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Page 19, footnote 12, line 5, substitute "111 S.Ct. 671" for
"xx U.S. xx".
Randall E. Nash, with whom Grady and Dwyer, was on brief for
_______________
_______________
petitioner.
Robert J. Englehart, Attorney, with whom Jerry M. Hunter,
____________________
________________
General Counsel, Yvonne T. Dixon, Acting Deputy General Counsel,
________________
Nicholas E. Karatinos, Acting Associate General Counsel, Aileen
_____________________
______
A. Armstrong, Deputy Associate General
Counsel, and Linda
_____________
_____
Dreeben, Supervisory Attorney, National Labor Relations Board,
_______
were on brief for respondent.
Henry F. Telfeian, with whom Keck, Mahin & Cate, was on
__________________
___________________
brief for intervenor.
____________________
May 26, 1993
____________________
TORRUELLA,
decision and
"Board").
The
order of
Circuit Judge.
_____________
the National
General Counsel
In this
case we
Labor Relations
of the Board
review a
Board (the
brought an
unfair
labor
practice
complaint against
the formal
dismissed the
limitations
complaint
prescribed by
rejected
resuscitate
timely
the
these
charge
related."
three
underlying
the filing
General
Counsel.
barred by the
section 10(b)
29 U.S.C.
charges,
since
of the
Board
In addition,
finding
decision,
of
National Labor
alternative
the charges
the first
The
six-month statute
160(b).
Counsel's
dismissed
We affirm
based on
The facts
General
improper
employer
dismissed.
by the
complaint as
an
effort
amendment
were
not
the
to
to a
"closely
but reverse
on the
latter.
I
I
_
BACKGROUND
BACKGROUND
__________
The
Union
represents
certain
Distributors, Inc.,
(the "Company"), a
operates
distribution
several
Massachusetts.
employees
of
Girardi
liquor distributor
facilities
in
the employees
that
northwestern
and the
Company
19, 1989.
In April of 1989,
the
the Union
filed its
not progress
first
-2-
well.
unfair labor
On May
19,
practice charge
(case 1-CA-26394),
of
the NLRA, 29
alleging violation of
U.S.C.
on July
complaint because,
sufficient
were
The General
19, 1989.
Office of
Addressing
of
bad
faith
bargaining.
the main
to bring a
Negotiations
Director's investigation.
charges
evidence
Regional Director
thrust
158(a)(1),
8(a)(1),
dismissed
As a
and
the Regional
Union
did
not
appeal
the
dismissal.
The Union
and
the negotiations
undercut the
wages and
In
offer," which
benefits received
by the
____________________
1
Section 8(a)(1) makes it an unfair labor practice for an
employer to "interfere, restrain or coerce employees" in the
exercise of their section 7 rights to engage in "concerted
activities for the purpose of collective bargaining or other
29 U.S.C.
157, 158(a)(1).
Section
8(a)(5) requires
that
an
employer
"bargain
collectively with the representatives of his employees" and to do
so in good faith.
See id.
158(a)(5);
NLRB v. Insurance
___ ___
____
_________
Agents' Int'l Union, 361 U.S. 477, 498 (1960).
___________________
-3-
August
4,
providing
claim.
1989,
more
alleging
the same
factual support
for
statutory
the
violations
bad faith
but
bargaining
several times) on
management, which
the same
Certain statements
under
8(a)(1),
the
end
of
1989,
despite
numerous
negotiation
sessions, the Union and the Company had not reached an agreement.
After the
purportedly subcontracted
the bargaining
unit work
Contract
("Suburban"),
terminated
Carriers,
employees,
exclusive
Inc.
and withdrew
its
recognition of
the
to Suburban
its
union
Union as
the
unit.
____________________
2
The Regional Director approved the unilateral informal
settlement on February 22, 1990. The Company complied with the
settlement's posting requirement. The case, however, was never
closed because of the pendency of a fourth set of charges (case
1-CA-27243) filed in April of 1990.
The Regional Director
vacated and set aside the settlement agreement when it issued the
Consolidated Complaint that sought to reinstate the three charges
dismissed in 1989.
