Sonicraft, Inc. v. N.L.R.B., s. 89-2458
| Decision Date | 12 June 1990 |
| Docket Number | Nos. 89-2458,89-2694,s. 89-2458 |
| Citation | 905 F.2d 146 |
| Parties | 134 L.R.R.M. (BNA) 2551, 115 Lab.Cas. P 10,126 SONICRAFT, INCORPORATED, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Warehouse, Mail Order, Office, Technical & Professional Employees Union Local 743, International Brotherhood of Teamsters, Intervening Respondent, and Intervening-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerard C. Semetena, Abramson & Fox, Garland W. Watt, Stephen X. Lythcott, Kathleen Lightfoot, Chicago, Ill., for petitioner.
Aileen A. Armstrong, John C. Truesdale, Julie Broido, Linda J. Dreeben, Appellate Court, Enforcement Litigation, N.L.R.B., Washington, D.C., Elizabeth Kenney, N.L.R.B., Chicago, Ill., for respondent.
Joel A. D'Alba, Marvin Gittler, Asher, Gittler & Greenfield, Chicago, Ill., for intervenor, Warehouse, Mail Order, Office, Technical and Professional Employees Union Local 743, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Margo R. Newman, Asher, Gittler & Greenfield, Chicago, Ill., for Sonicraft, Inc., Cross-Respondent.
Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. *
The Labor Board asks us to enforce, and the Sonicraft corporation asks us to set aside, an order by the Board (295 N.L.R.B. No. 67 (June 15, 1989)) finding that Sonicraft had violated the National Labor Relations Act by threatening economic retaliation against its workers during a representation election campaign and by carrying out the threat after the union (despite the company's threats) won the election. The retaliation operated as follows. The company laid off 50 of the 92 employees in the bargaining unit just two days after the election, and quickly began recalling all but those employees who had been vocal supporters of the union--the latter being placed on a "no-no list" and either never recalled or recalled later than they would have been but for their support of the union.
The principal issue is the statute of limitations. The Act provides, in section 10(b), that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge." 29 U.S.C. Sec. 160(b). The election campaign, the election, and the layoffs took place in 1981. Early in 1982, within the six months permitted by the statute, the union filed with the Board a charge encompassing all the allegations later included in the complaint issued by the Board's General Counsel. On April 29, the Regional Director (a subordinate of the General Counsel) dismissed the charge insofar as it alleged that the layoff had been unlawful and issued a complaint limited to pre-election intimidation and to the sequence in which certain employees had been recalled after the layoffs that followed the election. The union appealed the dismissal of the layoff portion of the charge to the General Counsel, the final authority for the issuance of complaints by the Board, but without success. However, additional evidence coming to light, on December 1 the General Counsel moved the administrative law judge presiding over the case for permission to file an amended complaint restoring the allegations about the layoff, and after an appeal to the Board the amendment was allowed and the amended complaint was issued on January 20, 1983. The General Counsel's motion had come almost a year after the layoff had taken place and more than six months after the selective recalls: too late, according to Sonicraft. The Board disagreed, ruling in the decision under review that because the restored allegations were closely related to the allegations that had been retained, section 10(b) did not bar the amendment.
In addition to establishing a period of limitations, section 10(b) authorizes the Board to amend a complaint at any time before entering its final order. There is nothing here or elsewhere in the Board's statutes or rules about relation back; but the usual rule, codified for example in Rule 15(c) of the Federal Rules of Civil Procedure, is that, for purposes of determining whether the statute of limitations has run, an amendment to a complaint relates back to the original complaint if it arises out of the dispute that gave rise to the original complaint. Displaying its usual preference for common law over express rulemaking, the Board has long had a doctrine, parallel to that of Rule 15(c), that an amendment which is "closely related" to the original charge relates back to the date of the original complaint. NLRB v. Complas Industries, Inc., 714 F.2d 729, 732-33 (7th Cir.1983) (per curiam); NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2nd Cir.1952). The allegations in this case concerning the layoffs are closely related to the allegations of discriminatory recall; the recalls began only four days after the layoffs, and the layoffs and the recalls were the one-two punch in the company's scheme of retaliation. The company points out, however, that in Ducane Heating Corp., 273 N.L.R.B. 1389, 1391 (1985), enforced without opinion, 785 F.2d 304 (4th Cir.1986), a three-member panel of the Board ruled that a dismissed or withdrawn charge "ceases to exist" and therefore cannot be revived outside the six-month limitations period unless the respondent is guilty of fraudulent concealment; the Board, however, declined in this case to rule that Sonicraft had been guilty of that. One of the panel members in Ducane found it unnecessary to decide whether the reinstatement of one of the dismissed charges might be supportable under the "closely related" doctrine, id. at 1391 n. 9; the other two members did not mention the issue.
