NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,480, FPC HOLDINGS, INC. dba FIBER PRODUCTS and DAVID R. DECARLO and ROBERT ZEBACK., (Sep. 16, 1994), National Labor Relations Board, (Sep 16, 1994)

FPC HOLDINGS, INC. dba FIBER PRODUCTS and DAVID R. DECARLO and ROBERT ZEBACK.

314 NLRB No. 185.Case Nos. 5-CA-23097 and -23119. September 16, 1994 Thomas R. Wilks, Administrative Law Judge..

Before Gould, Browning and Cohen.

Carol A. Baumerich, for General Counsel. Frank S. Astroth (Astroth, Serotte & Rockman), Baltimore, Maryland, for Respondent.

Board Procedure--Amendments of Complaints--Statute of Limitations.--Amendments to an unfair labor practice charge, submitted by the General Counsel on the first day of an NLRB hearing, were sufficiently closely related to an original charge as to survive a defense by an employer that the amendments were untimely. The amendments involved the same theory of unlawful retaliatory motivation for adverse employment actions, the amended allegations involved earlier events in the same factual sequence as the original charge and the employer would be expected to raise similar defenses to the former and amended charges. Section 10(b).

Back reference: ¶5560.571.

Interference--Evidence of Union Animus--Reprimands and Layoffs.--An employer interfered with its employees’ right to freely select a bargaining representative by issuing reprimands to two employees and, thereafter, scheduling them for permanent layoff at a future date, due to their concerted protected activities on behalf of a union. The employer demonstrated union animus through its actions and its motivation for the discipline of the employees was found to be contrived and mendacious. Section 8(a)(1).

Back reference: ¶3710.125.

Discrimination--Pretextual Nature of Reason--Union Activists.--By terminating the employment of two union activists because of their prior concerted activities on behalf of the union, an employer discriminated against them. The employer demonstrated animosity toward the union, its reasons for terminating the employees was found to be pretextual and the employer failed to prove that it would have taken the same actions absent the employees’ union activity. Section 8(a)(3).

Back reference: ¶4095.1745.

From Text of Board’s Decision

This case [1] presents the issues whether the judge correctly found that: Section 10(b) of the Act did not bar amendment of the complaint at the hearing to allege violations of Section 8(a)(1) of the Act; the Respondent violated Section 8(a)(1) by several adverse actions taken against the Charging parties because they engaged in protected concerted activities and the Respondent violated Section 8(a)(3) and (1) of the Act by terminating the Charging Parties both for engaging in union activities and for engaging in other protected concerted activities.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, and to adopt the recommended Order. Although we agree with the judge’s rejection of the Respondent’s 10(b) defense, we find that this issue warrants further explanation in this decision.

The original unfair labor practice charges, filed on October 26 and November 10, 1992, alleged that the Respondent violated Section 8(a)(3) by terminating David DeCarlo and Robert Zeback on October 5, 1992, because of their union activities. The complaint amendments, which the General Counsel offered in a motion to the judge on August 3, 1993, the first day of the hearing, allege that on various dates in May and June 1992, the Respondent violated Section 8(a)(1) by several pretermination acts of reprisal against the two employees because they engaged in protected concerted activities. The amendments also allege retaliation against protected concerted activities, in addition to union activity, as an unlawful reason for discharging the employees.

The Respondent contends that Section 10(b) bars litigation of the amended complaint allegations of 8(a)(1) violations because they are not “closely related” to the charge allegations of 8(a)(3) violations. In addition, the Respondent challenges the judge’s finding that it unlawfully appraised and reprimanded Zeback “in May 1992”; it argues that this date is outside the 6-month limitation period, because Zeback’s charge was not filed until November 10, 1992.

Redd-I, Inc., [1988-89 CCH NLRB ¶15,098] 290 NLRB 1115 (1988), identifies factors relevant to a determination whether certain otherwise untimely allegations can be added to a complaint based on their close relationship to a pending timely filed charge. Under this “closely related” test, the Board will examine whether the otherwise untimely complaint allegations (1) involve the same legal theory as allegations in the timely filed charges, (2) arise from the same factual circumstances, and (3) entail the same or similar defenses by the Respondent. The judge in this case referred only to the final factor in finding that the additional 8(a)(1) allegations were closely related to the original and timely 8(a)(3) discharge allegations. In light of the Respondent’s exceptions to his analysis, we will assess each of the factors in the Redd-I test. [2]

First, we find that the additional 8(a)(1) allegations involve the same theory of unlawful retaliatory motivation for adverse employment actions as the original 8(a)(3) discharge allegations. All allegations relate to the same alleged animus and pattern of reprisals against the Charging Parties for their perceived roles in encouraging concerted activities, untimely including union organizing activity, among the Respondent’s drivers. [3] Seconds, as indicated above, we find that 8(a)(1) allegations involve earlier events in the same factual sequence as the 8(a)(3) termination allegations. Finally, we agree with the judge that the Respondent would be expected to, and did, raise similar defenses to all allegations. Accordingly, we find in Redd-I that the amended complaint allegations are not barred by Section 10(b).