The Union's second basis for avoiding the
statute of limitations pertains to this settlement agreement and
is discussed infra.
_____
-4-
On
charges
(case
April 16,
1990, the
1-CA-27243),
Union filed
alleging
the
a fourth
Company
set of
violated
unit
work.
Finally, the
a complaint and
the morning
new testimony
of
the hearing,
from the
principals of
Counsel
Suburban, David
the parties.
Based on
operations manager,
the testimony of
Murphy and
further investigated
the General
the Union's
another employee
March
of
1991,
the Regional
Director
issued
1989
Amended
(cases
1-CA-26394,
Complaint,
which
Consolidated Complaint
1-CA-26561,
amended
alleged that
1-CA-26660),
case
and
1-CA-27243.
an
The
engaged in
bad faith bargaining from April through September of 1989 and had
unlawfully implemented
its final
offer.
The
Amended Complaint
subcontractor
that
was
the
ego
of
the
work to a
Company
and
With
respect
Administrative
Law
to
the
Judge ("ALJ")
and ordered
from subcontracting
was
Consolidated Complaint,
bad
faith,
that
10(b)
than
the
the Company
had
desist
anew, to recognize
With
respect
had
not
been
to
the
General Counsel
had bargained in
reached,
Consolidated Complaint
and
that
Nevertheless,
because under
occurred.
the
the ALJ
the final
ALJ dismissed
the
impasse
Complaint,
cease and
implementation of
the
that
subcontractor
had stated a
found
the Company to
Amended
months after
the
acts underlying
those
charges had
The ALJ found that the General Counsel did not satisfy
fraudulent
concealment
exception
to
concealed, and
because the
the
statute
of
Union and
the General
for the
charges.
The
Board
affirmed and
adopted
the
Union appeals
The
the dismissal
dismissed
according
to
the
Union,
concealed
the
operative facts
charges
because
of
the Consolidated
warrant
the
supporting
reinstatement,
Company
the
fraudulently
charges through
affirmative
acts
of
concealment
and
by
"self-concealing"
Counsel exercised
-6-
Alternatively, the
asserts that
and (5)
"closely
the dismissed
related"
settlement
to
agreement
8(a)(3)
the
8(a)(1) charges
reached
set aside
in
case
allegations were
in
the
1-CA-26660.
by the Regional
Union
informal
As
the
Director, the
8(a)(1) charge.
II
II
__
Section
10(b)
statute of limitations
charges.3
of
the
NLRA
prescribes
of unfair labor
273 N.L.R.B.
six-month
practice
1389 (1985),
enforced without opinion, 785 F.2d 304 (4th Cir. 1986), the Board
________________________
extended
the breadth of
that the
limitations period
period.
is tolled when
The Board
also
"a respondent
The period
Id.
___
In
or should
"equitable
limitations."
doctrine
read
into
every
Holmberg v. Armbrecht,
________
_________
federal
statute
of
3
"[N]o 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 . . . ." 29 U.S.C.
160(b).
-7-
of
apply on
its
fill a
"gap" left
in
the statute
by fashioning its
to toll the
statute of
by applying
own rule of
limitations.
10(b)
to
fraudulent
Chevron USA,
____________
(1984).
"deference
as
its
interpretation
Board
has
been
accorded
is
rational
and
consistent
with
the
484 U.S.
District
the
statute."
23,
__
Traditionally
837,
of
dismissed
112, 123
Columbia
charges
underlying policy
to
of
(1987).
found
be
the
The Court
application
reasonable and
the statute
of Appeals
of
consistent
for the
10(b)
to
with
the
In the
fraudulent
concealment
tolling
doctrine in
the
10(b)
Chevron,
_______
843-44.
467 U.S.
formulation
of
at
its
We turn
interpretation
and
now
to
to
the
whether
Board's
it
is
permissible.
The Board's reluctance to
of
been
a matter of
NLRB
____
-8-
10(b) has
federal courts.
See
___
justify
adopting the
on
the
"unable to
affirmance").
In this
case,
general
explained
by
N.L.R.B.
