
USCA1 Opinion

	




          July 27, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-1993                    TRUCK DRIVERS & HELPERS UNION, LOCAL NO. 170,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                             GIRARDI DISTRIBUTORS, INC.,                                     Intervenor.                                 ____________________                                     ERRATA SHEET               The opinion of this Court issued on May 26, 1993, is amended          as follows:               Page 5, line 21, capitalize "u" in "union".               Page 5, line 23, capitalize "u" in "union".               Page 12, line 8, substitute "183679" for "18679".               Page 19, footnote 12, line 5, substitute "111 S.Ct. 671" for          "xx U.S. xx".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1993                    TRUCK DRIVERS & HELPERS UNION, LOCAL NO. 170,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                             GIRARDI DISTRIBUTORS, INC.,                                     Intervenor.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                              Torruella, Cyr and Stahl,                                    Circuit Judges.                                   ______________                                _____________________               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,  Circuit Judge.   In this  case we  review a                                _____________          decision and  order of  the National  Labor Relations  Board (the          "Board").  The  General Counsel  of the Board  brought an  unfair          labor  practice  complaint against  an  employer  based on  three          charges that it had previously  dismissed.  The facts  underlying          these charges occurred more  than six months prior to  the filing          of  the formal  complaint  by the  General  Counsel.   The  Board          dismissed the  complaint as  barred by the  six-month statute  of          limitations  prescribed by  section 10(b)  of the  National Labor          Relations Act ("NLRA"),  29 U.S.C.    160(b).   In addition,  the          Board  rejected  the  General  Counsel's  alternative  effort  to          resuscitate  these  dismissed  charges,  finding  amendment  to a          timely  charge  improper  since  the charges  were  not  "closely          related."    We affirm  the first  decision,  but reverse  on the          latter.                                          I                                          I                                          _                                      BACKGROUND                                      BACKGROUND                                      __________                    The  Union  represents  certain  employees  of  Girardi          Distributors, Inc.,  (the "Company"), a  liquor distributor  that          operates   several   distribution   facilities  in   northwestern          Massachusetts.   Over the years,  the employees  and the  Company          entered into collective bargaining agreements, the most recent of          which covered from 1986 to May  19, 1989.  In April of 1989,  the          Union and the Company began negotiations for a new agreement.                      The negotiations did  not progress  well.   On May  19,          1989,  the Union  filed its  first  unfair labor  practice charge                                         -2-          (case 1-CA-26394),  alleging violation of    8(a)(1),  (3), & (5)          of  the NLRA, 29  U.S.C.   158(a)(1),  (3), & (5).1   The General          Counsel of the Board  dismissed the charge through the  Office of          the  Regional Director  on July  19, 1989.   Addressing  the main          thrust  of the charge, the  Regional Director refused  to bring a          complaint because,  in its view, the investigation did not reveal          sufficient  evidence  of  bad  faith  bargaining.    Negotiations          between the Company  and the Union continued during  the Regional          Director's investigation.  As a  result of the investigation, the          charges  were  dismissed  and  the  Union  did  not  appeal   the          dismissal.                    The Union  remained dissatisfied with  the negotiations          and  felt certain that the Company sought  to bust the Union.  In          June, the Company made  its "last, best, and final  offer," which          significantly  undercut the  wages and  benefits received  by the          members of the bargaining unit under the 1986-89 labor agreement.          Despite  the final offer the parties continued to hold bargaining          sessions.  The Union filed its second charge (case 1-CA-26561) on                                        ____________________          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          mutual aid or protection."  29 U.S.C.    157, 158(a)(1).              Section  8(a)(3) makes  it an  unfair labor  practice for  an          employer  "to encourage  or  discourage membership  in any  labor          organization" by  "discrimination in  regard to hire  or tenure."          Id.   158(a)(3).          ___                         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,  1989,  alleging  the same  statutory  violations  but          providing  more  factual support  for  the  bad faith  bargaining          claim.  The Regional Director again dismissed the charges and the          General Counsel's National Office of Appeal upheld the dismissal.                    On September 8, 1989, the Union filed  its third charge          (case 1-CA-26660,  which was amended  several times) on  the same          general grounds with further factual support.  Certain statements          made by  management, which  were held improper  under    8(a)(1),          were the subject of an  informal settlement agreement,2 while the          other charges were dismissed.   The Union unsuccessfully appealed          the dismissal of the other charges.                    By  the  end  of  1989,  despite  numerous  negotiation          sessions, the Union and the Company had not reached an agreement.          