Safety-Kleen Corp.

National Labor Relations Board - Board Decisions

May 23, 1986

279 N.L.R.B. 1117 (N.L.R.B. 1986)

SAFETY-KLEEN CORP
Safety-Kleen Corp . and Arthur Wilson . Case 9-CA-
22287
23 May 1986
DECISION AND ORDER
BY MEMBERS DENNIS, BABSON, AND
STEPHENS
On 12 December 1985 Administrative Law
Judge Richard L. Denison issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an an-
swering brief and a cross-exception and brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER DENNIS, dissenting.
Contrary to the majority, I would not, on the
facts before us at this point in the proceedings, find
that the charge was untimely filed and dismiss the
complaint, but would instead remand the case to
the judge to hear the remainder of the evidence,
make credibility findings, and issue an appropriate
decision.
The judge dismissed the complaint on the Re-
spondent's motion made during the hearing at the
end of the General Counsel's case but before the
Respondent presented its evidence. For purposes of
ruling on the motion, the judge made no credibility
findings adverse to the General Counsel's wit-
nesses . Thus, the facts on which we must consider
the motion are based on the testimony of the Gen-
eral Counsel's witnesses taken as true.
According to these facts, the Respondent mistak-
enly believed that in early October 1984 employee
Arthur Wilson was instigating a union campaign
and fired him on that basis. The Respondent manu-
i Contrary to the dissent, we believe that Charging Party Wilson was
on notice of facts that created a suspicion sufficient to warrant requiring
him to file his unfair labor practice charge within 6 months of his dis-
charge to escape the 10(b) bar Wilson knew that he had discussed unions
with other employees twice during his tenure with the Respondent, that,
according to one employee, he "should not mention unions" around the
Respondent 's premises, and, finally , that his discharge for not making
sales quotas was oddly timed-coming right after he had completed a
training seminar to improve his performance and before he had an oppor-
tunity to prove what he could do with that training
1117
factured a credible pretext for the discharge, first
issuing a written warning to Wilson for low sales,
then informing him at his discharge that he was
being terminated for not meeting his sales quotas,
which in fact he had not met. Wilson was not a
union activist, and had no reason to suspect the Re-
spondent's mistaken belief to the contrary until
April 1985 when his former supervisor told him the
Respondent's motive for discharging him. Nor did
Wilson ever have reason to suspect that the Re-
spondent fired him for protected conduct in which
he actually engaged, i.e., his two brief remarks
about unions in conversations with fellow employ-
ees. In the first conversation 6 months before his
discharge Wilson told an employee that there was
a union at his former employer. In the second con-
versation, 1 month before his discharge, Wilson
stated to two employees that a union was a good
idea because if the employees had one, the Re-
spondent might not be able to fire employees as
quickly as in the past. These two remarks lacked
any apparent relation to the timing of the dis-
charge. Indeed, the Respondent fired Wilson be-
cause it thought he was instigating a union cam-
paign in early October 1984, not because of isolat-
ed union-related remarks 1 month and 6 months
earlier. Thus, Wilson had no reason to suspect the
Respondent fired him for union conduct.
On these facts, I would find that the 6-month
limitations period of Section 10(b) did not begin to
run until Wilson's meeting with his former supervi-
sor in late April 1985 when Wilson first had reason
to suspect his discharge violated the Act. Accord-
ingly, I would remand this proceeding to the judge
to hear the Respondent's witnesses and the remain-
der of the evidence. The judge would then be free
to make credibility resolutions and reconsider the
10(b) issue, or decide the case on the merits.
David L. Ness, Esq., for the General Counsel.
Douglas A. Darch, Esq., and Valerie J. Hoffman, Esq.
(Seyfarth, Shaw, Fairweather & Geraldson), of Chicago,
Illinois, for the Respondent.