1354
federal
an
fraudulent
earlier
(1988),
the
Court
Board's
the
Board,
purported to rely
concealment
Board decision,
and by
of the
doctrine
as
O'Neill, Ltd.,
______________
288
of
the
Appeals for
Nevertheless,
470 U.S.
adopted a
rule that is different from the one upon which it claims to rely.
In Hobson,
______
the Court of
Appeals for
the District
of
-- by
concealing"
affirmative
wrong or
scheme.
acts of
The
concealment
Hobson
______
or by
court held
"selfthat
defendant "engage[d]
in some misleading,
deceptive or
action."
and
that
inclusive understanding
"[t]he deception
complex as [a
only
of self-concealing
may be as
scheme], so
simple as
long as the
wrongs, stating
a single
lie or as
defendants conceal
'not
Id. at
___
on
Hobson and
______
its
belief
-9-
adopted
Hobson's
______
demonstrated
reasoning,
fraudulent
Union contends
concealment
and that
that
the
it
statute
has
of
bargaining
concessions.
in
the
session attempts to
force the
other side
to accept
477, 490-01
(1960);
is
not
(citation
in itself
omitted).
bargaining
case
refusal
Therefore,
(bargaining
issue,
the
misrepresenting
bargaining.
the
Board
positions
action, despite
committed
Company
has so
General
impaired its
Counsel with,
faith.")
"surface"
reach
an
Union perceives
the
Company
bargaining as
was
good faith
statements to
put forward
bargaining intent.
negotiating
In the Union's
the Union's
by
to
honestly
average
As the
or surface
the
is motive.
The self-concealing
that the
in
in good
the intent
deception
bad faith
bargain
without
to
due diligence,
continues as long
case that
it is unable
or the
General Counsel
by fraudulently
In
effect, the
as the concealment
to furnish
to the
cannot discover,
We
fully
Union's stance.
charges
understand
In this
alleging
the
rationale
essentially the
same
supporting
filed three
grievance
the
separate
-- that
the
Company was surface bargaining and its true intent was to destroy
the
Union.
These
charges were
dismissed
on
three separate
table
conduct,
the
evidence, revealed
evidence showed
first
and generally
no indications
of
exclusive
bad faith.
source
Indeed,
of
the
that various
claims that
evidence
of
that
intention.
The
Counsel
asserted,
General
because
The General
of surface bargaining.
facts, it
would
not have
brought
a complaint
given
the
the table
Regional
and
Director
designed to
deceive
the
position
defending
the Union
statements
against
and
-11-
the
submitted
to
charges, which
the General
Counsel,
the
were
were
sufficient
statue
of limitations
The cause
of action was
if the
self-concealing wrong
concealed because
the General
theory.
Counsel
appeared to be in
good faith.
Counsel's dismissal
cause of action
under the
of the
is concealed
conduct at
least superficially
Furthermore, because
the General
charges is unappealable,4
must be decided
whether a
according to
its
criteria.
ALJ
stated
that
the
Board
had
never
concealment
affirmative
verbal
Inc., 307
____
misrepresentation.
1992 WL 18679
found
fraudulent
Girardi Distributors,
______________________
at *38 n.24
(citing
Brown & Sharpe Mfg., 299 N.L.R.B. No. 89 (1990); Kanakis Co., 293
___________________
___________
N.L.R.B.
275
N.L.R.B.
1032
O'Neill, Ltd., which also quoted extensively from Hobson, did not
_____________
______
____________________
4
Procedurally, the charging party files a complaint with the
Regional Director and if the Regional Director decides to dismiss
the charge its decision may be appealed only to the General
Counsel, not to the Board or the courts.
Consequently, the
General Counsel's decision to dismiss is final. See United Food
___ ___________
& Commercial Workers Union, 484 U.S. at 118-19 & nn.8 & 10. We
___________________________
note the force of the Union's analogy to the rule that a party
who commits a "fraud on the court" should not expect the benefits
of repose bestowed by the statute of limitations.
See Hazel
___ _____
Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944).