After the  Union lost its appeal on the third set of charges, the          Company withdrew its final offer.  On April 14, 1990, the Company          purportedly subcontracted  the bargaining  unit work  to Suburban          Contract  Carriers,  Inc.  ("Suburban"),  terminated   its  union          employees,  and withdrew  its  recognition of  the  Union as  the          exclusive  collective bargaining representative of the bargaining          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  April 16,  1990, the  Union filed  a fourth  set of          charges  (case  1-CA-27243),  alleging  the  Company  violated             8(a)(1) & (5) by refusing to supply the name of the subcontractor          to the  Union, and by unilaterally  subcontracting the bargaining          unit  work.  Finally, the  General Counsel filed  a complaint and          set the hearing date for November 19, 1990.                    On  the morning  of  the hearing,  the General  Counsel          received  new testimony  from the  principals of  Suburban, David          Murphy and Peter DeVito.  The proceedings were adjourned with the          consent of  the parties.   Based on  the testimony of  Murphy and          DeVito,  the Regional Director  further investigated  the Union's          charges and procured testimony  from Kenneth White, the Company's          former  operations manager,  and Daniel Maroni,  another employee          close to management, which was damaging to the Company.                    In  March  of  1991,  the Regional  Director  issued  a          Consolidated Complaint, which revived the three charges dismissed          in  1989  (cases  1-CA-26394,  1-CA-26561,  1-CA-26660),  and  an          Amended  Complaint,   which   amended  case   1-CA-27243.     The          Consolidated Complaint  alleged that  the Company had  engaged in          bad faith bargaining from April through September of 1989 and had          unlawfully implemented  its final  offer.  The  Amended Complaint          charged that failure to provide the name of the subcontractor and          withdrawal of recognition of  the Union violated sections 8(a)(1)          &  (5), and that subcontracting  the bargaining unit's  work to a          subcontractor  that  was  the  alter  ego   of  the  Company  and          discharging the Union employees violated sections 8(a)(1) & (3).                                         -5-                    With    respect   to   the   Amended   Complaint,   the          Administrative  Law  Judge ("ALJ")  found  that  the Company  had          violated the NLRA  and ordered  the Company to  cease and  desist          from subcontracting  the bargaining unit work  anew, to recognize          the Union, and to restore the  status quo in existence before the          false   subcontractor  was   engaged.     With  respect   to  the          Consolidated Complaint,  the ALJ  found that the  General Counsel          had stated a  prima facie case that the Company  had bargained in          bad  faith,  that   impasse  had  not  been   reached,  and  that          implementation of  the final  offer was unlawful.   Nevertheless,          the  ALJ dismissed  the  Consolidated Complaint  because under             10(b)  the charges dismissed in 1989 could not be reinstated more          than  six  months after  the  acts underlying  those  charges had          occurred.  The ALJ found that the General Counsel did not satisfy          the   fraudulent  concealment   exception  to   the  statute   of          limitations because it failed to demonstrate  that facts had been          fraudulently  concealed, and  because the  Union and  the General          Counsel did not exercise due diligence in discovering the factual          basis  for the  charges.   The  Board  affirmed and  adopted  the          decision and order of the ALJ.                    The  Union appeals  the dismissal  of  the Consolidated          Complaint.     The   dismissed  charges   warrant  reinstatement,          according  to   the  Union,  because  the   Company  fraudulently          concealed  the  operative facts  supporting  the  charges through          affirmative  acts  of  concealment  and  by  a  "self-concealing"          scheme, and because  the Union and the General  Counsel exercised                                         -6-          due diligence to uncover the evidence.  Alternatively, the  Union          asserts that  the dismissed    8(a)(3)  and (5)  allegations were          "closely  related"  to  the    8(a)(1) charges  in  the  informal          settlement  agreement  reached  in   case  1-CA-26660.    As  the          agreement was later  set aside  by the Regional  Director, the             8(a)(3) and  8(a)(5) charges in the Consolidated Complaint may be          reinstated by amendment to the now timely   8(a)(1) charge.                                          II                                          II                                          __                    Section  10(b)  of  the  NLRA  prescribes  a  six-month          statute of limitations  for the filing  of unfair labor  practice          charges.3   In Ducane  Heating Corp.,  273 N.L.R.B.  1389 (1985),                         _____________________          enforced without opinion, 785 F.2d 304 (4th Cir. 1986), the Board          ________________________          extended  the breadth of   10(b) to prohibit the reinstatement of          dismissed charges outside the six-month  period.  The Board  also          held  that the  limitations period  is tolled when  "a respondent          fraudulently conceals the operative  facts underlying the alleged          violation."   Ducane Heating, 273  N.L.R.B. at 1390.   The period                        ______________          will begin to run anew  when "the charging party knows  or should          have known  of the concealed facts."   Id.  In  effect, the Board                                                 ___          borrowed the federal doctrine of fraudulent concealment, which is          an  "equitable  doctrine  read  into  every  federal  statute  of          limitations."   