# Ross Stores, Inc. v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · January 12, 2001 · 235 F.3d 669 URL: https://www.frixlaw.com/law-library/cases/9439236 ## Case - **Full name:** ROSS STORES, INC.,Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** January 12, 2001 - **Citations:** 235 F.3d 669; 344 U.S. App. D.C. 297; 166 L.R.R.M. (BNA) 2207; 2001 U.S. App. LEXIS 449 - **Precedential status:** Published - **Opinion:** Concurrence by Randolph - **Judges:** Garland, Henderson, Randolph - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9439236 ## How later opinions describe it (automated extraction) - recognizing that it would have been “eminently reasonable” to impute animus to the company from a “high-level” manager, but holding that anti-union statements of a supervisor did not prove the company’s animus because there was not “any evidence that [the supervisor] was invol… - explaining that when the Board found that there was “no sufficient objective basis” for finding that employees viewed a statement as a threat, § 158(c) “plainly bars the Board not only from finding the speech was an unfair labor practice . . . but also from using it as ‘eviden… - stating that the Board’s finding, that the employer “had no rule requiring that time off be scheduled in advance,” was “supported in the record by the absence of any such rule from [the employer’s] written time-off policies” ## Opinion text 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 § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160 (b), 1 and the confusion this *677 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 § 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, 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 , 79 S.Ct. 1179 , 3 L.Ed.2d 1243 (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. Disputes occasionally arise about whether the complaint has gone beyond the charge. Although § 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 , 60 S.Ct. 569 , 84 L.Ed. 799 (1940); Fant Milling Co., 360 U.S. at 309 , 79 S.Ct. 1179 . Section 10(b) also functions much like a statute of limitations. 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 § 10(b) in 1947, is at the heart of the case before us. The Board’s current interpretation of the proviso is that the complaint may include uncharged 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 § 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 complaint) 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 WL 214320 (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 allegations arise from the same factual circumstances or sequence 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 WL 224354 (1989). The most important thing to notice about Nickles Bakery is that in reformulating the test, the Board dropped out the requirement of § 10(b), as set forth in Dinion Coil Co. and the earlier cases, that the allegations added to the complaint *678 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 Hardwood Co., 269 N.L.R.B. 33 , 36-37, 1984 WL 36139 (1984). It follows that alleged illegalities occurring more than six months before the charge should be barred. In view of § 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 § 10(b). 2 Our latest pronouncement on § 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 , 80 S.Ct. 822 , 4 L.Ed.2d 832 (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 employees 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 , 80 S.Ct. 822 . Charges filed with the Board about a year after execution of the agreement alleged the union’s lack of majority status in August 1954 “and the consequent illegality of the continued enforcement of the agreement.” Id. at 414 , 80 S.Ct. 822 . Complaints to this effect followed. The Court held that the proviso in § 10(b) barred the complaints. Although execution 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 *679 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 , 80 S.Ct. 822 (italics added). To the Court in Bryan Manufacturing, the direct relationship between the time-barred allegation and the timely allegation was a reason for barring the complaint. In light of the language of § 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 § 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 pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. 3 See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 , 149-50 n. 3, 104 S.Ct. 1723 , 80 L.Ed.2d 196 (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 § 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. . For ease of reference, § 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 *677 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 Stales 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. § 160 (b). . 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 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 complaint allegations were time-barred by § 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 § 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. . Rule 15(e) 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. 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 technicalities. See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1471 (1990). . 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 § 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 , 80 S.Ct. 822 (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 § 10(b) proviso promotes labor peace by "stabilizing] existing bargaining relationships.” Bryan Mfg., 362 U.S. at 419 , 80 S.Ct. 822 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9439236. Public record. Not legal advice.