Ross Stores v. Nat'l Labor Relations Bd.

• Decision Date: 12 January 2001
• Docket Number: No. 99-1453,99-1453
• Citation: 235 F.3d 669
• Parties: (D.C. Cir. 2001) Ross Stores, Inc., Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 669

235 F.3d 669 (D.C. Cir. 2001)

Ross Stores, Inc., Petitioner v. National Labor Relations Board, Respondent

No. 99-1453

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2000

Decided January 12, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Joseph G. Ferguson argued the cause for the petitioner. James P. Valentine and Elizabeth C. Leo were on brief.

Jill A. Griffin, Attorney, National Labor Relations Board, argued the cause for the respondent. Leonard R. Page, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Attorney, National Labor Relations Board, were on brief.

James B. Coppess and Jonathan P. Hiatt were on brief for amicus curiae American Federation of Labor and Congress of Industrial Organizations

Before: Henderson, Randolph and Garland, Circuit Judges.

Opinion for the court by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Randolph.

Opinion concurring in part and dissenting in part filed by Circuit Judge Garland.

Karen LeCraft Henderson, Circuit Judge:

Ross Stores, Inc. (Ross) petitions for review of a decision and order of the National Labor Relations Board (Board, NLRB) finding that Ross violated section 8(a)(1) and (3) of the National Labor Relations Act (Act) when (1) it discharged an employee on account of his union support and (2) its supervisor informed the same employee that no soliciting was allowed on company premises. We uphold the Board's finding as to the discharge because it is supported by substantial evidence and set aside its finding regarding the solicitation admonition because it is time-barred under section 10(b) of the Act, 29 U.S.C. § 160(b), which requires that an unfair labor practice allegation be made within 6 months of its occurrence.

I.

In May 1993 a group of employees at Ross's non-union distribution center in Carlisle, Pennsylvania began organizing efforts on behalf of the International Ladies Garment Workers Union, Local 170, AFL-CIO (Union). On June 1, 1993 the Union wrote to David Morrison, a Ross vice president in charge of the Carlisle facility, formally advising him of the organization activity and identifying 15 involved employees, including David Jumper and Jumper's fiancee, Kathy Curtis. Three incidents during the organizing campaign were alleged below to constitute unfair labor practices by Ross.

First, at an assembly in late May 1993 Morrison told the gathered employees "they did not need a union" and " 'he would do anything in his power to keep the union out of the building.' " App. 670.

Second, in late May or early June 1993 supervisor Michael Simondi observed Jumper and a coworker exit the men's restroom together and, when he entered the restroom, discovered they had posted union literature inside. He removed the postings and later admonished each of them separately that " 'there was no solicitation on these premises.' " App. 670.

The third incident was Jumper's discharge. On August 12, 1993 Jumper, who had a history of tardiness and absenteeism, asked his supervisor if he could change his upcoming August 16 personal birthday vacation day to August 12 so that he could accompany Curtis to the hospital to be treated for an injury she had suffered the previous day. Jumper's supervisor responded that he lacked authority to approve the switch and referred Jumper up the chain of command. Two higherups similarly disclaimed approval authority and Jumper was finally referred to human resource specialist Paula Hoch. Jumper met with Hoch at about 8:15 the same morning and explained his situation. She told him the vacation day had to be scheduled in advance and, when he said he was leaving anyway, warned him he would then incur additional absentee "points." Jumper then left. When he arrived at work the next day, August 13, he was greeted by Morrison and Hoch. Morrison told Jumper he was being discharged in accord with Ross's absence policy because he had exceeded the permissible number of absentee points, which he had.

The day he was fired, August 13, 1993, Jumper filed a handwritten charge with the NLRB expressing his belief that he had been "terminated from Ross Inc. due to union involvement." App. 1. On March 4, 1994 Jumper filed a second, typewritten charge alleging three separate unfair labor practices: Simondi's no-solicitation admonition, Morrison's comments to the employees and the discharge. On March 18, 1994 the Board's General Counsel issued a complaint alleging the same three unfair labor practices.

After a two-day hearing in February 1994 the Administrative Law Judge (ALJ) issued a decision dated April 5, 1995 finding each of the three charges proven. In the decision the ALJ denied Ross's motion to dismiss the first two charges as time-barred under section 10(b) of the Act.

In a decision and order issued September 30, 1999 a divided Board affirmed the ALJ's denial of Ross's motion to dismiss and the findings that Simondi's no-solicitation admonition and Jumper's discharge violated, respectively, section 8(a)(1) and section 8(a)(3) of the Act.¹ The Board rejected the ALJ's finding that Morrison's speech violated section 8(a)(1) because the majority found it not threatening.²

Ross petitioned for review and the Board cross-applied for enforcement.

II.

We address Ross's challenge to each of the two unfair labor practice findings separately.

A.

First we consider the Board's finding that Simondi violated section 8(a)(1) of the Act when he instructed Jumper and a coworker that "no solicitation" was allowed on Ross's premises. Section 10(b) of the Act provides in relevant part:

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.

29 U.S.C. § 160(b) (emphasis added). No one disputes that the no-solicitation allegation in the complaint is time-barred under a literal application of this provision because Jumper's February 23, 1994 typewritten charge containing the allegation was filed more than six months after Simondi's admonition which took place in late May 1993. The Board concluded, however, that the incident was timely charged because it was closely related to Jumper's termination which was timely charged on August 13, 1993. We disagree.

The NLRB has long construed section 10(b), with judicial approval, to permit prosecution of an alleged violation that was not timely charged if it is "closely related" to the allegations in a timely filed charge. To determine whether timely and untimely allegations are "closely related," the Board has developed a tripartite test:

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.

Nickels Bakery of Indiana, Inc., 296 N.L.R.B. 927, 928 (1989) (citing Redd-I, Inc., 290 N.L.R.B. 1115, 1116 (1988)). Here the Board found the separate allegations are closely related based on (1) the "common legal theory" of "animus in opposition to the Union's organizational campaign"; (2) the "similar factual circumstances" that each incident "arose in the context of a single organizational campaign and was part of the Respondent's overall efforts to resist that campaign"; and (3) the "common defenses" that Ross "did not seek to unlawfully restrict Jumper's union activity by the manager's placing restrictions on Jumper's solicitation activities or by Jumper's subsequent discharge." NLRB Dec. at 2-3. We hold that the Board's finding of a factual nexus under the second prong of the test is inadequate as we held regarding similar findings in both Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017 (D.C. Cir. 1995), and G.W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C. Cir. 1988).³

In Drug Plastics the Board's General Counsel filed a complaint alleging a timely charged retaliatory discharge and a series of uncharged anti-union acts in the months surrounding the discharge. The Board found the uncharged complaint allegations closely related to the charged termination allegation "because it found that the allegations 'arose out of the Respondent's overall plan to resist the Union ...; that all the allegations occurred after the respondent's acknowledged awareness of the organizing effort ...; that several of the allegations involved statements to [the discharged employee] ...; and that the 8(a)(1) allegations generally occurred during the same time period as the 8(a)(3) allegation.' " Drug Plastics, 44 F.3d at 1021. The Drug Plastics court concluded the Board's reasoning conflicted with the Board's own decision in Nippondenso Mfg. U.S.A., 299 N.L.R.B. 545 (1990), which held that allegations were not "closely related" simply...