Holmberg v. Armbrecht,  327 U.S. 392, 397 (1946);                          ________    _________          O'Neill, Ltd., 288 N.L.R.B. 1354, 1988 WL 214303 at * 57.          _____________                                        ____________________          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-                    While the language  of    10(b) does not  apply on  its          face to the reinstatement of dismissed charges, the Board is free          to  fill a  "gap" left  in  the statute  by applying    10(b)  to          dismissed charges and  by fashioning its  own rule of  fraudulent          concealment  to toll the  statute of  limitations.   Chevron USA,                                                               ____________          Inc., v. Natural Resources  Defense Council, Inc., 467 U.S.  837,          ____     ________________________________________          843-44  (1984).    Traditionally  the  Board  has  been  accorded          "deference  with regard to its interpretation of the NLRA as long          as  its  interpretation  is  rational  and  consistent  with  the          statute."   NLRB v. United Food & Commercial Workers Union, Local                      ____    _____________________________________________          23,  484 U.S.  112, 123  (1987).   The Court  of Appeals  for the          __          District  of  Columbia  found  the  application  of     10(b)  to          dismissed  charges  to  be  reasonable and  consistent  with  the          underlying policy  of  the statute  in District  Lodge 64,  Int'l                                                 __________________________          Ass'n  of Machinists and Aerospace Workers v. NLRB, 949 F.2d 441,          __________________________________________    ____          445 (D.C. Cir. 1991).  We agree with that determination.   In the          absence  of a clear statement from Congress on the application of          the  fraudulent  concealment  tolling  doctrine in  the     10(b)          context, we must defer  to the Board's reasonable interpretation.          Chevron,  467 U.S.  at  843-44.    We turn  now  to  the  Board's          _______          formulation  of   its  interpretation   and  to  whether   it  is          permissible.                    The Board's reluctance to  delimit the precise contours          of  the fraudulent concealment doctrine as applied to   10(b) has          been  a matter of  some frustration for the  federal courts.  See                                                                        ___          NLRB  v. O'Neill, 965 F.2d  1522, 1527 (9th  Cir. 1992); District          ____     _______                                         ________                                         -8-          Lodge 64, 949 F.2d at 449 (remanding fraudulent concealment issue          ________          because court was  "unable to  make enough sense  of the  Board's          opinion to  justify  affirmance").    In this  case,  the  Board,          adopting the  ALJ's reasoning and conclusions,  purported to rely          on  the  general  federal  fraudulent  concealment  doctrine   as          explained  by  an  earlier  Board decision,  O'Neill,  Ltd.,  288                                                       ______________          N.L.R.B.  1354  (1988),  and by  the  Court  of  Appeals for  the          District of Columbia in Hobson v. Wilson, 737 F.2d 1, 33-36 (D.C.                                  ______    ______          Cir. 1984), cert. denied  sub. nom., Brennan v. Hobson,  470 U.S.                      _______________________  _______    ______          1084 (1985).  Nevertheless,  the Board appears to have  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                       ______          Columbia recognized two means by which fraudulent concealment can          occur  -- by  affirmative  acts of  concealment  or by  a  "self-          concealing"  wrong or  scheme.   The  Hobson  court held  that  a                                                ______          plaintiff may establish a  self-concealing wrong by demonstrating          that the  defendant "engage[d]  in some misleading,  deceptive or          otherwise contrived action or scheme, in the course of committing                                                ___________________________          the  wrong, that is designed to mask  the existence of a cause of          __________          action."  Hobson, 737 F.2d at 34-35.  The court announced a broad                    ______          and  inclusive understanding  of self-concealing  wrongs, stating          that  "[t]he deception  may be as  simple as  a single  lie or as          complex as [a  scheme], so  long as the  defendants conceal  'not          only  their involvement, but the  very conduct itself.'"   Id. at                                                                     ___          34-35 (citation omitted).                    Based  on  Hobson and  its  belief  that O'Neill,  Ltd.                               ______                        ______________                                         -9-          adopted  Hobson's  reasoning,  the  Union contends  that  it  has                   ______          demonstrated  fraudulent  concealment  and that  the  statute  of          limitations was tolled.  The Union's argument proceeds roughly as          follows:   Normally, in the course of negotiation each party at a          bargaining  session attempts to  force the  other side  to accept          concessions.  The NLRA requires that the parties meet and bargain          in  good faith, but does  not require that  they reach agreement.          See NLRB v. Insurance  Agents' Int'l Union, 361 U.S.  477, 490-01          ___ ____    ______________________________          (1960);  Soule  Glass & Glazing Co. v. NLRB,  652 F.2d 1055, 1103                   __________________________    ____          (1st Cir. 1981) ("Adamant insistence on a bargaining position . .          .  is  not  in itself  a  refusal  to  bargain  in good  faith.")          (citation  omitted).     Therefore,  in   the  average  "surface"          bargaining  case  (bargaining  without  the intent  to  reach  an          agreement) the central issue  is motive.  