235 F.3d 669 (D.C. Cir. 2001)
Ross Stores, Inc., Petitionerv.National Labor Relations Board, Respondent
No. 99-1453
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2000Decided 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:


1
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.

2
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.


3
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.


4
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 ofthem separately  that " 'there was no solicitation on these premises.' "  App.  670.


5
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.


6
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.


7
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.


8
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


9
Ross petitioned for review and the Board cross-applied for  enforcement.

II.

10
We address Ross's challenge to each of the two unfair labor  practice findings separately.

A.

11
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:


12
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.


13
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.


14
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:


15
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.


16
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


17
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  because they involved "discriminatory acts against employees  'during, and in order to quell, a union campaign' " and "arise  from the same circumstances and sequence of events." Nippondenso, 299 N.L.R.B. at 545.  The court further concluded  the Board's determination that the uncharged allegations  were timely could not stand because the Board had not  overruled Nippondenso or explained its deviation from Nippondenso's holding.  Seeking to avoid a similar fate here, the  Board below "decided to overrule Nippondenso to the extent  that it conflicts with Nickels Bakery and other precedent ...  consistently holding that the requisite factual relationship  under the 'closely related' test may be based on acts that  arise out of the same anti-union campaign."  NLRB Dec. at 2. To no avail.


18
The Board's contention that the factual relationship prong  can be satisfied solely on the basis that the separate acts  arise out of the same anti-union campaign here is a deviation  from the very precedent it cites.  As we stated in Drug  Plastics, Nickels simply "does not support the Board's conclusion."  44 F.3d at 1021.  The Board in Nickels did not even  address whether the circumstances there supported a closely  related finding but merely "overruled those cases holding or  implying that the catchall 'other acts' language preprinted on  the charge form provides a sufficient basis, on its own, to  support any and all 8(a)(1) complaint allegations" and remanded to the Regional Director to apply the closely related  test.  Nickels, 296 N.L.R.B. at 929.4  In each of the other cited cases the Board required both that the separate incidents be part of the same union organizing campaign and  that they be part of an overall employer plan to undermine  the union activity.  See Pioneer Hotel & Gambling Hall, 324  N.L.R.B. 918, 918 n.1 (1997);  Recycle America, 308 N.L.R.B.  50, 50 n.2 (1992);  Pincus Elevator & Elec. Co., 308 N.L.R.B.  684, 684 n.2, 690 (1992), enforced mem., 998 F.2d 1004 (3d Cir.  1993);  Outboard Marine Corp., 307 N.L.R.B. 1333, 1334  (1992), enforced, 9 F.3d 113 (7th Cir. 1993);  Well-Bred Loaf,  Inc., 303 N.L.R.B. 1016, 1016 n.1 (1991);  Southwest Distributing Co., 301 N.L.R.B. 954, 955 (1991);  Harmony Corp., 301  N.L.R.B. 578, 578-579 (1991);  Beretta U.S.A. Corp., 298  N.L.R.B. 232 n.1 (1990), enforced, 943 F.2d 49 (4th Cir. 1991); Van Dyne Crotty Co., 297 N.L.R.B. 899, 900 (1990).5  Although the Board's decision here recites the separate incidents were "part of the Respondent's overall efforts to resist  that campaign," NLRB Dec. at 2-3, the finding is unsupported in the record except by the happenstance that the unrelated two violations occurred during a single campaign and  involved the same pro-union employee.  There is no evidence  to otherwise connect Jumper's discharge to Simondi's apparently isolated and unauthorizedinvocation of an over broad  solicitation policy.6  Nor is there any evidence that Simondi  was involved in Jumper's discharge.  Cf. MECO Corp. v.  NLRB, 986 F.2d 1434, 1437 (D.C. Cir. 1993) (anti-union  comments of supervisor did not establish animus of discharge  of union adherent where there was "no showing that [supervisor] played any role in [the] discharge");  Hudson, Inc., 275  N.L.R.B. 874, 874-75 (1985) (finding supervisor's anti-union  remarks did not "establish the requisite element of anti-union  animus" where he "played no part in [employer's] decision to lay off the employees").7


