District Lodge 64, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO v. N.L.R.B.

• Decision Date: 29 November 1991
• Docket Number: AFL-CIO,No. 90-1503,90-1503
• Citation: 949 F.2d 441
• Parties: 138 L.R.R.M. (BNA) 2928, 292 U.S.App.D.C. 266, 60 USLW 2380, 120 Lab.Cas. P 11,013 DISTRICT LODGE 64, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,, and its Local Lodges 883, 1088, and 1142, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brown & Sharpe Manufacturing Co., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 441

949 F.2d 441

138 L.R.R.M. (BNA) 2928, 292 U.S.App.D.C.

266, 60 USLW 2380,

120 Lab.Cas. P 11,013

DISTRICT LODGE 64, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, and its Local Lodges 883, 1088, and 1142, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent Brown & Sharpe Manufacturing Co., Intervenor.

No. 90-1503.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 12, 1991.

Decided Nov. 29, 1991.

Petition for Review of an Order of the National Labor relations board.

Marc B. Gursky, with whom Allison Beck and Mark Schneider were on the brief, for petitioner.

Fred L. Cornnell, Jr., Attorney, N.L.R.B., with whom Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel and Peter Winkler, Supervisory Atty., N.L.R.B., were on the brief, for respondent. Judith A. Dowd, Attorney, N.L.R.B., also entered an appearance for respondent.

William R. Powers, III, with whom Thomas C. Keeney was on the brief, for intervenor.

Before: RUTH B. GINSBURG, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Section 10(b) of the National Labor Relations Act specifies a six-month statute of limitations for unfair labor practice charges. It requires parties to file a charge with the National Labor Relations Board and to serve the charged party within six months of the alleged unfair labor practice:

[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). In Ducane Heating Corp., 273 NLRB 1389 (1985), enforced without opinion, 785 F.2d 304 (4th Cir.1986), however, the Board adopted an additional time restriction in reliance on the policy underlying § 10(b), holding that if a charge is filed within the § 10(b) period but then dismissed, it may not be reinstated (by the Board's General Counsel) outside the § 10(b) period "absent special circumstances in which a respondent fraudulently conceals the operative facts underlying the alleged violation." 273 NLRB at 1390. The union attacks both the Ducane rule and its application here.

* * * * * *

The union represents about 1600 workers at the Kingston, R.I., plant of Brown & Sharpe Manufacturing Company, a maker of machine tools. Its unfair labor practice charges arise out of a prolonged course of negotiations preceding a strike that began on October 18, 1981. The parties had failed to reach agreement on two key issues: the prevailing noncontractual practice of "job preference" or "machine seniority", under which employees could exercise their seniority to obtain an assignment to a specific job or machine in their group; and "mandatory transfers", a provision in the collective bargaining agreement that prohibited the company from transferring employees without their permission.

The union filed two sets of timely unfair labor practice charges, one on November 5, 1981 and another on March 18, 1982, alleging that Brown & Sharpe had failed to bargain in good faith in violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (5). In each case, the General Counsel dismissed the charges, initially through his Regional Director and then on appeal through his national Office of Appeals. On June 30, 1982, after the final dismissal of both charges, the union learned that David Waterman, the former Director of Industrial Relations at Brown & Sharpe, had sued the company for wrongful discharge, claiming that he had been fired for refusing to commit unfair labor practices. Relying mainly on Waterman's allegations, the union filed a third charge on September 29, 1982, alleging that the company had fired Waterman for refusing to "carry out a bargaining position designed to preclude reaching agreement", J.A. 14, thus asserting a theory of "surface bargaining". After various procedural ups and downs, the General Counsel's Regional Director pursued the Waterman leads and secured copies of company committee minutes and position papers on bargaining strategy. Relying on these discoveries, the Board's General Counsel reinstated the earlier charges and issued a complaint on December 7, 1983.

When hearings began in 1984, Brown & Sharpe moved to dismiss the portion of the complaint containing the reinstated charges on the ground that the General Counsel had dismissed those charges and had not reinstated them until after expiration of § 10(b)'s six-month period. The ALJ reserved decision on the motion, and, while the company's special appeal from that order was pending, the Board issued its Ducane decision. Two weeks later the Board remanded the case to the ALJ for reconsideration in the light of Ducane. In April 1986 the ALJ found that Ducane required dismissal because the reinstatement occurred long after the running of § 10(b)'s six months. He also found that there was no evidence of fraudulent concealment. The ALJ conducted a hearing on some remaining charges in the complaint, but dismissed them on the merits in April 1989.