As the  Union perceives          the   issue,  the   deception  committed   by  the   Company  was          misrepresenting  bad faith  or surface  bargaining as  good faith          bargaining.   The self-concealing  wrongs were the  statements to          the  Board  that the  Company  honestly  put forward  negotiating          positions  with a good faith  bargaining intent.   In the Union's          view, the Company prevented the  Union from discovering the cause          of  action, despite  the Union's  due diligence,  by fraudulently          concealing the operative fact  -- its bad faith.  In  effect, the          Union  argues that tolling  continues as long  as the concealment          has so  impaired its  case that  it is unable  to furnish  to the          General  Counsel with,  or the  General Counsel  cannot discover,          sufficient evidence to file a formal complaint before the Board.                                         -10-                    We   fully  understand  the  rationale  supporting  the          Union's stance.   In this  case, the Union  filed three  separate          charges  alleging  essentially the  same  grievance  -- that  the          Company was surface bargaining and its true intent was to destroy          the  Union.    These  charges were  dismissed  on  three separate          occasions and twice on appeal.  The General Counsel explained, in          its memorandum in support of exceptions to the ALJ decision, that          at  the time the charges were dismissed, the Company's bargaining          table  conduct,  the  first  and generally  exclusive  source  of          evidence, revealed  no indications  of  bad faith.   Indeed,  the          evidence showed  that the parties  were meeting and  that various          proposals were being discussed.  Despite the Union's  claims that          the  Company intended to destroy the Union, there was no concrete          evidence  of  that  intention.   The  General  Counsel  asserted,          therefore, that it would  not have brought the complaint  because          the extensive paper trail compiled by  the Company indicated that          it was  bargaining in good faith while at the table.  The General          Counsel denied that it knew all the facts subsequently considered          by the ALJ  to support a prima facie case  of surface bargaining.          Nonetheless, the General Counsel stated that even if it had known          the  facts, it  would  not have  brought  a complaint  given  the          Company's conduct during discussions at the bargaining table.                    Consequently, from the Union's perspective, the conduct          at  the table  and  the  position  statements  submitted  to  the          Regional  Director  defending  against  the  charges, which  were          designed to  deceive  the Union  and  the General  Counsel,  were                                         -11-          sufficient  to conceal the cause of action and therefore toll the          statue  of limitations  under the  self-concealing wrong  theory.          The cause  of action was  concealed because  the General  Counsel          would not bring  the complaint without direct evidence of illegal          intent  if the  bargaining table  conduct at  least superficially          appeared to be in  good faith.  Furthermore, because  the General          Counsel's dismissal  of the  charges is unappealable,4  whether a          cause of action  is concealed  must be decided  according to  its          criteria.                    While it quoted from Hobson, the ALJ's decision did not                                         ______          rely on Hobson's statement of the "self-concealing wrong" theory.                  ______          The  ALJ  stated  that  the  Board  had  never  found  fraudulent          concealment  without some affirmative act,  even if it was simply          affirmative  verbal  misrepresentation.    Girardi  Distributors,                                                     ______________________          Inc., 307  N.L.R.B. No. 236,  1992 WL 18679  at *38 n.24  (citing          ____          Brown & Sharpe Mfg., 299 N.L.R.B. No. 89 (1990); Kanakis Co., 293          ___________________                              ___________          N.L.R.B.  No. 50 (1989); Strawsine Mfg., 280 N.L.R.B. 553 (1986);                                   ______________          Garrett  Railroad  Car  &  Equipment,  Inc.,  275  N.L.R.B.  1032          ___________________________________________          (1985)).  The ALJ specifically noted that the Board's decision in          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  definition  of what  sort  of self-                    ______          concealing  wrong  could  be  considered  fraudulent  concealment          sufficient  to toll  the statute  of limitations.   The  ALJ read          O'Neill,  Ltd. to require a  showing that "there were affirmative          ______________          misrepresentations  made  (exculpatory  statements   aside)  with          respect to the  dismissed charges,"  and that there  was a  self-                                               ___          concealing scheme in place (as opposed to a single lie).  Girardi                                                                    _______          Distrib., 1992  WL  18679  at  *29  (citing  O'Neill,  Ltd.,  288          ________                                     ______________          N.L.R.B.  at 1355).   Under  this formulation,  there must  be an          affirmative  misrepresentation other  than  telling  the  General          Counsel and the charging party that the accused is not engaged in          surface  bargaining  and  supplying  rational  excuses  for   the          accused's  conduct at  the  bargaining table.    See id.  at  *38                                                           ___ ___          n.23.5    The  ALJ's  conception of  the  scheme  necessary seems          rather  great indeed; he appeared  to require a  showing of "some          master plan of contingencies that would be triggered by unfolding          events."  