19
Not only is the Board's decision unsupported by its own  case law, it also flouts ours.  In Drug Plastics the court  overturned the Board's "closely related" finding not only  because it was inconsistent with Nippondenso but also because the court's opinion in Galloway "dictate[d] its reversal." Drug Plastics, 44 F3d at 1021.  After examining the language, legislative history and judicial construction of section  10(b) the Galloway court rejected the Board's position that an  unlawful dismissal and threats to strikers were sufficiently  related "because they occurred one day apart, involved the  same employer, and occurred at the same plant."  856 F.2d at  280.  The court in Galloway explained:


20
It cannot be that allegations in a charge and a complaint having no more in common than that they concern the same employer and occur at the same location are sufficiently related to satisfy Section 10(b).  Were that the rule, the Board would be free to include in a complaint anything transpiring at an employer's place of business without regard to the type of violation involved or when it occurred.  Such a broad interpretation of the Board's power clearly would clash with the limiting intent pervading Section 10(b).


21
Id. at 280-81.  Nor, the court concluded, was the Board's case  helped by the additional "link" that the alleged incidents  "occurred only one day apart":


22
We cannot ... accept the proposition that mere chronology is sufficient to put the Board beyond Section 10(b)'s restraints.  That a discharge occurred one day and a strike the next day does not mean that the two events had any common features.  If the strike was sparked by the discharge or was staged to protest the discharge, the necessary relationship would likely exist.  Similarly, if an employee was fired for participating in a strike characterized in a filed charge as improper, a complaint based on that charge might permissibly assert that other employees were threatened with dismissal for taking part in the same strike.  However, if the consecutive occurrence of the two incidents was no more than happenstance, the relationship essential to incorporation of uncharged incidents into complaints is entirely lacking.


23
856 F.2d at 281 (footnote omitted).


24
We have no closer connection here than was present in  Galloway or in Drug Plastics.  The coincidence of the two  separate violations during the same organizing campaign does  not of itself create a close factual relationship.  As we indicated in Galloway and Drug Plastics, some additional factual  similarity is necessary beforean allegation not timely charged  can be exempted from the literal application of section 10(b)'s  limitation period under the closely related test.  And there is  none here.  To permit the Board to pursue the untimely  charged 8(a)(1) violation based on the timely charged but,  under Galloway, unrelated 8(a)(3) violation "would be tantamount to allowing the Board to enlarge its jurisdiction beyond  that given it by Congress."  Galloway, 856 F.2d at 279.  That  we may not do.  We therefore grant Ross's petition with  regard to the violation based on Simondi's admonition to  Jumper.

B.

25
Next we address the Board's finding that Ross violated  section 8(a)(3) of the Act by discharging Jumper on account of  his union activity.  Because the finding is "supported by substantial evidence on the record considered as a whole," we  must accept it as "conclusive."  29 U.S.C. § 160(e), (f).


26
Under the Board's established Wright Line test,


27
the general counsel must first show that the "protected activity was a motivating factor in the adverse employment decision."  Frazier Indus. Co., Inc. v. NLRB, 213 F.3d 750, 755 (D.C. Cir. 2000) (internal quotation marks omitted).  If this prima facie showing is made, the burden shifts to the employer to demonstrate that "it would have made the adverse decision even had the employee not engaged in protected activity."  Vincent Ind. Plastics, Inc. v. NLRB., 209 F.3d 727, 735 (D.C. Cir. 2000) (citing Wright Line, Inc., 251 N.L.R.B. 1083, 1089, 1980 WL 12312 (1980)). In determining whether an employer had a discriminatory motive, "the NLRB may 'consider[ ] such factors as the employer's knowledge of the employee's union activities, the employer's hostility toward the union, and the timing of the employer's action.' "  Id. (quoting Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994)).


28
Traction Wholesale Ctr. Co. v. NLRB, 216 F.3d 92, 99 (D.C.  Cir. 2000).  The Board below based its finding of anti-union  animus on management's knowledge that Jumper was participating in the ongoing union organization campaign and on the  two other incidents of anti-union animus by management: Simondi's admonition to Jumper and Morrison's comments to  the employees.  Ross does not challenge the evidentiary basis  of the Board's factual findings and we conclude they are  sufficient to establish animus.8  The Board further found  Ross had failed to meet its burden under Wright Line of  showing it would have discharged Jumper even if he had not  been a union organizer.  Specifically, the Board, like the ALJ,  found that Ross had no rule requiring that time off be  scheduled in advance that would support Ross's proffered alternative justification for firing Jumper.  This finding too is  supported in the record by the absence of any such rule from  Ross's written time-off policies and by the testimony of a  Ross employee that she had previously asked for and received  time-off without prior approval.