The Board affirmed, but did not rest on the ALJ's finding that there had been no fraudulent concealment. Instead, it found that the allegedly concealed evidence did not constitute "operative facts" because "even viewing the evidence in a light most favorable to the General Counsel's position, it does not support a finding that the Respondent advanced proposals as genuine absolutes when it actually did not consider the proposals to be important to its operations." J.A. at 153.

The union challenges the validity of Ducane itself, the Board's retroactive application of the doctrine, and the Board's explanation of its application here. We hold that Ducane is a reasonable implementation of the policy behind § 10(b) and that the Board was free to apply it retroactively. We remand the case to the Board, however, to explain its application of the fraudulent concealment exception.

* * * * * *

Although the union frames its attack on Ducane obscurely, it appears to contend that the doctrine is outside the scope of the Board's authority under § 10(b). By its terms that section only bars complaints based on claims that the charging party filed beyond the six-month period; once that limit is observed, as it was here, § 10(b) says nothing to limit the General Counsel 's authority to issue a complaint. While conceding that § 10(b) would not prohibit the Board from adopting a laches policy, the union nonetheless suggests that § 10(b) prevents the Board from adopting a fixed six-month limitation on the reinstatement of dismissed charges. Petitioner's Brief at 25 & n. 7.

The statute's silence, however, clearly means that Congress has not "directly spoken to the precise question at issue", Chevron USA Inc. v. NRDC, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), so that the Board is free to adopt any reasonable construction of the Act, id. at 842-43, 104 S.Ct. at 2781-82. See also NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123, 108 S.Ct. 413, 420, 98 L.Ed.2d 429 (1987); Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1264 n. 2 (D.C.Cir.1991) (construing § 10(b)). Thus, our observation in Mourning v. NLRB, 505 F.2d 421 (D.C.Cir.1974), that " § 10(b) puts a statute of limitations on the actions of the charging party (six months) and not on the General Counsel", id. at 424 n. 10 (emphasis in original), merely restates the point that § 10(b) does not address delay by the General Counsel, much less his dismissal and reinstatement of a charge. Indeed, in Mourning we specifically suggested that the Board was free to adopt a laches policy but said that we would not assume it had done so without a clearer statement from the Board. Id. at 424.

The union also relies on § 3(d) of the Act, 29 U.S.C. § 153(d), which states that the General Counsel "shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under [§ 10], and in respect of the prosecution of such complaints before the Board". But § 3(d) says nothing about the Board's authority to dismiss a reinstated complaint as time-barred. The purpose of § 3(d) was to separate the Board's prosecutorial and adjudicative functions. See generally NLRB v. United Food & Commercial Workers Union, 484 U.S. at 117-18, 124-25, 108 S.Ct. at 417-18, 421-22 (discussing legislative history and contemporaneous agency interpretation). The Ducane rule interferes with the General Counsel's prosecutorial independence in substantially the same (permissible) way as does a substantive ruling of the Board as to what constitutes an unfair labor practice; it interferes a good deal less than do the Board's regulations dictating the procedures the General Counsel must follow in the investigation, withdrawal, dismissal, and settlement of charges and the issuance of complaints. See 29 CFR §§ 101.4-101.8. Furthermore, the union's extravagant reading of § 3(d) would bar the Board from adopting a laches policy, which the union itself concedes is permissible.

Thus neither § 10(b) nor any other provision of the Act addresses the issue of time limits on revival of a dismissed charge. Under Chevron the Board may fill this "gap" in the statutory scheme pursuant to its authority to implement that scheme. See 467 U.S. at 843-44, 104 S.Ct. at 2781-82. It may do so either by rulemaking under § 6 of the Act, 29 U.S.C. § 156, see 29 CFR §§ 101.1-101.43, or--as in Ducane--by adjudication, see, e.g., Redd-I Inc., 290 NLRB No. 140 (1988) (reaffirming that amendments "closely related" to original charge relate back to date of original complaint), approved in Sonicraft, Inc. v. NLRB, 905 F.2d 146, 148-49 (7th Cir.1990); Forrest Industries, Inc., 168 NLRB 732 (1967) (limiting charging parties to one motion for...