Id. at *29.                      ___                    We agree with the ALJ that, to the extent O'Neill, Ltd.                                                              _____________          discusses  the more  relaxed  standard of  self-concealing wrongs          explained in Hobson,  those statements are only  dicta.  O'Neill,                       ______                                      ________                                        ____________________          5   The ALJ relied on the Board's statement in O'Neill, Ltd. that                                                         _____________          "the  mere fact  that a  party makes  exculpatory representations          does not,  by itself, constitute fraudulent  concealment or serve          to toll  the    10(b) period."   288 N.L.R.B.  1353, n.10  (1988)          (citing Al Bryant, Inc., 260 N.L.R.B. 128, 133-35 (1982)).                   _______________             We note that we find this  rule rather peculiar because we can          think of no reason to distinguish "exculpatory" statements to the          Board designed to  avoid a  formal complaint from  any other  lie          that  a party  may proffer  to avoid  sanctions for  unfair labor          practices.                                         -13-          Ltd.  did not announce  the rule upon  which the Union  now urges          ____          that  we rely.6  It is impossible  to say what deceptive actions,          short  of proof of a complicated  scheme replete with contingency          plans to get rid  of the Union, would  satisfy the Board.   It is          clear, however, that the deception that the Board now requires is          significantly more than the  "single lie" which the Hobson  court                                                              ______          rule would accept.                    Irrespective of  the extent  of the effort  to conceal,          the  fraudulent concealment  doctrine  will not  save a  charging          party  who fails to exercise  due diligence, and  is thus charged          with notice of a potential claim.   Girardi Distrib., at * 28-29;                                              ________________          Hobson,  737 F.2d at  35.7  Normally,  when the party  seeking to          ______          toll  the statute  by fraudulent concealment  alleges affirmative          acts of concealment, the burden of showing due diligence falls on          that party.   Morales  v. Rosa-Viera,  815  F.2d 2,  5 (1st  Cir.                        _______     __________          1987).  The  opposite rule  applies, however,  when the  charging          party alleges  that the  statute is tolled  by a  self-concealing                                        ____________________          6  We note parenthetically that  the Board would probably be able          to develop a new rule, or narrow a present one, without offending          decisions  limiting an  agency's  authority to  apply such  rules          retroactively.  See Chevron Oil Co. v. Huson, 404 U.S. 97 (1971);                          ___ _______________    _____          District Lodge  64, 949 F.2d at  446-48.  The absence  of a clear          __________________          rule  would negate  any claim  of  reasonable reliance,  which is          necessary  for a finding that  application of the  new rule would          cause "substantial inequitable results."   See District Lodge 64,                                                     ___ _________________          949 F.2d at 448.          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-          wrong, in which case the defendant bears the burden.  Hobson, 737                                                                ______          F.2d  at  35.   Thus,    "[w]hen  tolling is  proper  because the          defendants  have concealed the  very cause of action,  . . . they          have the burden of coming forward with any facts showing that the          plaintiff could have discovered .  . . the cause of action  if he          had exercised  due diligence."  Id. (quoting Richards v. Mileski,                                          ___          ________    _______          662  F.2d 65,  71  (D.C. Cir.  1981)).   In  another  significant          departure from  the Hobson  decision, the Board  here placed  the                              ______          burden of  proving the exercise  of due diligence  in discovering          the  fraud  on  the   party  seeking  to  toll  the   statute  of          limitations.  The significance of which party bears the burden of          proof on due diligence is palpable in this case because, in large          measure,  the Board's  decision turned  on the  utter  absence of          evidence of due diligence  by the Union and the  General Counsel.          Nevertheless, because  courts apportion this  burden differently,          compare Hobson, 737 F.2d  at 35 (placing burden on  party seeking          _______ ______          shelter of statute of  limitations in self-concealing wrong case)          with  NLRB  v.  O'Neill, 965  F.2d  1522,  1527  (9th Cir.  1992)          ____  ____      _______          (placing burden  on party seeking to toll  statute of limitations          in self-concealing scheme  case), we cannot say  that the Board's          decision  is  unreasonable  and   therefore  must  defer  to  it.          Chevron, 467 U.S. at 843-44.            _______                    Having  established  the  legal  tests   governing  the          Board's decision, we turn  to the Board's findings  of fact.   We          must accept the Board's factual findings if they are supported by          substantial  evidence on the  record when considered  as a whole.                                         -15-          29 U.S.C.   160(f); Universal Camera Corp. v. NLRB, 340 U.S. 474,                              ______________________    ____          488  (1951).  In this case, the  Board adopted the ALJ's findings          and  conclusions.   The  ALJ  found  that  the  Company  did  not          fraudulently  conceal by affirmative  actions the operative facts          underlying the dismissed charges.   