Arthur Wilson, on his own behalf
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
The trial of this case opened in Cincinnati, Ohio, on 30
October 1985. The original charge in Case 9-CA-22287
was filed by Arthur Wilson, an individual , on 13 August
1985, alleging violations of Section 8(a)(1) and (3) of the
Act. The complaint, issued 24 September 1985, alleges
that in April or early May 1985, Wilson first learned
from his former supervisor, who had discharged him on
9 October 1984, that the reason for the discharge was
Wilson's union membership, sympathies, and activities.
279 NLRB No. 159
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 23 October 1985 the Respondent filed a Motion for
Summary Judgment and a memorandum of law with the
Board, on the basis that the charge is untimely under
Section 10(b) of the Act. The General Counsel opposed
the motion, asserting "that there are genuine and materi-
al issues of fact which require development and resolu-
tion at a hearing." The Board accepted this representa-
tion, denied the motion, and referred the case for hear-
ing.
On 30 October, following the completion of the Gen-
eral Counsel's case, the Respondent moved for dismissal
on the ground that the charge was untimely under Sec-
tion 10(b). The parties argued orally. I then set a time for
filing briefs and continued the case indefinitely pending
consideration of the 10(b) issue, following which either a
decision would be issued dismissing the case as untimely
under Section 10(b), or an order would be issued direct-
ing resumption of the hearing.
On the entire record, including my observation of the
witnesses and consideration of the briefs, filed 18 No-
vember 1985, I make the following
FINDINGS OF FACT'
1. JURISDICTION
Based on the allegations in paragraph 2 of the com-
plaint, as amended , admitted in Respondent's answer, as
amended , I find that the Respondent is, and has been at
all times material , an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
. II. SUPERVISORY STATUS
At the hearing Respondent stipulated and accordingly
amended its answer to admit that Charles Phillips was, at
all times material, until 15 July 1985 a supervisor within
the meaning of Section 2(11) of the Act. Likewise, the
supervisory status of Tom Dutcher, at all times material,
was also admitted.
III. THE ISSUE OF WHETHER THE COMPLAINT IN THIS
MATTER IS BARRED BY THE 6-MONTH LIMITATION
PERIOD IMPOSED BY SECTION 10(B) OF THE ACT
For the limited purpose of considering Respondent's
motion to dismiss at the end of the General Counsel's
evidence, I must construe that evidence in the manner
most favorable to the General Counsel. Thus, I have
made no adverse credibility findings, and have, for this
purpose alone, accepted the testimony of the General
Counsel's witnesses as true. Accordingly.
The Respondent is a Wisconsin corporation engaged in
the storage, sale, and distribution of industrial solvents
and cleaning products in various States, utilizing route
salesmen who drive company trucks and are paid a
salary plus commission. Arthur Wilson was hired as a
route salesman at the Company's Hamilton , Ohio loca-
tion on 26 March 1984, by Branch Manager Joe Win-
bingler. Wilson's duties were to service customers on his
route with Respondent's products, and to solicit and
' The hearing in this matter is closed
secure new business In this respect employees were ex-
pected to meet sales quotas. Employees who did not
meet these goals were discharged. Wilson testified that
throughout the period he worked for Safety-Kleen Corp.
he never made either the dollar sales quota or the quota
for the number of machines to be placed with customers.
During the first or second week of his employment,
Wilson engaged his fellow route salesman , Jerry Lan-
drum, in conversation about Wilson's previous experi-
ence. Wilson said there was a union at his previous place
of employment Landrum responded that Wilson should
not mention unions around there. In early September,
Wilson overheard Landrum and employee Tim Gibson
discussing unions in the salesroom, and Wilson volun-
teered that he thought a union was a good idea because
if they had one, the Company might not be able to fire
sales representatives as quickly as in the past. Wilson
never suggested that the employees contact any specific
union, nor did he initiate any organizing effort or ask
employees to sign authorization cards. He never dis-
cussed the Union with any supervisors or, to his knowl-
edge, engage in any conduct which, to his knowledge,
labeled him as a unionist in the eyes of company officials.
