# Luther W. Shumate, and Union Carbide Corporation, Intervenor v. National Labor Relations Board > Court of Appeals for the Fourth Circuit · December 2, 1971 · 452 F.2d 717 URL: https://www.frixlaw.com/law-library/cases/9457640 ## Case - **Full name:** Luther W. SHUMATE Et Al., Petitioners, and Union Carbide Corporation, Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** December 2, 1971 - **Citations:** 452 F.2d 717; 78 L.R.R.M. (BNA) 2905 - **Precedential status:** Published - **Opinion:** Dissent by Bryan - **Judges:** Bryan, Craven, Butzner - **Cited by:** 14 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/9457640 ## Opinion text ALBERT Y. BRYAN, Circuit Judge (dissenting): Time-barred, the Board has said and I agree, was the complaint of the petitioning employees by reason of the six-month limitation of § 10(b) in the NLRA. A chronology of the cardinal circumstances follows: July 24, 1967 Strike called. August-September 1967 Employees resigned from union. September-October 1967 Employees returned to work and crossed picket line. October 9, 1967 Strike terminated. October 1967 Charges filed against employees for crossing picket line. October 1967 Employees notified of hearings on charges. October-November 1967 Employees deny union jurisdiction by reason of their resignations. October-November 1967 Hearings held on charges, employees not appearing. November 1967 Employees notified that they had been expelled and fined. No appeal taken. April 17, 1968 Notice given employees of fines, due, and of civil suit if not paid by April 24, 1968. May 21, 1968 Suit filed In State court— still pending. June-July 1968 Unfair labor practice charges filed by employees against union because of threat of suit. October 10, 1968 Consolidated complaint issued on the charges filed with Board. January 22, 1970 Board dismissed complaint as time-barred. There can be no doubt that the notice of expulsion and amercement was communicated to the employees no later than November 1967; nor is there doubt that these notices inherently were demands for payment of the fines. I. The position of the employees, first and fundamentally, is that their resignations terminated their obligation not to cross the picket line; that consequently they could not be held in violation of the union’s rule; ergo, the expulsions and impositions were meaningless. They say the only definitive acts of the union were the threat of suit and suit, both of which occurred well within six months before the unfair labor practice charges were filed. Alternatively, they maintain that at least these acts were so related to the original offense as to constitute a continuance of it. They rely on what is designated as the first “situation” in the Bryan case, Local Lodge No. 1424 v. NLRB, 362 U.S. 411 , 80 S.Ct. 822 , 4 L.Ed.2d 832 (1960). It is defined by the Court as follows: “The first is one [situation] where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events.” 362 U.S. at 416 , 80 S.Ct. at 826 . That situation is embraced here by the majority. As is manifest from the excerpt just quoted, this view flagrantly disregards the law of Bryan. To come within the first situation the “occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices”. Here they positively do not. The Board finds as a fact that “it is not urged that the threat to bring suit and the actual institution of the court proceedings independently violated the Act”. 180 NLRB,-, -n. 8 (1970). (A.c- *722 cent added.) General Counsel, in advocacy of employees and opposing the conclusion of the Board, conceded before the Board that “there is nothing unlawful in these acts in and of themselves”. Id.-. . For me, our case is completely and exclusively within the second situation stated by the Court: “ * * * where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. * * * And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.” 362 U.S. at 416-17 , 80 S.Ct. at 827 . Whether the union’s November 1967 action was effectual or ineffectual, lawful or unlawful, it is still the event to which the contention of the employees must necessarily, and does actually refer. It is the antecedent of the threat and the civil suit forming the employees’ charges. Without advertence to the November 1967 event the complaint would have no body, for alone it was innocuous, as we have seen. The insecurity of the employees’ stance is disclosed by the query: had this case proceeded to its merits, would not the determinative premise have been the legality of the expulsion and levy? The gravamen of the complaint is the invalidity of the union’s November condemnation of the employees. That is the grievance pressed upon the Board. Employees argue from that solitary base. Reversion to it was irreplaceable because there was nothing in the subsequent contacts constituting an unlawful labor practice. In their briefs, the complaining parties with persistence attack the union’s expelling and punitive resolves. Incidentally, in this way.they quite rightfully recognize the union’s 1967 acts as the original sin. Actually, at this stage of the case the correctness or incorrectness