The ALJ exhaustively reviewed          the evidence and found that the General Counsel had  made a prima          facie  case of  bad  faith or  surface  bargaining based  on  (1)          evidence  of the Company's generalized intent to bust the Union;8          (2) the discrepancy between wage  proposals for union workers and          the wages  paid to nonunion workers at  other Company facilities;          (3)  the  solicitation  of   replacement  workers  early  in  the          bargaining process;  (4) the expressed belief  that the proposals          would  provoke a  strike; and  (5) the  statements  of operations          manager,  Ken White,  indicating that  better wages  and benefits          would  be provided if the employees renounced the Union.  The ALJ          therefore concluded that the operative facts  could not have been          fraudulently concealed because the  Union and the General Counsel          knew  the facts supporting the prima face case when the dismissed          charges were originally  filed by  the Union.   Finally, the  ALJ          determined  that the  dismissed charges  could not  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  of the  fraudulent concealment          doctrine  in the    10(b)  context, we  cannot conclude  that the          Board's  findings  of fact  and  conclusions  are unsupported  by          substantial  evidence in  the  record.   Consequently, they  must          stand.  The strength  of the Union's argument proceeded  from the          evidence  of  intent  garnered  from statements  made  by  former          insiders not available to the General Counsel or the Union at the          time  the charges  originally  were filed.    The Board  was  not          swayed;  it explicitly held that  the new evidence  did not alter          its calculus.                     Clearly there is an  incongruity between what the Board          and  the  General Counsel  find sufficient  to  state a  claim of          surface  bargaining.  The Board's prima facie case, and hence its          finding  of notice,  rests  on facts  which  it holds  constitute          constructive,  as  opposed to  actual, evidence  of bad  faith or          intent.  The ALJ asserted that a surface bargaining  case must be          made on  the basis  of the  "totality of  respondent's observable          conduct."  Girardi  Distrib. at  *29.  In  contrast, the  General                     _________________          Counsel contended in this case that it normally would not bring a          formal  unfair labor  practice  complaint,  irrespective  of  the          surrounding circumstances, in cases in which the bargaining table          conduct  appeared  to be  in good  faith.   The  ALJ specifically          rejected the  General Counsel's  suggestion to follow  the Hobson                                                                     ______          court's statement  of  fraudulent concealment,  stating, "[i]f  I          agreed  with the position of the General Counsel, virtually every                                         -17-          surface  bargaining case  would  be potentially  exempt from  the          strictures of  section 10(b), needing only  some newly discovered          evidence of intent to surface."  Id.                                             ___                    This  incongruity  places  the  charging  party   in  a          difficult position.    A charging  party cannot  get the  General          Counsel  to   file  a  timely  complaint  if  it  only  possesses          circumstantial evidence supporting  a finding of  bad faith.   On          the other  hand,  its timely  charges  that the  General  Counsel          unappealably  dismissed will  not  be reinstated  if the  General          Counsel  later finds  direct evidence of  bad motive  because the          Board  construes evidence  of  constructive intent  based on  the          totality of the circumstances  as notice of  the claim.  That  is          what happened in this case.                      While we believe the Court of Appeals  for the District          of    Columbia's  construction   of  the  fraudulent  concealment          doctrine  urged by  the General  Counsel and  the Union  to be  a          better and  more  equitable  rule  for  the  victims  of  surface          bargaining, the  Board ultimately controls  the terms of    10(b)          unless its  interpretation is unreasonable.  We  may not supplant          the Board's  judgment since the  Board reasonably adopted  a less          expansive fraudulent concealment doctrine  that it viewed as more          faithful to industrial relations  policy favoring finality in the          resolution of labor disputes.   We note, however, that  under the          present formulation, the General Counsel  will rarely demonstrate          fraudulent  concealment in surface  bargaining cases.  Therefore,          instead of  waiting  for the  smoking  gun, the  General  Counsel                                         -18-          should search diligently for  circumstantial evidence of unlawful          intent as understood by  the Board to prevent sound  unfair labor          practice  charges from  being barred  by the    10(b)  statute of          limitations.   Investigation  should include  interviewing senior          bargaining representatives or company presidents concerning their          intention to bargain  in good  faith and their  union animus,  if          only to later assert misrepresentation that  tolls the statute of          limitations.9                                          III                                         III                                         ___                    We turn now to the Union's second argument to avoid the          statute of limitations bar.   The third set of  charges dismissed          in 1989 (case 1-CA-26660) involved several charges.   It alleged,          inter  alia, violations of   8(a)(5) for bad faith bargaining and          ___________            8(a)(1) based  on statements  made by the  Company's operations          manager promising  improved wages  and working conditions  if the          workers  renounced  the  Union.10   All  the  charges except  the            8(a)(1) charge, were dismissed.   