_______________
___________________
-12-
turn
on
Hobson's expansive
______
concealing
wrong
sufficient
to toll
could
be
respect to the
of what
considered
fraudulent
the statute
definition
made
of limitations.
sort
of self-
concealment
The
ALJ read
(exculpatory
dismissed charges,"
statements
aside)
with
was a
self-
___
concealing scheme in place (as opposed to a single lie).
Distrib., 1992
________
N.L.R.B.
WL
18679
at 1355).
affirmative
at
Under
*29
(citing
O'Neill, Ltd.,
______________
this formulation,
misrepresentation other
than
Girardi
_______
there must
telling
the
288
be an
General
Counsel and the charging party that the accused is not engaged in
surface
bargaining
accused's
n.23.5
rather
and
conduct at
The
ALJ's
supplying
the
rational
excuses
bargaining table.
conception of
the
scheme
to require a
See id.
___ ___
for
at
the
*38
necessary seems
showing of "some
Id. at *29.
___
the more
relaxed
explained in Hobson,
______
standard of
self-concealing wrongs
dicta.
O'Neill,
________
____________________
5
Ltd.
____
that
we rely.6
short
It is impossible
of proof of a complicated
now urges
It is
clear, however, that the deception that the Board now requires is
significantly more than the
court
the extent
fraudulent concealment
party
doctrine
toll
737 F.2d at
the statute
35.7
will not
to conceal,
save a
of the effort
charging
is thus charged
Normally,
by fraudulent concealment
seeking to
alleges affirmative
The
party alleges
Morales
_______
v. Rosa-Viera,
__________
opposite rule
that the
____________________
815
F.2d 2,
applies, however,
statute is tolled
5 (1st
when the
by a
Cir.
charging
self-concealing
7
The party seeking the shelter of the
10(b) affirmative
defense bears the burden of proving "clear and unequivocal notice
-- either actual or constructive -- of the acts that constitute
the alleged unfair labor practice."
John Morrell & Co., 304
____________________
N.L.R.B. No. 116, 1991 WL 181868 at *5; Pennsylvania Energy
____________________
Corp., 274 N.L.R.B. 1153, 1155 (1985).
_____
-14-
Hobson, 737
______
F.2d
because the
at
defendants
35.
Thus,
"[w]hen
tolling is
proper
. . . they
have the burden of coming forward with any facts showing that the
plaintiff could have discovered .
had exercised
due diligence."
662
71
F.2d 65,
(D.C. Cir.
if he
In
another
significant
departure from
burden of
the
the Hobson
______
fraud
on
limitations.
the
party
here placed
of due diligence
seeking
to
toll
the
in discovering
the
statute
of
the Board's
decision turned
with
____
NLRB
____
v.
is
burden differently,
party seeking
1522,
in self-concealing scheme
decision
absence of
General Counsel.
at 35 (placing burden on
O'Neill, 965
_______
(placing burden
utter
on the
1527
and
therefore
1992)
statute of limitations
unreasonable
(9th Cir.
must
defer
to
it.
governing
the
of fact.
We
established
the
legal
tests
evidence on the
as a whole.
29 U.S.C.
488
(1951).
and
conclusions.
fraudulently
The
ALJ
found
that
conceal by affirmative
the
Company
case of
evidence
bad
faith or
surface
(3)
the
solicitation
provoke a
manager,
would
bargaining based
(1)
of
replacement
workers
strike; and
Ken White,
(5) the
indicating that
early
the
statements
of operations
better wages
and benefits
in
knew
on
bargaining process;
would
made a prima
not
did
The ALJ
the facts supporting the prima face case when the dismissed
that the
filed by
the Union.
dismissed charges
Finally, the
could not
ALJ
be reinstated
because the Union and the General Counsel had offered no evidence
that
they had
exercised due
diligence to
uncover
the alleged
____________________
8
The
record
evidence
showed
that
the
Union
membership
understood that the Company wanted to get rid of the Union. This
general animus began after
George Girardi, Jr. took over
management of the Company from his father.
As the Union notes,
everyone was aware of this animus after 1985, and, despite this
antipathy, the parties were able to reach an accord in 1986.
