anti-union

animus on management's knowledge that Jumper was partici-

pating in the ongoing union organization campaign and on the

two other incidents of anti-union animus by management:

Simondi's admonition to Jumper and Morrison's comments to

the employees. Ross does not challenge the evidentiary basis

of the Board's factual findings and we conclude they are

sufficient to establish animus.8 The Board further found

Ross had failed to meet its burden under Wright Line of

showing it would have discharged Jumper even if he had not

been a union organizer. Specifically, the Board, like the ALJ,

found that Ross had no rule requiring that time off be

scheduled in advance that would support Ross's proffered

__________

8 While we doubt that Simondi's admonition is properly attribut-

able to Ross, see supra pp. 8-9, we do not reach the question

because Ross has not challenged its attribution.

alternative justification for firing Jumper. This finding too is

supported in the record by the absence of any such rule from

Ross's written time-off policies and by the testimony of a

Ross employee that she had previously asked for and received

time-off without prior approval.

For the foregoing reasons, Ross's petition for review is

granted as to the no-solicitation violation and denied as to

Jumper's discharge and the Board's cross-application for

enforcement is denied as to the former and granted as to the

latter.

So ordered.

Karen Lecraft Henderson, Circuit Judge, writing separately:

Although Ross does not raise the issue on appeal, I write

separately to express my agreement with Board Members

Hurtgen and Brame that section 8(c) of the National Labor

Relations Act precludes considering Morrison's anti-union

statements to employees that "they did not need a union" and

"he would do anything in his power to keep the union out of

the building," App. 670, as evidence of Ross's anti-union

animus in discharging Jumper. See Board Dec. at 8 (Hurt-

gen), 12 n.19 (Brame); see also Lampi LLC, 327 N.L.R.B.

No. 511, 1998 WL 856130, at *7 n.7 (1998) (Brame, dissent-

ing). Section 8(c) provides:

(c) Expression of views without threat of reprisal or

force or promise of benefit

The expressing of any views, argument, or opinion, or

the dissemination thereof, whether in written, printed,

graphic, or visual form, shall not constitute or be evi-

dence of an unfair labor practice under any of the

provisions of this subchapter, if such expression contains

no threat of reprisal or force or promise of benefit.

29 U.S.C. s 158(c). Because the Board specifically found that

"[i]n the circumstances of this case, there is no sufficient

objective basis for finding that employees would reasonably

tend to view Morrison's statement as a threat," Board Dec. at

3, section 8(c) on its face plainly bars the Board not only from

finding the speech was an unfair labor practice, which the

Board majority acknowledged, but also from using it as

"evidence of an unfair labor practice." Thus, the Board's

decision to treat Morrison's statements as "evidence of ani-

mus establishing [Ross's] discharge motive," in the face of its

finding that the statement was "not unlawful in the context of

this case," was in direct violation of section 8(c) and beyond

the Board's authority. See Medeco Security Locks, Inc. v.

NLRB, 142 F.3d 733, 744 (4th Cir. 1998) (citing Alpo Pet

Foods, Inc. v. NLRB, 126 F.3d 246, 252 (4th Cir. 1997)); BE

& K Constr. Co. v. NLRB, 133 F.3d 1372, 1375-77 (11th Cir.

1997); Holo-Krome Co. v. NLRB, 907 F.2d 1343, 1345-47

(2d Cir. 1990); NLRB v. Eastern Smelting & Refining Corp.,

598 F.2d 666, 670 (1st Cir. 1979); Florida Steel Corp. v.

NLRB, 587 F.2d 735, 750-54 (5th Cir. 1979); NLRB v.

Rockwell Mfg. Co., 271 F.2d 109, 118-19 (3d Cir. 1959);

Pittsburgh Steamship Co. v. NLRB, 180 F.2d 731, 735 (6th

Cir. 1950); see also International Union, United Automobile,

Aerospace & Agricultural Implement Workers v. NLRB, 363

F.2d 702, 707 (D.C. Cir.) (rejecting argument NLRB used

section 8(c) protected statements as "as some evidence of the

unfair labor practices themselves" and concluding statements

were used only to "place[ ] ... other acts in context"), cert.

denied, 385 U.S. 973 (1966).