of the union’s initial decisions is immaterial. Their worth lies in the fact that, right or wrong, they mark the start of the employees’ plaint. Without them, as we have seen, there is not even the pretense of an unfair labor practice. The November determinations were not simply background of a subsequent unfair practice. Utilization of them in this wise is decried by the Court in Bryan, supra, 362 U.S. at 417 , 80 S.Ct. at 827 , in this fashion: “ * * * the use of the earlier unfair labor practice is not merely ‘evidentiary,’ since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful.” (Accent added.) Finally, in not measuring the six months from November 1967 the employees give the force of verity to their allegations of no union jurisdiction over them. Only in this manner can they ignore the incidence of the November 1967 affair. They thus would brush it aside as of no efficacy, asserting that what matters is only what occurred in 1968. Jurisdiction or no over the employees by the union was a question for the Board. Indeed, the employees themselves submitted that very issue to the Board, there, again, placing the birth of the complaint at November 1967. Overall, Bryan, supra, 362 U.S. at 415-17 , 80 S.Ct. at 822 , precisely designs decision here. There the collective bargaining agreement executed in August 1954 included a “union security” condition. As the union did not on that •date represent a majority of the employees, the clause was in violation of the NLRA and so an unfair labor practice. Ten or more months thereafter charges were filed with the Board demonstrating the illegality of the agreement. The Court declared that the continued enforcement of the agreement within the 6-month limitation did not vitiate the earlier bar of § 10(b). For the same reason, presently, the Board was free of error in declaring the complaint too late, notwithstanding implementation of the November incident came within the mandatory six months. *723 II. Likewise to me, the limitation of § 10(b) was quite available to the Board as ground for decision. The proviso precluding issuance of a complaint for an unfair labor practice committed more than six months prior to the filing of the charges is not jurisdictional, contend the employees, but only a procedural requisite. Hence, they continue, it was waivable, and was waived here, by the union’s failure to interpose it. For this thesis numerous decisions are summoned. 1 Employees’ position is hardly a foil to the Board’s resort to 10(b). To begin with, the Court stated in Bryan, supra, 362 U.S. at 429 , 80 S.Ct. at 833 , “As expositor of the national interest, Congress, in the judgment that a six-month limitations period did ‘not seem unreasonable’ * * * barred the Board from dealing with past conduct after that period has run, even at the expense of the vindication of statutory rights”. (Accent added.) Mr. Justice Frankfurter in dissent, while opposing the time-bar decision, said: “Congress no doubt wanted to put stale claims to rest, and it did so by a relatively short statute of limitations for permitting claims to be brought to litigation. If six months are allowed to pass by without a charge against an unfair labor practice being filed, Congress said that is an end of the matter, and a charge cannot be filed thereafter.” 362 U.S. at 431 , 80 S.Ct. at 834 . (Accent added.) Accepting, arguendo, the employees’ reading of the statute and perusing their-authorities, it cannot be concluded that the Board, too, is bound to these premises. Waiver, as advanced by employees, is a proposition enforcible only between litigants; the cited precedents go not a little further. Whether jurisdictional or procedural, § 10(b) must foreclose waiver as a plea against the Board. No case to the contrary has been brought forward. If the employees’ footing were sound, the result would be to imbue labor and management with the power to enlarge, just as far as they wished, the period stipulated by law for filing complaints. By agreement they could confederate to refrain from filing charges and from interjecting waiver. This might be mutually desirable if they wished to defer indefinitely an advisory opinion or direction from the Board. Dispatch of the resolution of labor disputes, to remove blockage of the flow of commerce, was a prompting cause for Congress’ acceleration of Board decisions. Allowing the parties to extend the time would thwart public interest in the quick settlement of management-labor problems. I would enforce the Board’s order of dismissal. . Belo Corp. v. NLRB, 411 F.2d 959 , 966 (5 Cir. 1969) ; NLRB v. Silver Bakery, Inc., 351 F.2d 37, 39 (1 Cir. 1965) ; NLRB v. A. E. Nettleton Co., 241 F.2d 130 , 133 (2 Cir. 1957) ; NLRB v. Clausen, 188 F.2d 439, 443 (3 Cir. 1951) ; cf. N.L.R.B. v. MacMillan Ring-Free Oil Co., Inc., 394 F.2d 26 (9 Cir. 1968) ; and the case, cited by the majority, of Chicago Roll Forming Corp., 167 NLRB 961 , 971 (1967), enforced sub non., NLRB v. Chicago Roll Forming Corp., 418 F.2d 346 (7 Cir. 1969). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9457640. Public record. Not legal advice.