29
For the foregoing reasons, Ross's petition for review is  granted as to the no-solicitation violation and denied as to  Jumper's discharge and the Board's cross-application for  enforcement is denied as to the former and granted as to the  latter.


30
So ordered.



Notes:


1
 These two provisions make it an unfair labor practice for an  employer "to interfere with, restrain, or coerce employees in the  exercise of the rights guaranteed in section 157 of this title," 29  U.S.C. § 158(a)(1), and "by discrimination in regard to hire or  tenure of employment or any term or condition of employment to  encourage or discourage membership in any labor organization," id.  § 158(a)(3).


2
 Board Members Brame and Hurtgen dissented from the finding  that the first two charges were not time-barred and Member  Hurtgen further dissented from the majority holding that Jumper's  discharge was in violation of the Act.  Board Members Fox and  Liebman dissented from the finding that Morrison's comments did  not constitute an unfair labor practice.


3
 Having concluded the Board incorrectly found the factual prong  of the "closely related" test was satisfied, we do not address the  Board's findings on the test's two other prongs.


4
 In its original context, the quoted language simply referenced a  footnote in Galloway which in turn "cited cases from other courts of  appeals referring to the finding of a sufficient relation between the  charge and complaint in circumstances involving 'acts that are part  of the same course of conduct, such as a single campaign against a  union,' NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321  (5th Cir. 1970), and acts that are all 'part of an overall plan to resist  organization.' NLRB v. Braswell Motor Freight Lines, 486 F.2d  743, 746 (7th Cir. 1973)."  Nickels, 296 N.L.R.B. at 929 n.7 (citing  Galloway, 856 F.2d at 281 n.41).


5
 While we point out that the decision below deviated from the  line of cases finding it sufficient if two incidents both occur during  the same campaign and are part of an overall union plan, we do not  decide whether or not those cases were correctly decided.


6
 The Board declined to find that the Company's written solicitation policy contained a "no-solicitation, no-distribution rule."  Board  Dec. at 3.


7
 By contrast, in Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939 (D.C.  Cir. 1999), cited by the dissent, animus was inferred where both  alleged violations were committed at the direction of top management.  See Parsippany Hotel Management Co. v. NLRB, 99 F.3d  413, 423 (D.C. Cir. 1996) ("While it may be unreasonable to attribute to a corporation the anti-union sentiment expressed by low-level  supervisors, see Pittsburgh S.S. Co. v. N.L.R.B., 180 F.2d 731, 741  (6th Cir. 1950), aff'd., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479  (1951), it is eminently reasonable to assume that high-level corporate managers speak on behalf of the company when they express  anti-union animus.").


8
 While we doubt that Simondi's admonition is properly attributable to Ross, see supra pp. 673-74, we do not reach the question  because Ross has not challenged its attribution.



31
Karen Lecraft Henderson, Circuit Judge, writing separately:


32
Although Ross does not raise the issue on appeal, I write  separately to express my agreement with Board Members  Hurtgen and Brame that section 8(c) of the National Labor  Relations Act precludes considering Morrison's anti-union  statements to employees that "they did not need a union" and  "he would do anything in his power to keep the union out of  the building," App. 670, as evidence of Ross's anti-union  animus in discharging Jumper.  See Board Dec. at 8 (Hurtgen), 12 n.19 (Brame);  see also Lampi LLC, 327 N.L.R.B.  No. 511, 1998 WL 856130, at *7 n.7 (1998) (Brame, dissenting).  Section 8(c) provides:


33
(c) Expression of views without threat of reprisal or force or promise of benefit


34
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.