Randolph, Circuit Judge, concurring: While I join all of

Judge Henderson's opinion, I believe more should be said

about the Board's treatment of s 10(b) of the National Labor

Relations Act, 29 U.S.C. s 160(b),1 and the confusion this has

caused in the Board's analysis and in some courts.

Much of the confusion stems from a failure to distinguish

between the two separate functions s 10(b) performs. The

statute first sets down a condition for the Board's exercise of

jurisdiction. Only after someone--an employee or a union,

__________

1 For ease of reference, s 10(b) is set forth in full:

Whenever it is charged that any person has engaged in or is

engaging in any such unfair labor practice, the Board, or any

agent or agency designated by the Board for such purposes,

shall have power to issue and cause to be served upon such

person a complaint stating the charges in that respect, and

containing a notice of hearing before the Board or a member

thereof, or before a designated agent or agency, at a place

therein fixed, not less than five days after the serving of said

complaint: Provided, that no complaint shall issue based upon

any unfair labor practice occurring more than six months prior

to the filing of the charge with the Board and the service of a

copy thereof upon the person against whom such charge is

made, unless the person aggrieved thereby was prevented from

filing such charge by reason of service in the armed forces, in

which event the six-month period shall be computed from the

day of his discharge. Any such complaint may be amended by

the member, agent, or agency conducting the hearing or the

Board in its discretion at any time prior to the issuance of an

order based thereon. The person so complained of shall have

the right to file an answer to the original or amended complaint

and to appear in person or otherwise and give testimony at the

place and time fixed in the complaint. In the discretion of the

member, agent, or agency conducting the hearing or the Board,

any other person may be allowed to intervene in the said

proceeding and to present testimony. Any such proceeding

shall, so far as practicable, be conducted in accordance with the

rules of evidence applicable in the district courts of the United

States under the rules of civil procedure for the district courts

of the United States, adopted by the Supreme Court of the

United States pursuant to section 2072 of Title 28.

29 U.S.C. s 160(b).

for instance--has filed an unfair labor practice "charge" does

the Board have jurisdiction to issue a "complaint" alleging

unfair labor practices. See NLRB v. Fant Milling Co., 360

U.S. 301, 307 (1959). When a "charge" is filed, the Board

investigates it and, if there is merit to the charge, frames a

complaint, which the General Counsel then prosecutes. Dis-

putes occasionally arise about whether the complaint has gone

beyond the charge. Although s 10(b) contemplates that the

"complaint" will "stat[e] the charges," the Supreme Court has

held that the Board may, in formulating its complaint, take

into account events occurring after the charge was filed, so

long as the post-charge "unfair labor practices ... are related

to those alleged in the charge and ... grow out of them,"

National Licorice Co. v. NLRB, 309 U.S. 350, 369 (1940);

Fant Milling Co., 360 U.S. at 309.

Section 10(b) also functions much like a statute of limita-

tions. No complaint may be "based" on unfair labor practices

occurring more than six months prior to the filing of the

charge. This proviso, added to s 10(b) in 1947, is at the

heart of the case before us. The Board's current interpreta-

tion of the proviso is that the complaint may include un-

charged unfair labor practices if they are "closely related" to

misconduct that was timely charged. It is this "test" which

Judge Henderson and I find not satisfied here, but which

Judge Garland believes was met.

A few years after Congress added the s 10(b) proviso,

Judge Jerome Frank, speaking for the court in NLRB v.

Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952), summarized

several decisions as holding:

(1) A complaint, as distinguished from a charge, need not

be filed and served within six months, and may therefore

be amended after the six months. (2) If a charge was

filed and served within six months after the violations

alleged in the charge, the complaint (or amended com-

plaint) although filed after the six months, may allege

violations not alleged in the charge if (a) they are closely

related to the violations named in the charge and (b)

occurred within six months before the filing of the

charge.

Id. at 491. The Board adopted this formulation of the

"closely related" test in decisions such as Redd-I, Inc., 290

N.L.R.B. 1115, 1118 (1988). Later Board decisions, such as

Nickles Bakery, broke the "closely related" test down into

three parts:

First, the Board will look at whether the otherwise

untimely allegations involve the same legal theory as the

allegations in the pending timely charge. Second, the

Board will look at whether the otherwise untimely allega-

tions arise from the same factual circumstances or se-

quence of events as the pending timely charge. Finally,

the Board may look at whether a respondent would raise

similar defenses to both allegations.

