Ross Stores, Inc. v. National Labor Relations Board

GARLAND, Circuit Judge, concurring in part and dissenting in part:

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.

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 672; 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., *680Inc., 299 N.L.R.B. 545, 1990 WL 133492 (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

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 WL 820559 (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

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. Font Milling Co., 360 U.S. 301, 304 & n. 5, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (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).

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 ¶¶ 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 *681directly 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 over-broad oral no-solicitation rule” was “dictated directly to Jumper”).

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 674, the admonition allegation is not time-barred under section 10(b).

. 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 673, the NLRB decision upon which Drug Plastics relied. See Drug Plastics, 44 F.3d at 1021.

. 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 674 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 675 n. 8; see id. at 673-74 & 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 675 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).

. 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 ¶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, 79 S.Ct. 1179 (1959) (“A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit.”).