35
29 U.S.C. § 158(c).  Because the Board specifically found that  "[i]n the circumstances of this case, there is no sufficient  objective basis for finding that employees would reasonably  tend to view Morrison's statement as a threat," Board Dec. at  3, section 8(c) on its face plainly bars the Board not only from  finding the speech was an unfair labor practice, which the  Board majority acknowledged, but also from using it as  "evidence of an unfair labor practice."  Thus, the Board's  decision to treat Morrison's statements as "evidence of animus establishing [Ross's] discharge motive," in the face of its  finding that the statement was "not unlawful in the context of  this case," was in direct violation of section 8(c) and beyond  the Board's authority.  See Medeco Security Locks, Inc. v.  NLRB, 142 F.3d 733, 744 (4th Cir. 1998) (citing Alpo Pet  Foods, Inc. v. NLRB, 126 F.3d 246, 252 (4th Cir. 1997));  BE  & K Constr. Co. v. NLRB, 133 F.3d 1372, 1375-77 (11th Cir.  1997);  Holo-Krome Co. v. NLRB, 907 F.2d 1343, 1345-47 (2d Cir. 1990);  NLRB v. Eastern Smelting & Refining Corp.,  598 F.2d 666, 670 (1st Cir. 1979);  Florida Steel Corp. v.  NLRB, 587 F.2d 735, 750-54 (5th Cir. 1979);  NLRB v.  Rockwell Mfg. Co., 271 F.2d 109, 118-19 (3d Cir. 1959); Pittsburgh Steamship Co. v. NLRB, 180 F.2d 731, 735 (6th  Cir. 1950);  see also International Union, United Automobile,  Aerospace & Agricultural Implement Workers v. NLRB, 363  F.2d 702, 707 (D.C. Cir.) (rejecting argument NLRB used  section 8(c) protected statements as "as some evidence of the  unfair labor practices themselves" and concluding statements  were used only to "place[ ] ... other acts in context"), cert.  denied, 385 U.S. 973 (1966).

Randolph, Circuit Judge, concurring:

36
While I join all of  Judge Henderson's opinion, I believe more should be said  about the Board's treatment of § 10(b) of the National Labor  Relations Act, 29 U.S.C. § 160(b),1 and the confusion this has  caused in the Board's analysis and in some courts.


37
Much of the confusion stems from a failure to distinguish  between the two separate functions § 10(b) performs.  The  statute first sets down a condition for the Board's exercise of  jurisdiction.  Only after someone--an employee or a union, for instance--has filed an unfair labor practice "charge" does  the Board have jurisdiction to issue a "complaint" alleging  unfair labor practices.  See NLRB v. Fant Milling Co., 360  U.S. 301, 307 (1959).  When a "charge" is filed, the Board  investigates it and, if there is merit to the charge, frames a  complaint, which the General Counsel then prosecutes.  Disputes occasionally arise about whether the complaint has gone  beyond the charge.  Although § 10(b) contemplates that the  "complaint" will "stat[e] the charges," the Supreme Court has  held that the Board may, in formulating its complaint, take  into account events occurring after the charge was filed, so  long as the post-charge "unfair labor practices ... are related  to those alleged in the charge and ... grow out of them,"  National Licorice Co. v. NLRB, 309 U.S. 350, 369 (1940); Fant Milling Co., 360 U.S. at 309.


38
Section 10(b) also functions much like a statute of limitations.  No complaint may be "based" on unfair labor practices  occurring more than six months prior to the filing of the  charge.  This proviso, added to § 10(b) in 1947, is at the  heart of the case before us.  The Board's current interpretation of the proviso is that the complaint may include uncharged unfair labor practices if they are "closely related" to  misconduct that was timely charged.  It is this "test" which  Judge Henderson and I find not satisfied here, but which  Judge Garland believes was met.


39
A few years after Congress added the § 10(b) proviso,  Judge Jerome Frank, speaking for the court in NLRB v.  Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952), summarized  several decisions as holding:


40
(1) A complaint, as distinguished from a charge, need not be filed and served within six months, and may therefore be amended after the six months.  (2) If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint) although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge and (b) occurred within six months before the filing of the charge.


41
Id. at 491.  The Board adopted this formulation of the  "closely related" test in decisions such as Redd-I, Inc., 290  N.L.R.B. 1115, 1118 (1988).  Later Board decisions, such as  Nickles Bakery, broke the "closely related" test down into  three parts:


42
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.