The   8(a)(1) charge  was the          subject of a unilateral informal settlement agreement approved by          the Regional  Director.11   Because settlement agreements  may be          set aside  if the  provisions are  breached or  subsequent unfair          labor practices are committed, see Universal Blanchers, Inc., 275                                         ___ _________________________                                        ____________________          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  See supra note 1.              ___ _____          11  The Company  agreed to post the appropriate  notice to remedy          the infraction.                                         -19-          N.L.R.B. 1544,  1545 (1985), the Regional Director  did not close          case 1-CA-26660.  The  Regional Director rescinded the settlement          agreement  and  asserted  that  the  Consolidated  Complaint  was          "closely related"  to the then-resurrected    8(a)(1) charge, and          therefore  not  time-barred.12    The Union  proffers  this  same          argument on appeal.                    In  Nickles Bakery  of Indiana  Inc., 296  N.L.R.B. 927                        ________________________________          (1989), the Board summarized the closely related test established          in Redd I, Inc., 290 N.L.R.B. 1115 (1988):                ____________                      First,  the  Board will  look  at whether                      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 will look at                      whether a respondent would  raise similar                      defenses to both allegations.          Nickles  Bakery,   296  N.L.R.B.  at  928   (footnotes  omitted).          _______________          Applying this  standard, the  ALJ rejected the  "closely related"          argument.   In addition, while  the ALJ agreed  that the informal          settlement  agreement could  be  set  aside  due to  the  charges          pending in the Amended  Complaint, he ultimately recommended that                                        ____________________          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.     The  ALJ  favored  reinstatement  because          rescinding  the agreement served no purpose in light of its other          holding that the   8(a)(1) allegations were not "closely related"          to  the   8(a)(5) charges.   Girardi Distrib.  at *31-*33 & n.30.                                       ________________          The Board adopted the ALJ's recommendations and conclusions.                    Appellee  Company urges  that we  may not  consider the          "closely  related" theory  supporting reinstatement  of dismissed          charges.  It reasons that because neither the General Counsel nor          the Union raised objections to the reinstatement of the set aside          settlement agreement, the  Union has  waived its right  to do  so          now.  See  29 U.S.C.    160(e);13 Woelke  & Romero Framing,  Inc.                ___                         _______________________________          v. NLRB, 456 U.S.  645, 665 (1982);  Detroit Edison Co. v.  NLRB,             ____                              __________________     ____          440 U.S.  301, 311 & n.10  (1979).  It follows,  then, that since          the settlement agreement disposing of  the   8(a)(1) charges  has          been reinstated, no timely  charge exists to which the  dismissed          charges of the Consolidated Complaint can be "closely related."                    It  is true  that the  General  Counsel did  not object          specifically  to the  reinstatement of  the set  aside settlement          agreement  before  the Board.14    The  General Counsel  objected          strenuously, however,  to the ALJ's  decision that the    8(a)(5)          charges were not  "closely related" to the   8(a)(1) charges.  We                                        ____________________          13  Judicial  review is barred by    10(e) of the Act,  29 U.S.C.            160(e), which  provides that "[n]o objection that  has not been          urged before  the Board . .  . shall be considered  by the court,          unless the failure  or neglect  to urge such  objection shall  be          excused because of extraordinary circumstances."          14  Nor did the  Union, although it could have intervened  in the          appeal to the Board.  See 29 U.S.C.   10(f).                                ___                                         -21-          think that  the exception  taken  on this  ground challenged  the          recommendation  to   reinstate  the  set  aside   agreement  with          sufficient particularity  to survive the rule  waiving issues not          timely raised.  By  attacking the ALJ's decision on  the "closely          related" issue, the General  Counsel attacked the ALJ's rationale          for reinstatement.  Thus, the General Counsel implicitly objected          to reinstatement of the set aside agreement.                    We  therefore  consider  whether  the  charges  in  the          Consolidated  Complaint were  closely  related to  the    8(a)(1)          charge.  While  the ALJ found  that none of  the elements of  the          test had been met, his  explanations were less than satisfactory.          We examine each in turn.                    The ALJ  combined the "same legal  theory" and "similar          defense"  components  of  the  test,  asserting  that  the  legal          theories  behind  each  charge  were "far  different,"  but  only          illustrating the  differences between the defenses  that would be          raised to each charge.   The ALJ stated that the only  defense to          the   8(a)(1) charge was  that the statements had not  been made.          In  contrast, a  defense to  the    8(a)(5) charge  would involve          detailed  explanations   of  each  step  taken   by  the  Company          throughout the  negotiations and  disintegration of the  parties'          relationship.  