-16-
fraud.
Given the
narrow scope
doctrine
in the
10(b)
Board's
findings
of fact
substantial
stand.
evidence in
The strength
evidence
of
intent
of the
context, we
and
the
fraudulent concealment
cannot conclude
conclusions
record.
that the
are unsupported
Consequently, they
from statements
made
by
must
from the
by
former
the charges
swayed;
originally
were filed.
The Board
was
not
its calculus.
Clearly there is an
and
the
General Counsel
surface
bargaining.
finding
of notice,
constructive,
intent.
as
find sufficient
to
state a
claim of
on facts
opposed to
which
it holds
actual, evidence
constitute
of bad
faith or
case must be
made on
the basis
conduct."
of the
"totality of
Girardi Distrib. at
_________________
*29.
In
respondent's observable
contrast, the
General
unfair labor
practice
complaint,
irrespective
of
the
appeared
rejected the
to be
General Counsel's
court's statement
agreed
in good
of
faith.
The
ALJ specifically
suggestion to follow
fraudulent concealment,
the Hobson
______
stating, "[i]f
surface
bargaining case
strictures of
would
be potentially
incongruity
difficult position.
Counsel
to
file
timely
places
hand,
its timely
the
charging
party cannot
complaint
the
Id.
___
A charging
a
exempt from
if
it
a finding of
charges
that the
party
get the
only
in
General
possesses
bad faith.
General
On
Counsel
unappealably
Counsel
Board
dismissed will
later finds
not
be reinstated
direct evidence of
construes evidence
of
if the
bad motive
constructive intent
as notice of
General
because the
based on
the claim.
the
That
is
Columbia's
doctrine
construction
urged by
better and
more
bargaining, the
unless its
the Board's
of
the General
equitable
the
fraudulent
Counsel and
rule
for
the
interpretation is unreasonable.
judgment since the
the Union
victims
to be
of
surface
the terms of
10(b)
We
a less
concealment in surface
instead of
waiting
for the
concealment
bargaining cases.
smoking
under the
gun, the
Therefore,
General
Counsel
-18-
intent as understood by
practice
charges from
limitations.
Investigation
by the
10(b)
should include
unfair labor
statute of
interviewing senior
in good
union animus,
if
limitations.9
III
III
___
charges dismissed
workers
on statements
manager promising
made by the
improved wages
renounced
the
It alleged,
Company's operations
Union.10
All
The
the
if the
charges except
8(a)(1) charge
the
was the
Director.11
if the
provisions are
breached or
may be
subsequent unfair
9
The General Counsel stated before the Board that such
interviews would be fruitless because individuals do not admit to
unfair labor practice violations.
10
11 The Company
the infraction.
notice to remedy
-19-
N.L.R.B. 1544,
case 1-CA-26660.
agreement
and
The
therefore
asserted
"closely related"
not
that
the
Consolidated
to the then-resurrected
time-barred.12
The Union
Complaint
was
this
same
argument on appeal.
In
N.L.R.B. 927
296
N.L.R.B.
standard, the
at
928
(footnotes
omitted).
"closely related"
argument.
In addition, while
settlement
agreement could
be
set
aside
due to
the
charges
____________________
12
The six-month limitations period applies only "to the filing
and service of the charge, not to the issuance or amendment of
the complaint." NLRB v. Overnite Transp. Co., 938 F.2d 815, 820
____
____________________
(7th Cir. 1991); accord Sonicraft, Inc. v. NLRB, 905 F.2d 146,
______ ________________
____
148 (7th Cir. 1990), cert. denied, 111 S.Ct. 671 (1991).
A
_____________
complaint based on a timely filed charge may be amended to
include other allegations if they are "closely related" to the
underlying timely charge and occurred within six months of the
charge. See Eastern Maine Medical Center v. NLRB, 658 F.2d 1, 6
___ _____________________________
____
(1st Cir. 1981); see also NLRB v. Complas Indus., Inc., 714 F.2d
___ ____ ____
____________________
729, 734 (7th Cir. 1983).