43
Nickles Bakery of Indiana, 296 N.L.R.B. 927, 928 (1989).


44
The most important thing to notice about Nickles Bakery is  that in reformulating the test, the Board dropped out the  requirement of § 10(b), as set forth in Dinion Coil Co. and  the earlier cases, that the allegations added to the complaint must concern unfair labor practices occurring within six  months of the charge.  Nonetheless, I believe that it is  necessary for this requirement to be satisfied in each case. The filing of the charge serves to toll the six-month limitation  period.  See Kelly-Goodwin Hardware, 269 N.L.R.B. 33, 3637 (1984).  It follows that alleged illegalities occurring more  than six months before the charge should be barred.  In view  of § 10(b) the Board may not reach back years before the  charge is filed and add unfair labor practices to the complaint  even if they are "closely related" to those alleged in the  charge.  The Board has not been entirely clear about this and  we have compounded the confusion by expressing approval of  the Nickles Bakery test in Drug Plastics & Glass Co. v.  NLRB, 44 F.3d 1017, 1018-19 (D.C. Cir. 1995), even though  Drug Plastics did not deal with the limitations proviso of  § 10(b).2


45
Our latest pronouncement on § 10(b) is Pioneer Hotel, Inc.  v. NLRB, 182 F.3d 939, 944 (D.C. Cir. 1999), which plays a  prominent role in Judge Garland's dissent.  One cannot tell  from reading our opinion in Pioneer Hotel, Inc. (or the  Board's) when the charge in that case was filed.  But the  administrative record indicates that the unfair labor practice  added to the Board's complaint occurred less than six months  from the filing of the original charge.  This at least makes the  case consistent with the Supreme Court's holding in Local  Lodge No. 1424, Int'l Ass'n of Machinists v. NLRB, 362 U.S.  411 (1960), commonly known as Bryan Manufacturing, a case  the Board has too frequently ignored in recent years.


46
The facts of Bryan Manufacturing are important.  A union  and an employer executed a collective bargaining agreement  on August 10, 1954, even though the union did not represent a  majority of the employees.  Contained in the agreement was  a union security clause--that is, a clause requiring all employees to join the union.  Under Board law, it was "an unfair  labor practice for an employer and a labor organization to  enter into a collective bargaining agreement which contains a  union security clause, if at the time of original execution the  union does not represent a majority of the employees in the  unit."  362 U.S. at 413.  Charges filed with the Board about a  year after execution of the agreement alleged the union's lack of majority status in August 1954 "and the consequent illegality of the continued enforcement of the agreement."  Id. at  414.  Complaints to this effect followed.  The Court held that  the proviso in § 10(b) barred the complaints.  Although execution of the agreement was itself an unfair labor practice, it  occurred more than six months before the charges.  As to the  continuing enforcement of the union security clause, the only  way to show its illegality was to prove that the union lacked a  majority when it executed the agreement.  This meant that  the charges were, in the language of the proviso, "based"  upon an unfair labor practice thattook place more than six  months before the charges were filed.  In so holding the  Court quoted with approval the dissenting opinion of one  Board member recognizing that " 'the continuing invalidity of  the agreement is directly related to and is based solely on its  initial invalidity,' " 362 U.S. at 423 (italics added).  To the  Court in Bryan Manufacturing, the direct relationship between the time-barred allegation and the timely allegation  was a reason for barring the complaint.


47
In light of the language of § 10(b) and the need to adhere  to the Supreme Court's parsing of that language in Bryan  Manufacturing, I believe the Board errs whenever it permits  complaints to go forward on allegations regarding unfair  labor practices that occurred more than six months before the  charge.  Does that describe this case?  Not necessarily.  The  original charge alleging a single act of unlawful discharge in  August 1993 was filed October 21, 1993.  An amended charge  alleging additional unfair labor practices in May and June of  1993 was filed on March 3, 1994.  These additional allegations  fell outside the six-month time limit imposed by § 10(b), and  were therefore barred unless the amended charge related  back to the original charge, much as an amended pleading in  civil litigation may relate back to the original pleading pursuant to Rule 15(c) of the Federal Rules of Civil Procedure.3  See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,  149-50 n.3 (1984) (per curiam).  So long as the Board's  closely related test is kept within proper bounds,4 it may  serve the same function as Rule 15(c) with respect to  § 10(b)'s six-month limitation period.  I agree with Judge  Henderson that in this case, the Board's test does not save  the untimely charge.



Notes:


1
 For ease of reference, § 10(b) is set forth in full:
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.  Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon.  The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint.  In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony.  Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of Title 28.
29 U.S.C. § 160(b).