Nickles Bakery of Indiana, 296 N.L.R.B. 927, 928 (1989).

The most important thing to notice about Nickles Bakery is

that in reformulating the test, the Board dropped out the

requirement of s 10(b), as set forth in Dinion Coil Co. and

the earlier cases, that the allegations added to the complaint

must concern unfair labor practices occurring within six

months of the charge. Nonetheless, I believe that it is

necessary for this requirement to be satisfied in each case.

The filing of the charge serves to toll the six-month limitation

period. See Kelly-Goodwin Hardware, 269 N.L.R.B. 33, 36-

37 (1984). It follows that alleged illegalities occurring more

than six months before the charge should be barred. In view

of s 10(b) the Board may not reach back years before the

charge is filed and add unfair labor practices to the complaint

even if they are "closely related" to those alleged in the

charge. The Board has not been entirely clear about this and

we have compounded the confusion by expressing approval of

the Nickles Bakery test in Drug Plastics & Glass Co. v.

NLRB, 44 F.3d 1017, 1018-19 (D.C. Cir. 1995), even though

Drug Plastics did not deal with the limitations proviso of

s 10(b).2

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2 Drug Plastics dealt instead with the jurisdictional condition

portion of the statute. The Board's complaint in Drug Plastics, filed

on September 30, 1991, alleged unfair labor practices in February,

April and June, 1991. The charge upon which the complaint was

Our latest pronouncement on s 10(b) is Pioneer Hotel, Inc.

v. NLRB, 182 F.3d 939, 944 (D.C. Cir. 1999), which plays a

prominent role in Judge Garland's dissent. One cannot tell

from reading our opinion in Pioneer Hotel, Inc. (or the

Board's) when the charge in that case was filed. But the

administrative record indicates that the unfair labor practice

added to the Board's complaint occurred less than six months

from the filing of the original charge. This at least makes the

case consistent with the Supreme Court's holding in Local

Lodge No. 1424, Int'l Ass'n of Machinists v. NLRB, 362 U.S.

411 (1960), commonly known as Bryan Manufacturing, a case

the Board has too frequently ignored in recent years.

The facts of Bryan Manufacturing are important. A union

and an employer executed a collective bargaining agreement

on August 10, 1954, even though the union did not represent a

majority of the employees. Contained in the agreement was

a union security clause--that is, a clause requiring all employ-

ees to join the union. Under Board law, it was "an unfair

labor practice for an employer and a labor organization to

enter into a collective bargaining agreement which contains a

union security clause, if at the time of original execution the

union does not represent a majority of the employees in the

unit." 362 U.S. at 413. Charges filed with the Board about a

year after execution of the agreement alleged the union's lack

__________

based was filed on July 15, 1991. The charge alleged only one

instance of an unlawful discharge and did not mention the other six

allegations eventually included in the complaint. See Drug Plastics,

44 F.3d at 1018-19. Three of the new allegations involved activities

within six months of the July 15 charge and three did not. See id.

at 1019. While the court could have held that some of the com-

plaint allegations were time-barred by s 10(b), it did not. Instead,

it held that the Board lacked jurisdiction over all six additional

unfair labor practices alleged in the complaint because it was

"unable to connect the allegations in its complaint with the charge

allegation." See id. at 1022. The court does mention the six-month

limitation in the last line of its opinion, but only to note that the

"period of s 10(b) has since elapsed," suggesting that any attempt

to amend the complaint would fail because there was an inadequate

factual nexus in the original charge. Id.

of majority status in August 1954 "and the consequent illegal-

ity of the continued enforcement of the agreement." Id. at

414. Complaints to this effect followed. The Court held that

the proviso in s 10(b) barred the complaints. Although exe-

cution of the agreement was itself an unfair labor practice, it

occurred more than six months before the charges. As to the

continuing enforcement of the union security clause, the only

way to show its illegality was to prove that the union lacked a

majority when it executed the agreement. This meant that

the charges were, in the language of the proviso, "based"

upon an unfair labor practice that took place more than six

months before the charges were filed. In so holding the

Court quoted with approval the dissenting opinion of one

Board member recognizing that " 'the continuing invalidity of

the agreement is directly related to and is based solely on its

initial invalidity,' " 362 U.S. at 423 (italics added). To the

Court in Bryan Manufacturing, the direct relationship be-

tween the time-barred allegation and the timely allegation

was a reason for barring the complaint.