On 1, 2, and 3 October 1985, Wilson attended a sales
seminar conducted by Regional Manager Tom Dutcher.
Charles Phillips became branch manager at Hamilton in
July 1984. Late one evening in early October, according
to Charles Phillips, he received a telephone call from
Clyde Phillips, the Company's central division vice presi-
dent. Clyde told Charles he had learned from Regional
Manager Dutcher that there was union activity at Hamil-
ton, and Arthur Wilson was the instigator. He said he
did not want anyone bringing in cards, placing them on a
secretary's desk, and recognizing a union. Charles stated
he did not think Clyde's information was correct, but
promised to investigate.
Shortly thereafter, Charles Phillips received another
call from Regional Manager Dutcher, who insisted that
Wilson was trying to organize a union , and instructed
Phillips to get Wilson out of there as fast as possible, be-
cause Dutcher was receiving a lot of "flak" from top
management about the situation at Hamilton. Frances
Rine , Charles Phillips' secretary, testified that she an-
swered the telephon when Dutcher called, listened to the
conversation, and heard Dutcher's instructions "to fire
Wilson because he was trying to form a union."2
On Monday, 8 October 1984, Charles Phillips issued
Wilson a written warning for low sales, which Wilson
read and signed. On Tuesday, Phillips told Wilson he
would ride with him on his route on Wednesday to help
him with his sales. On 9 October Dutcher and Clyde
Phillips came to the Hamilton office and demanded to
know if Wilson had been fired Charles Phillips answered
that Wilson was still employed and asked what he should
use as a reason to discharge Wilson. Dutcher responded
that anyone could be fired for low production, and
2 Rine also testified that during a phone conversation with Clyde Phil-
lips in late December 1984 or early January 1985, Phillips asked if there
had been any more union talk after Wilson's discharge Rine responded
that there had been no further union talk , but the Company had fired the
wrong man Phillips observed, "Well, at least the talk has stopped "
SAFETY-KLEEN CORP.
therefore that reason should be used. Charles Phillips tes-
tified that at this point Clyde Phillips became irate and
retorted, "Get the g- d- s.o.b. out of here as soon as
possible." Dutcher underscored the remark by stating
that Phillips should "get Wilson out of the way fast "
About 8 30 to 9 a.m. on 10 October 1984, Charles Phil-
lips approached Wilson in the truck parking area adja-
cent to the Hamilton building and asked Wilson for his
keys Wilson thought Phillips was preparing to accompa-
ny him on the route and asked if Phillips was going to
drive This impression was dispelled when Phillips said
that Wilson was fired. Wilson asked what he would tell
the unemployment people, and Phillips answered that
Wilson had not been making his sales quotas. Wilson tes-
tified that neither he nor Phillips made any reference to
unions or the existence of any other reason for Wilson's
discharge Wilson testified that he did not think at the
time that there were any other reasons because his sales
quotas had been consistently low. Wilson volunteered
that he had been warned 3 or 4 months before by Acting
Manager George Mortimer that "the company's wasn't
going to carry any dead weight," when two other em-
ployees with low sales had been terminated Thus,
Wilson left the Respondent's employment without any
protestations. He testified, however, he remarked that it
seemed strange to him that he was terminated before he
had an opportunity to put into practice what he had
learned in the training seminar intended to improve his
performance.
During the course of the winter of 1984-1985, Wilson
returned to Phillips' office on at least two occasions
seeking reemployment because his unemployment was
about to expire. Each time Phillips refused without ex-
planation However, Wilson received a somewhat differ-
ent reception on his final visit to see Phillips at the end
of April 1985. Although Phillips once again refused to
hire Wilson, he invited him into his office and stated that
he would write on a piece of paper the reason why he
had been released. Phillips wrote the words "the union"
on a piece of paper and handed the paper to Wilson,
who said he did not understand. Phillips answered that
he could not say any more, or he would lose his job.
Wilson left and did not pursue this matter further until
he filed a charge in Case 9-CA-22287 on 13 August
1985, following a discussion with Phillips (about filing a
charge) shortly before Phillips was terminated by the
Company on 9 August.