2
 Drug Plastics dealt instead with the jurisdictional condition  portion of the statute. The Board's complaint in Drug Plastics, filed  on September 30, 1991, alleged unfair labor practices in February,  April and June, 1991.  The charge upon which the complaint was  based was filed on July 15, 1991.  The charge alleged only one  instance of an unlawful discharge and did not mention the other six  allegations eventually included in the complaint.  See Drug Plastics,  44 F.3d at 1018-19.  Three of the new allegations involved activities  within six months of the July 15 charge and three did not.  See id.  at 1019.  While the court could have held that some of the complaint allegations were time-barred by § 10(b), it did not.  Instead,  it held that the Board lacked jurisdiction over all six additional  unfair labor practices alleged in the complaint because it was  "unable to connect the allegations in its complaint with the charge  allegation."  See id. at 1022.  The court does mention the six-month  limitation in the last line of its opinion, but only to note that the  "period of § 10(b) has since elapsed," suggesting that any attempt  to amend the complaint would fail because there was an inadequate  factual nexus in the original charge.  Id.


3
 Rule 15(c) permits an amended pleading to relate back to the  date of the original pleading if the claim or defense in the amended  pleading "arose out of the conduct, transaction, or occurrence set  forth or attempted to be set forth in the original pleading."  Fed. R.  Civ. P. 15(c). The rule liberalized the practice under common law,  reflecting the notice role played by pleadings and the interest in  resolving claims on their merits rather than on the basis of technicalities.  See 6 Charles Alan Wright et al., Federal Practice and  Procedure § 1471 (1990).


4
 The reasons Congress inserted the six-month limitations should  guide the Board.  Like other statutes of limitations, see 3M Co. v.  Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994), the § 10(b) proviso is  designed to bar the consideration of events "after records have been  destroyed, witnesses have gone elsewhere, and recollections of the  events in question have become dim and confused."  Bryan Mfg.,  362 U.S. at 419 (quoting H.R. Rep. No. 80-245 at 40 (1947)). Statutes of limitation also provide a measure of repose, a point at  which an entity is free to make plans without the specter of legal  proceedings.  See 3M, 17 F.3d at 1453.  This aspect of repose is  important in labor relations:  the § 10(b) proviso promotes labor  peace by "stabiliz[ing] existing bargaining relationships."  Bryan  Mfg., 362 U.S. at 419.



48
Garland, Circuit Judge, concurring in part and dissenting  in part:


49
I agree that substantial evidence supports the Board's  finding that Ross Stores discharged an employee because of  his support for the union.  I respectfully dissent, however,  from the conclusion that the Board's other finding--that Ross  unlawfully admonished the same employee for soliciting for  the union--must be set aside because the admonishment is  not "closely related" to the discharge.


50
As the court acknowledges, section 10(b) permits prosecution of an untimely charge if it is "closely related" to a timely  charge.  See Op. at 5;  see also Pioneer Hotel, Inc. v. NLRB,  182 F.3d 939, 944 (D.C. Cir. 1999);  Parsippany Hotel Mgmt.  Co. v. NLRB, 99 F.3d 413, 417 (D.C. Cir. 1996);  Drug  Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1021 (D.C. Cir.  1995).  It is true that this circuit has previously held this test  to require more than that the incidents arise during the same  anti-union campaign, see Drug Plastics, 44 F.3d at 1021  (relying on Nippondenso Mfg. U.S.A., Inc., 299 N.L.R.B. 545  (1990)), and more than that they be close in time and involve  the same employer and plant, see id. at 1020-21.  But there is  considerably more than that here.1


51
The Board's opinion makes clear that the two allegations  are closely related.  Indeed, the Board expressly used the  earlier incident--in which David Jumper's supervisor caught  him posting union literature and admonished him against  doing so--as part of the basis for its finding that Jumper was  discharged because of anti-union animus.  See Ross Stores,  329 N.L.R.B. No. 59, at 2, 4 (1999).  The incident underlying  the untimely charge (the unlawful admonishment) was thus  closely related to the incident underlying the timely charge (the unlawful discharge):  the former provided, and proved,  the motive for the latter.2