In light of the language of s 10(b) and the need to adhere

to the Supreme Court's parsing of that language in Bryan

Manufacturing, I believe the Board errs whenever it permits

complaints to go forward on allegations regarding unfair

labor practices that occurred more than six months before the

charge. Does that describe this case? Not necessarily. The

original charge alleging a single act of unlawful discharge in

August 1993 was filed October 21, 1993. An amended charge

alleging additional unfair labor practices in May and June of

1993 was filed on March 3, 1994. These additional allegations

fell outside the six-month time limit imposed by s 10(b), and

were therefore barred unless the amended charge related

back to the original charge, much as an amended pleading in

civil litigation may relate back to the original pleading pursu-

ant to Rule 15(c) of the Federal Rules of Civil Procedure.3

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3 Rule 15(c) permits an amended pleading to relate back to the

date of the original pleading if the claim or defense in the amended

pleading "arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading." Fed. R.

See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,

149-50 n.3 (1984) (per curiam). So long as the Board's

closely related test is kept within proper bounds,4 it may

serve the same function as Rule 15(c) with respect to

s 10(b)'s six-month limitation period. I agree with Judge

Henderson that in this case, the Board's test does not save

the untimely charge.

__________

Civ. P. 15(c). The rule liberalized the practice under common law,

reflecting the notice role played by pleadings and the interest in

resolving claims on their merits rather than on the basis of techni-

calities. See 6 Charles Alan Wright et al., Federal Practice and

Procedure s 1471 (1990).

4 The reasons Congress inserted the six-month limitations should

guide the Board. Like other statutes of limitations, see 3M Co. v.

Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994), the s 10(b) proviso is

designed to bar the consideration of events "after records have been

destroyed, witnesses have gone elsewhere, and recollections of the

events in question have become dim and confused." Bryan Mfg.,

362 U.S. at 419 (quoting H.R. Rep. No. 80-245 at 40 (1947)).

Statutes of limitation also provide a measure of repose, a point at

which an entity is free to make plans without the specter of legal

proceedings. See 3M, 17 F.3d at 1453. This aspect of repose is

important in labor relations: the s 10(b) proviso promotes labor

peace by "stabiliz[ing] existing bargaining relationships." Bryan

Mfg., 362 U.S. at 419.

Garland, Circuit Judge, concurring in part and dissenting

in part:

I agree that substantial evidence supports the Board's

finding that Ross Stores discharged an employee because of

his support for the union. I respectfully dissent, however,

from the conclusion that the Board's other finding--that Ross

unlawfully admonished the same employee for soliciting for

the union--must be set aside because the admonishment is

not "closely related" to the discharge.

As the court acknowledges, section 10(b) permits prosecu-

tion of an untimely charge if it is "closely related" to a timely

charge. See Op. at 5; see also Pioneer Hotel, Inc. v. NLRB,

182 F.3d 939, 944 (D.C. Cir. 1999); Parsippany Hotel Mgmt.

Co. v. NLRB, 99 F.3d 413, 417 (D.C. Cir. 1996); Drug

Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1021 (D.C. Cir.

1995). It is true that this circuit has previously held this test

to require more than that the incidents arise during the same

anti-union campaign, see Drug Plastics, 44 F.3d at 1021

(relying on Nippondenso Mfg. U.S.A., Inc., 299 N.L.R.B. 545

(1990)), and more than that they be close in time and involve

the same employer and plant, see id. at 1020-21. But there is

considerably more than that here.1

The Board's opinion makes clear that the two allegations

are closely related. Indeed, the Board expressly used the

earlier incident--in which David Jumper's supervisor caught

him posting union literature and admonished him against

doing so--as part of the basis for its finding that Jumper was

discharged because of anti-union animus. See Ross Stores,

329 N.L.R.B. No. 59, at 2, 4 (1999). The incident underlying

the untimely charge (the unlawful admonishment) was thus

closely related to the incident underlying the timely charge

__________

1 Because, as discussed below, the Board's decision can be sus-

tained under the test approved in Drug Plastics, there is no need to

consider whether the Board could adopt a more expansive test by

overruling Nippondenso, see Op. at 7, the NLRB decision upon

which Drug Plastics relied. See Drug Plastics, 44 F.3d at 1021.