-20-
it
be
reinstated.
rescinding
the
ALJ
favored
reinstatement
because
The
8(a)(5) charges.
Girardi Distrib.
________________
Company urges
that we
may not
consider the
"closely
related" theory
supporting reinstatement
of dismissed
charges.
See
___
29 U.S.C.
Union has
to do
so
(1979).
the
NLRB,
____
8(a)(1) charges
has
dismissed
is true
to the
before
General
reinstatement of
the Board.14
strenuously, however,
charges were not
that the
The
to the ALJ's
Counsel did
the set
not object
aside settlement
General Counsel
objected
8(a)(5)
8(a)(1) charges.
We
____________________
13
in the
think that
the exception
recommendation
to
reinstate
sufficient particularity
timely raised.
taken
By
on this
the
ground challenged
set
aside
agreement
for reinstatement.
with
the
the "closely
therefore
consider
Complaint were
While
closely
whether
the
charges
related to
that none of
in
the
the
8(a)(1)
the elements of
the
defense"
components
theories
behind
illustrating the
of
each
the
charge
In
detailed
were "far
that
the
different,"
legal
but
only
that would be
defense to
been made.
defense to
explanations
throughout the
asserting
test,
of
the
8(a)(5) charge
each
negotiations and
step
taken
by
would involve
the
disintegration of the
Company
parties'
relationship.
the two
of charges
intent."
sets
was
"their bearing
on
the issue
of
With respect
sequence
of
to
the "same
events" element
factual
of the
test,
circumstances
the ALJ
or
imposed an
-22-
extremely
proof
high burden
that
the
regarding
Company specifically
of
events.
"simply isolated
all
the
Without
operations
He
of the same
concluded
that
statements reflecting
factual situation or
the
statements were
of
Id. at *32.
___
think that
the ALJ's
the
clear that
statutory
factual conclusions
are not
related
directed
nexus.
sequence
the required
the
section.
test.
With
respect to
the
allegations
need
not
be
under
the
same
Overnite Transp. Co., 938 F.2d 815, 821 n.8 (7th Cir.
1991).
It
____________________
is sufficient
crusade
same effort or
F.2d at 821; Texas World Service Co. v. NLRB, 928 F.2d 1426, 1437
_______________________
____
(5th
Cir. 1991).
In
8(a)(1) statements
this case,
were probative
the
charges
conceded that
of the Company's
under
involved
8(a)(5).
the
same
It
the
intent when
the ALJ
the bad
would seem
legal
theory,
then
broadly
speaking.
We
do
not
understand
the
ALJ's
finding
that
the
-23-
statements
by White
were
facts already
known to
evidence
not
did
contingency plans.
related
establish
test,
that
just
isolated statements
the Union.
support
finding
As
a
confirming
we stated earlier,
detailed
"scheme"
the
with
however, does
sort of
not
demand
a conspiracy.
that General
Charges will
Counsel
be found
same "sequence
of events."
bargaining
unit members
and
the wage
nonunion
difference
the
"acting
they decertified."
inconsistency in
the
union
about
between
they
Company's
complained
statements, it is clear
White,
employees,
Thus,
despite the
characterization of the
impetus for
directed White to
8(a)(1).
The ALJ
would
even if the
existed.
accomplished.
by which the
Consequently,
we
a finding
Union's ouster
think
the
facts
fact that
the defenses
to the
8(a)(5) charges
ALJ found, is
not fatal to
a finding that
-24-
closely
related.
Taken as
a whole,
the closely
specificity to
the test is
which involve
the inquiry.
but another
Company would
Each component of
The "same
way to ferret
extraneous material.
related test
defense"
out amendments
In defending against
attempt to
show that
the
White's
statements were not part of its effort to decertify the Union and
that
its efforts
bargaining.
The
to
bust the
overlap
Union
between
defenses
is readily apparent.
"closely
related"
test and
did not
the
include
subject matter
surface
of
the
of
the charges
in the
bar.
affirm the
______
We reverse
_______
Board's holding
the
with respect to
reinstatement
of
the set
the
aside
having
found those
charges
closely
related to
the
-25-