52
That factual connection puts this case on a par with Pioneer Hotel, Inc. v. NLRB, in which we recently rejected the  argument that an amended complaint was insufficiently related to an original allegation under section 10(b).  See 182 F.3d  at 945.  In Pioneer Hotel, the original allegation was that the  employer discharged an employee for supporting the union. The amended allegation was that the employer had previously  fired the same employee's supervisor for refusing an order to  fire the employee for his union support.  The two allegations  were factually connected, we held, because the earlier incident was "[p]art of the evidence that Pioneer fired [the  employee] for union activism."  182 F.3d at 944-45.  Just as  the earlier incident in Pioneer Hotel was evidence that the  employee was fired for union activism rather than as part of a  neutral corporate restructuring, the earlier incident in this  case was evidence that Ross Stores fired Jumper because of  animus rather than absenteeism.  See also NLRB v. Fant  Milling Co., 360 U.S. 301, 304 & n.5 (1959) (holding that an  untimely allegation of an unlawful unilateral wage increase  was sufficiently related to a timely refusal-to-bargain charge,  because the wage increase "largely influenced" the Board's  finding that an unlawful refusal to bargain had occurred).


53
That factual connection also distinguishes this case from  Drug Plastics & Glass Co. v. NLRB.  There, in concluding  that untimely allegations of discriminatory statements were  unrelated to a timely allegation of unlawful discharge, the  court noted that the General Counsel's complaint made "no  mention whatsoever" of the discharged employee "except in  the single allegation" relating to the discharge.  44 F.3d at  1020.  Here, by contrast, the complaint expressly noted that  Jumper was the target of the unlawful admonition against  soliciting for the union, and that Jumper was also the employee who had been unlawfully discharged.  Complaint pp 5, 7; see also FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 942 n.5  (4th Cir. 1995) (distinguishing FPC from Drug Plastics on the  ground that, unlike the untimely allegations in Drug Plastics,  those in FPC directly involved the same employees as did the  original charge).3  Moreover, the Board held that the admonition allegation was closely related to the discharge allegation  because it "alleged a coercive act manifesting specific animus  against Jumper."  Ross Stores, 329 N.L.R.B. No. 59, at 2  (emphasis added);  see also id. at 3 (noting that relatedness  was established by the need to investigate Ross' "prior indications of animus toward the organizing campaign and in  particular its dealings with Jumper regarding that campaign") (emphasis added);  id. at 4 (stressing that "the overbroad oral no-solicitation rule" was "dictated directly to  Jumper").


54
In sum, because the two charges at issue in this case are  closely related, and are not bound together simply by "the  coincidence of the two separate violations [occurring] during  the same organizing campaign," Op. at 10, the admonition  allegation is not time-barred under section 10(b).



Notes:


1
 Because, as discussed below, the Board's decision can be sustained under the test approved in Drug Plastics, there is no need to  consider whether the Board could adopt a more expansive test by  overruling Nippondenso, see Op. at 7, the NLRB decision upon  which Drug Plastics relied.  See Drug Plastics, 44 F.3d at 1021.


2
 Although the court recognizes that "it is eminently reasonable to  assume that high-level corporate managers speak on behalf of the  company when they express anti-union animus," Op. at 9 n.7  (quoting Parsippany Hotel Mgmt., 99 F.3d at 423-24), the court  expresses doubt about attributing the supervisor's (Simondi's) admonishment to the company--apparently because it believes Simondi was not a sufficiently "high-level" manager.  Op. at 11 n.8;  see  id. at 8-9 & n.7.  That rationale is inconsistent with the fact that  Simondi was Ross' operations manager.  Ross Stores, 329 N.L.R.B.  No. 59, at 3.  Moreover, as the court notes, Op. at 11 n.8, that  rationale is foreclosed from our consideration because Ross Stores  never challenged the attribution.  See Parsippany Hotel Mgmt., 99  F.3d at 418 (holding that court will not consider argument not  raised in petitioner's opening brief).


3
 Jumper's initial, timely-filed charge can also fairly be read as  encompassing the solicitation incident.  In that charge, Jumper  complained that he had been dismissed because of his "union  involvement."  Charge Against Employer p 2 (Oct. 21, 1993).  That  union involvement surely included the solicitation incident, in which  Jumper was admonished after his supervisor discovered him posting union literature in the men's room. See Fant Milling, 360 U.S.  at 307 (1959) ("A charge filed with the Labor Board is not to be  measured by the standards applicable to a pleading in a private  lawsuit.").


