Dun & Bradstreet Software Services

National Labor Relations Board - Board Decisions

Apr 27, 1995

317 N.L.R.B. 84 (N.L.R.B. 1995)

84
317 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dun & Bradstreet Software Services, Inc. and
Christine Kelley. Case 1–CA–30990
April 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed by Christine Kelley on October
6, 1993, and amended on July 7, 1994, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 1, issued a complaint and
notice of hearing on July 20, 1994, against Dun &
Bradstreet Software Services, Inc., alleging that the
Respondent violated Section 8(a)(1) of the National
Labor Relations Act. The Respondent filed an answer
admitting in part, and denying in part, the complaint
allegations, and raising an affirmative defense.
On October 5, 1994, the Respondent filed with the
Board a motion to dismiss or Motion for Summary
Judgment, with exhibits, contending that the complaint
should be dismissed because the underlying charge, al-
though filed on October 6, 1993, was not served on the
Respondent until October 13, 1993, which is outside
the 6-month time period specified by Section 10(b) of
the Act. On October 17, 1994, the General Counsel
and the Charging Party filed briefs in opposition to the
Respondent’s motion, and on October 21, 1994, the
Respondent filed a reply brief. On October 31, 1994,
the Board issued an order transferring proceeding to
the Board and Notice to Show Cause why the Re-
spondent’s motion should not be granted.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
Ruling on the Motion for Summary Judgment
The complaint alleges that on or about April 2,
1993, through April 12, 1993, the Respondent’s em-
ployee, Christine Kelley, engaged in concerted activi-
ties with other employees for the purpose of mutual
aid and protection by: (1) discussing the impact on
working conditions of the Respondent’s potential
change of the Framingham facility’s cafeteria vendor;
(2) complaining to the Respondent on behalf of fellow
employees regarding the potential change; and (3) with
other employees, preparing, circulating and distributing
petitions for employees to sign relating to that poten-
tial change. The complaint further alleges that on April
8, 1993, Branch Manager Madeline Osit told other em-
ployees that she wanted to discharge all employees in-
volved with the petition. Finally, the complaint alleges
that on April 12, 1993, the Respondent discharged
Kelley for her protected concerted activities and that
the Respondent’s Philadelphia branch manager, David
Surber, told employees that Kelley had been dis-
charged because of her involvement with and circula-
tion of the petition.
In its answer, the Respondent admits that it termi-
nated Kelley on April 12, 1993, but denies that the dis-
charge violated Section 8(a)(1). Further, the Respond-
ent asserts as an affirmative defense that the Board
lacks jurisdiction to proceed in this matter because the
complaint is barred as untimely pursuant to Section
10(b) of the Act. In this regard, the Respondent states
that Kelley alleged in her amended charge that she was
terminated on April 12, 1993, and that the General
Counsel admits, in paragraph 1(a) of the complaint that
a copy of the original unfair labor practice charge in
this proceeding was not served on the Respondent until
October 13, 1993, 1 day after the expiration of the
10(b) period. Accordingly, the Respondent contends
that the Charging Party failed to serve the charge with-
in the 6-month period as required by the Act.
In its motion to dismiss the Respondent submits that
the ‘‘allegations of the Complaint, as admitted by [the]
Respondent, demonstrate that the Board lacks jurisdic-
tion to conduct a hearing in this matter.’’ The Re-
spondent contends that it is undisputed that the Charg-
ing Party failed to effectuate timely service of the
charge on the Respondent within the 10(b) period as
required by the statute. The Respondent further con-
tends that because Section 102.14 of the Board’s Rules
and Regulations makes clear that it is the charging par-
ty’s responsibility to serve the charge on the respond-
ent, the Charging Party herein ‘‘cannot complain that
she is being punished for administrative delay in mail-
ing the charge.’’ Further, the Respondent contends that
there is no allegation, nor is there any evidence, that
the Respondent engaged in any conduct that frustrated
timely service, but rather the Charging Party simply
failed to mail the original charge to the Respondent
within the statute of limitations period. Finally, the Re-
spondent contends that the fact that the Charging Party
was represented by counsel within the applicable 6-
month period precludes her claims of equitable estop-
pel.
The General Counsel and the Charging Party con-
tend that, in view of the timely filed charge with the
Board, the August 30, 1993 letter sent to the Respond-
ent by Kelley’s attorney should be deemed a substitute
for the service of the charge on the Respondent since
the letter unambiguously notified the Respondent of
Kelley’s claim under Section 8(a)(1) of the Act. The
General Counsel and the Charging Party assert that the
letter specifically identified the statutory basis of the
claim and set forth in detail the factual basis of
Kelley’s claim, and, therefore, complied with the serv-
ice requirements of Section 10(b). The General Coun-
sel and the Charging Party further contend that equi-
85DUN & BRADSTREET SOFTWARE SERVICES
1 The reliance of the General Counsel and the Charging Party on
the Board’s decisions in Freightway Corp., 299 NLRB 531 (1990),
and Buckeye Plastic Molding, 299 NLRB 1053 (1990), is misplaced.
In both of those cases, unlike here, the statutory requirement of serv-
ice on the respondents within the 6-month limitations period was sat-