(the unlawful discharge): the former provided, and proved,

the motive for the latter.2

That factual connection puts this case on a par with Pio-

neer Hotel, Inc. v. NLRB, in which we recently rejected the

argument that an amended complaint was insufficiently relat-

ed to an original allegation under section 10(b). See 182 F.3d

at 945. In Pioneer Hotel, the original allegation was that the

employer discharged an employee for supporting the union.

The amended allegation was that the employer had previously

fired the same employee's supervisor for refusing an order to

fire the employee for his union support. The two allegations

were factually connected, we held, because the earlier inci-

dent was "[p]art of the evidence that Pioneer fired [the

employee] for union activism." 182 F.3d at 944-45. Just as

the earlier incident in Pioneer Hotel was evidence that the

employee was fired for union activism rather than as part of a

neutral corporate restructuring, the earlier incident in this

case was evidence that Ross Stores fired Jumper because of

animus rather than absenteeism. See also NLRB v. Fant

Milling Co., 360 U.S. 301, 304 & n.5 (1959) (holding that an

untimely allegation of an unlawful unilateral wage increase

was sufficiently related to a timely refusal-to-bargain charge,

because the wage increase "largely influenced" the Board's

finding that an unlawful refusal to bargain had occurred).

__________

2 Although the court recognizes that "it is eminently reasonable to

assume that high-level corporate managers speak on behalf of the

company when they express anti-union animus," Op. at 9 n.7

(quoting Parsippany Hotel Mgmt., 99 F.3d at 423-24), the court

expresses doubt about attributing the supervisor's (Simondi's) ad-

monishment to the company--apparently because it believes Simon-

di was not a sufficiently "high-level" manager. Op. at 11 n.8; see

id. at 8-9 & n.7. That rationale is inconsistent with the fact that

Simondi was Ross' operations manager. Ross Stores, 329 N.L.R.B.

No. 59, at 3. Moreover, as the court notes, Op. at 11 n.8, that

rationale is foreclosed from our consideration because Ross Stores

never challenged the attribution. See Parsippany Hotel Mgmt., 99

F.3d at 418 (holding that court will not consider argument not

raised in petitioner's opening brief).

That factual connection also distinguishes this case from

Drug Plastics & Glass Co. v. NLRB. There, in concluding

that untimely allegations of discriminatory statements were

unrelated to a timely allegation of unlawful discharge, the

court noted that the General Counsel's complaint made "no

mention whatsoever" of the discharged employee "except in

the single allegation" relating to the discharge. 44 F.3d at

1020. Here, by contrast, the complaint expressly noted that

Jumper was the target of the unlawful admonition against

soliciting for the union, and that Jumper was also the employ-

ee who had been unlawfully discharged. Complaint pp 5, 7;

see also FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 942 n.5

(4th Cir. 1995) (distinguishing FPC from Drug Plastics on the

ground that, unlike the untimely allegations in Drug Plastics,

those in FPC directly involved the same employees as did the

original charge).3 Moreover, the Board held that the admoni-

tion allegation was closely related to the discharge allegation

because it "alleged a coercive act manifesting specific animus

against Jumper." Ross Stores, 329 N.L.R.B. No. 59, at 2

(emphasis added); see also id. at 3 (noting that relatedness

was established by the need to investigate Ross' "prior indica-

tions of animus toward the organizing campaign and in

particular its dealings with Jumper regarding that cam-

paign") (emphasis added); id. at 4 (stressing that "the over-

broad oral no-solicitation rule" was "dictated directly to

Jumper").

__________

3 Jumper's initial, timely-filed charge can also fairly be read as

encompassing the solicitation incident. In that charge, Jumper

complained that he had been dismissed because of his "union

involvement." Charge Against Employer p 2 (Oct. 21, 1993). That

union involvement surely included the solicitation incident, in which

Jumper was admonished after his supervisor discovered him post-

ing union literature in the men's room. See Fant Milling, 360 U.S.

at 307 (1959) ("A charge filed with the Labor Board is not to be

measured by the standards applicable to a pleading in a private

lawsuit.").

In sum, because the two charges at issue in this case are

closely related, and are not bound together simply by "the

coincidence of the two separate violations [occurring] during

the same organizing campaign," Op. at 10, the admonition

allegation is not time-barred under section 10(b).