If Ducane stood alone, we would have the unfortunate, and unfortunately not uncommon, situation in which the Board limits or even repudiates a precedent in silence. For in deciding that the layoff charges were not time-barred in this case, the Board did not attempt to distinguish Ducane. And although one member of the panel in Ducane had thought it unnecessary to decide whether the closely-related doctrine might permit the General Counsel to reinstate a dismissed charge, the majority opinion (which is to say all but note 9) did not respond to the suggestion and could be thought, by the sweeping language it employed, to have confined the closely-related doctrine to cases in which the belated amendment adds an allegation not previously dismissed or withdrawn.
But Ducane does not stand alone. In Redd-I Inc., 290 N.L.R.B. No. 140, 129 L.R.R.M. 1229, 1231 (1988), the Board limited Ducane to "an attempt to reinstate the dead allegations themselves without reference to any other pending timely charge." Sonicraft argues that this is not a reasoned distinction, because dead is dead; and it adds that Redd-I involved withdrawn rather than, as in both this case and Ducane, dismissed allegations. Our view is different. Apart from footnote 9, Ducane makes no reference to the closely-related doctrine; and an administrative agency, unlike a court, is not permitted to overrule its doctrines in silence--it must explain itself. Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 48, 57, 103 S.Ct. 2856, 2869 2874, 77 L.Ed.2d 443 (1983); Wilkins v. Sullivan, 889 F.2d 135, 141 (7th Cir.1989); International Union, UAW v. NLRB, 802 F.2d 969, 974 (7th Cir.1986); Local 1384, UAW v. NLRB, 756 F.2d 482, 492 (7th Cir.1985); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1093-94 (7th Cir.1984); Lynch v. Dawson, 820 F.2d 1014, 1021 (9th Cir.1987). (This of course is the heart of Sonicraft's argument.) The presumption is therefore that the closely-related doctrine survived Ducane, and Redd-I makes this explicit. The distinction between related and unrelated allegations makes perfectly good sense and does not violate the...
To continue reading
Request your trial
-
Griffin v. Jtsi, Inc.
...burden of negating causation'" once the employee makes an initial showing of a causal connection. Id. (quoting Sonicraft, Inc. v. N.L.R.B., 905 F.2d 146, 150 (7th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 664 (1991)); see also Hse. Stand. Com. Rep. No. 25, in 1987 H......
-
Chicago Tribune Co. v. N.L.R.B., AFL-CI
..."bears the burden of persuasion, but so far as the main case is concerned the burden of persuasion never shifts." Sonicraft, Inc. v. NLRB, 905 F.2d 146, 150 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 671, 112 L.Ed.2d 664 (1991). Without so holding, it appears the Tribune has bor......
-
Central Transport, Inc. v. N.L.R.B.
...(1980), enf'd, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982)); Sonicraft, Inc. v. NLRB, 905 F.2d 146, 150 (7th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 664 (1991). Motive "is a critical factor to be determined as a q......
-
Grant v. Marriott Ownership Resorts, Inc.
...however, that an aggrieved employee always retains the ultimate burden of proof in a retaliatory discharge case. Sonicraft, Inc. v. NLRB, 905 F.2d 146, 150 (7th Cir. 1990), cert. denied, 498 U.S. 1024, 111 S. Ct. 671, 112 L. Ed. 2d 664 (1991). The legislature must have been referring to the......