isfied—in the former case by an unsigned copy of the charge and
in the latter case by service of the complaint. Here, however, both
the charge and the complaint were served on the Respondent more
than 6 months after the alleged unlawful discharge.
2 Similarly, even if the Charging Party delayed filing a charge at
the request of the Respondent, the Respondent in no way prevented
the Charging Party from serving the charge, which was timely filed,
within the limitations period.
table tolling of the statute of limitations period is justi-
fied because (1) Kelley detrimentally relied on the ad-
vice of the Region’s information officer that the Re-
gional Office would serve the charge in a timely man-
ner; (2) the Respondent suffered no prejudice; and (3)
there are no legal requirements that mandate a dismis-
sal of the charge as a result of the Region’s service of
the charge 6 months and 1 day after the alleged unfair
labor practice.
The Charging Party additionally asserts that the fil-
ing of the charge was delayed at the Respondent’s re-
quest, and, therefore, that the Respondent should be es-
topped from taking advantage of the delay it sought.
The Charging Party also argues that the goals underly-
ing Section 10(b) have been met despite the 1-day
delay and that to dismiss the charge as time-barred,
given the circumstances, would ‘‘elevate form over
substance.’’
We find, in agreement with the Respondent, that the
complaint must be dismissed. Section 10(b) provides
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.’’ (Emphasis added.) Section 102.14 of
the Board’s Rules and Regulations requires that the
charging party be responsible for the timely and proper
service of a copy of the charge on the person against
whom such charge is made. The rule further provides
that ‘‘the Regional Director will, as a matter of course,
cause a copy of such charge to be served on the person
against whom the charge is made, but he shall not be
deemed to assume responsibility for such service.’’
Therefore, Section 10(b) of the Act and Section 102.14
of the Board’s Rules and Regulations make clear that
it is the charging party’s obligation to effectuate serv-
ice on the respondent within the 10(b) period. In the
instant case, however, it is undisputed that the unfair
labor practice charge was not served on the Respond-
ent until October 13, 1993, 6 months and 1 day after
the alleged unlawful discharge, even though the charge
was timely filed on October 6, 1993.
Since the addition of the 10(b) proviso language by
Congress in the 1947 Taft-Hartley amendments, the
Board has consistently held that, absent the existence
of a properly served charge, a respondent will not be
liable for conduct occurring more than 6 months ear-
lier. Old Colony Box Co., 81 NLRB 1025, 1027
(1949); Erving Paper Mills, 82 NLRB 434, 435
(1949); Cathey Lumber Co., 86 NLRB 157, 162–163
(1949), enfd. 185 F.2d 1021 (5th Cir. 1951), vacated
on other grounds 189 F.2d 428 (5th Cir. 1951);
Luzerne Hide & Tallow Co., 89 NLRB 989, 1004
(1950); Koppers Co., 163 NLRB 517 (1967); and
Ducane Heating Corp., 273 NLRB 1389, 1391 (1985).
See also West v. Conrail, 481 U.S. 35, 36–38 (1987).
As the Board explicitly stated in Koppers, ‘‘In each
case, the 6-month period is determined by the date of
the service of the charge. Thus, a day 6 months earlier
becomes the cutoff date and activities occurring before
such date may not be alleged as unfair labor prac-
tices.’’ 163 NLRB at 517.
It is thus clear from these cases that, absent some
special circumstance, the service of the instant charge
on October 13, 1993, precludes the General Counsel
from issuing a complaint alleging that the Respond-
ent’s discharge of Kelly on April 12, 1993, constituted
an unfair labor practice.1
Contrary to the contentions of the General Counsel
and the Charging Party, we find no special cir-
cumstances present in this case that would warrant a
conclusion that the statutory service requirement was
satisfied. Initially, we note that the General Counsel
and the Charging Party do not allege that the 10(b) pe-
riod should be tolled because the Respondent fraudu-
lently concealed the operative facts underlying the al-
leged violation or in any other way prevented the
Charging Party from reasonably discovering the opera-
tive facts regarding the alleged unlawful discharge.
Nor do they allege that the Respondent in any way at-
tempted to evade service or otherwise thwart the
Charging Party’s ability to timely serve the Respond-
ent. Rather, they allege that the 10(b) period should be
tolled because of the Charging Party’s August 30,
1993 letter to the Respondent putting the Respondent
on notice of the Charging Party’s allegation that
Kelley’s discharge violated Section 8(a)(1) of the Act
and that the Charging Party detrimentally relied on the
Regional Office’s erroneous advice regarding service
of the charge.
We find no merit in these contentions. Section 10(b)
does not require merely that a charging party put a re-
spondent on notice of the possibility that an unfair
labor practice charge might be filed. Rather, it requires
that a charge be filed and served within the 6-month
period after the alleged unlawful conduct. Thus, the
August 30, 1993 letter fails to satisfy the statutory re-
quirements.2
Further, while we regret that the Charging Party
may have received erroneous advice from the Regional
Office, such erroneous advice does not in any way al-
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leviate or eliminate the Charging Party’s statutory obli-
gation to timely serve the Respondent, as explicitly set
forth in the Board’s Rules and Regulations.
For the foregoing reasons, we find that the com-
plaint is barred by Section 10(b), and we accordingly
grant the Respondent’s motion and dismiss the com-
plaint.
ORDER
The complaint is dismissed.