The only connection that the ALJ could see between          the two  sets  of charges  was  "their bearing  on  the issue  of          intent."  Girardi Distrib. at *33.                      ________________                    With respect  to  the "same  factual  circumstances  or          sequence  of  events" element  of the  test,  the ALJ  imposed an                                         -22-          extremely  high burden  regarding  the required  nexus.   Without          proof  that  the  Company specifically  directed  the  operations          manager, Ken White, to make the   8(a)(1) statements as part of a          "scheme"  to get rid of the Union, the ALJ rejected the assertion          that  the statements were part  of the same  factual situation or          sequence  of  events.   He  concluded  that  the  statements were          "simply isolated  statements reflecting  the common knowledge  of          all  [the Company's] employees that Mr. Girardi would like to get          rid of the Union."  Id. at *32.                              ___                    We  think that  the ALJ's  factual conclusions  are not          supported  by substantial evidence in the record and that the ALJ          misapplied  the  closely  related  test.    With  respect to  the          similarity between the legal  theories underlying each charge, it          is  clear that  the  allegations  need  not  be  under  the  same          statutory  section.  See Redd I, Inc., 290 N.L.R.B. 1115; NLRB v.                               ___ ____________                     ____          Overnite Transp. Co., 938 F.2d 815, 821 n.8 (7th Cir.  1991).  It          ____________________          is sufficient  that both charges  are part of the  same effort or          crusade  against the union.  See, e.g., Overnite Transp. Co., 938                                       ___  ____  ____________________          F.2d at 821; Texas World Service Co. v. NLRB, 928 F.2d 1426, 1437                       _______________________    ____          (5th  Cir. 1991).   In  this case,  the ALJ  conceded that  the            8(a)(1) statements  were probative  of the Company's  intent when          dealing with the Union,  which was the central issue for  the bad          faith bargaining charges  under    8(a)(5).  It  would seem  then          that  the  charges  involved   the  same  legal  theory,  broadly          speaking.                    We  do  not  understand  the  ALJ's  finding  that  the                                         -23-          statements  by White  were  just  isolated statements  confirming          facts already  known to  the Union.   As  we stated earlier,  the          evidence  did  not  support  finding  a  detailed  "scheme"  with          contingency plans.   The factual nexus required under the closely          related  test,  however, does  not  demand  that General  Counsel          establish  that  sort of  a conspiracy.    Charges will  be found          closely related factually if  they arise from the  same "sequence          of events."  Earlier in his opinion, the ALJ found that after the          bargaining  unit members  complained  about  the wage  difference          between  the  Company's  union  and  nonunion  employees,  White,          "acting  on information given him by Mr. Girardi, advised the men          they  could have the benefits afforded  the nonunion personnel if          they decertified."  Girardi  Distrib. at *26.  Thus,  despite the                              _________________          inconsistency in  the ALJ's  characterization of the  impetus for          the  statements, it is clear  that the Company  directed White to          make the antiunion statements in violation of   8(a)(1).  The ALJ          also relied upon White's statements in determining that the prima          facie case on surface bargaining  existed.  Finally, the evidence          indicated  that White played an important role in the campaign to          bust the Union,  even if the  evidence did not support  a finding          that a  detailed conspiracy existed  by which the  Union's ouster          would  be  accomplished.     Consequently,  we  think  the  facts          underlying the two charges are factually "closely related."                    The  fact that  the defenses  to the    8(a)(5) charges          would be much more detailed and lengthy in their presentation, as          the  ALJ found, is  not fatal to  a finding that  the charges are                                         -24-          closely  related.   Taken as  a whole,  the closely  related test          seeks to ensure that  the General Counsel does not amend a charge          to  include unrelated infractions of the NLRA.  Each component of          the test adds  specificity to  the inquiry.   The "same  defense"          prong of  the test is  but another  way to ferret  out amendments          which involve  extraneous material.   In defending against  the            8(a)(5) charge the  Company would  attempt to  show that  White's          statements were not part of its effort to decertify the Union and          that  its efforts  to  bust the  Union  did not  include  surface          bargaining.   The  overlap  between  the  subject matter  of  the          defenses  is readily apparent.  The Union, therefore, has met the          "closely  related"  test and  the merits  of  the charges  in the          Consolidated Complaint warrant consideration.                                          IV                                          IV                                          __                    We  affirm the  Board's holding  with respect to  the                          ______          10(b)  bar.    We reverse  the  reinstatement  of  the set  aside                            _______          settlement agreement and remand for a hearing on the Consolidated                                   ______          Complaint  having  found those  charges  closely  related to  the          timely   8(a)(1) charges underlying the set aside agreement.                                         -25-