Despite a failure to plead accordingly in the com-
plaint, or otherwise amend that document to conform
with his theory, the General Counsel contends that the
Respondent fraudulently concealed an essential element
needed to perfect Wilson's case, i.e., unlawful motiva-
tion, by telling him he was terminated for poor produc-
tion. Therefore, the 6-month limitation period of Section
10(b) of the Act should not begin to run until April 1985,
when Charles Phillips first revealed the true reason for
the discharge. Under these circumstances, Wilson's
charge, filed 13 August, is timely.
The Respodent argues that Section 10(b) has not been
tolled in this case, and that the Charging Party is pre-
cluded from proceeding on his charge by the limitation
proviso. I find merit to the Respondent's position.
Section 10(b) of the Act provides:
1119
. . . 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.
However, the running of the limitation period may be
tolled if the perpetrator of the unfair labor practice
fraudulently conceals the unlawful conduct so that the
discriminatee is not put on notice of the illegal activity.
In this case the unfair labor practice in question was Wil-
son's discharge. On 10 October 1984 Wilson was told by
Phillips that he was discharged. He did not disagree with
the reason given, his failure to meet the sales quotas, be-
cause he knew he would never meet the quotas. He did
observe that the timing of his termination seemed
strange, timed as it was so soon after the training pro-
gram designed to help him improve. Nevertheless, he ne-
glected to initiate a Board investigation of this apparent
inconsistency by filing a charge at that time. He was not
told the purported real motive for his firing until late
April 1985. Even then he delayed filing a charge until 13
August 1985, far beyond 6 months from the date of his
discharge. I find that the limitation period of Section
10(b) began to run on 10 October 1984, the date Wilson
was told he was discharged. United Merchants & Mfgrs.,
276 NLRB 345 (1985). The fact that he may not have
been told the true reason, all the reasons, or the compel-
ling reason for his release is insufficient to toll the run-
ning of the limitation period. Thousands of timely
charges have been filed with the Board's Regional Of-
fices, thousands of investigations have been conducted,
and thousands of complaints have been issued, litigated,
and employees reinstated when the timing of a discharge,
or other suspicious circumstantial evidence short of an
outright confession, indicated that the reason given the
employee-activist was pretextual. Wilson chose not to
pursue this available course; and, in my view, is now
precluded from doing so. To hold otherwise is to destroy
Section 10(b) in any case dependent on evidence of
motive, when such evidence is produced for the first
time at any later time beyond 6 months after the unlaw-
ful act. Likewise, I find that the fraudulent concealment
exception is inapplicable because the mere giving of a
pretextual or exculpatory reason, or the failure to reveal
the true reason, or all the reasons for unlawful conduct
does not, standing alone, constitute fraud. To reach the
opposite result would virtually require the Respondent to
confess the discriminatory motive at the time of the un-
lawful conduct or be guilty of fraudulent concealment,
thereby tolling the 10(b) period until such time as the
true motive came to light, whenever that might be. I am
satisfied that this is not what Congress intended by plac-
ing Section 10(b) in the statute. The Board's decisions
support this view. I find that the charge in this matter is
untimely. United Merchants, supra; Winer Motors, 265
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 1457, 1458 fn. 12 (1982), Al Bryant, Inc., 260 On these findings of fact and conclusions of law and
NLRB 128, 135 fn. 19 (1982); Don Burgess Construction on the entire record , I issue the following recommend-
Co., 227 NLRB 765 (1977). ed3
CONCLUSIONS OF LAW ORDER
1. The Respondent is an employer engaged in com- The complaint is dismissed.
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The charge in Case 9-CA-22287, filed 13 August 3 If no exceptions are filed as provided by Sec 102 46 of the Board's
1985, was untimely filed and is barred from further proc-
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
essing by the 6-month limitation provision of Section Board and all objections to them shall be deemed waived for all pur-
10(b) of the Act. poses