No. 98-594
In the Supreme Court of the United States
OCTOBER TERM, 1998
DON LEE DISTRIBUTOR, INC., ET AL., PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
JOHN EMAD ARBAB
Attorney
National Labor Relations Board
Washington, D.C. 20570
QUESTION PRESENTED
Whether substantial evidence supports the National Labor Relations Board's
finding that a portion of the unfair labor practice complaint, alleging
that petitioners had engaged in unlawful joint bargaining without the Union's
consent, was timely under Section 10(b) of the National Labor Relations
Act, 29 U.S.C. 160(b).
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-594
DON LEE DISTRIBUTOR, INC., ET AL., PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-23a) is reported at 145
F.3d 834. The decision and order of the National Labor Relations Board (Pet.
App. 24a-39a) and the decision of the administrative law judge (Pet. App.
40a-105a) are reported at 322 N.L.R.B. 470.
JURISDICTION
The judgment of the court of appeals was entered on June 2, 1998. A petition
for rehearing was denied on July 10, 1998 (Pet. App. 106a-107a). The petition
for a writ of certiorari was filed on October 8, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. a. Petitioners are six wholesale beer distributors operating in the Detroit,
Michigan, metropolitan area. Pet. App. 3a, 41a. Petitioners' employees are
represented by Respondent Local 1038, International Brotherhood of Teamsters
(Union). The workforce employed by each petitioner constitutes a separate
bargaining unit under Section 9(b) of the National Labor Relations Act,
29 U.S.C. 159(b). Pet. App. 3a, 42a-44a. In January 1990, petitioners withdrew
from a multiemployer association and retained West Coast Industrial Relations
Association, Inc. (West Coast), a labor-relations consulting firm, as their
bargaining representative. Id. at 3a-4a, 25a n.2, 26a, 43a-44a. Fred Long,
an official of West Coast, advised petitioners to enter into a "mutual
aid pact." Id. at 4a, 44a. Accepting this advice, petitioners signed
a mutual aid pact on January 18, 1990. That pact provided, in relevant part:
1. Each Distributor shall enter into its own Agreement with the Union. Nothing
contained herein shall be construed to reflect a multi-employer association
nor create a multi-employer unit. This document reflects a coordinated bargaining
effort among individual and independent Distributors.
2. Each Distributor shall share costs and expenses of Fred R. Long and his
associates who shall represent the Distributors['] bargaining efforts with
the Union . . .
* * *
7. Distributors agree to the establishment of the minimum objectives * *
* for a new Collective Bargaining Agreement which can only be changed by
a majority vote of the participating Distributors.
8. In the event any Distributor is in breach of this Agreement or negotiates
directly with the Union * * * or agrees to settle on terms and conditions
in excess of those listed in item 7 herein above, that Distributor * * *
shall * * * pay to each of the other Distributors a penalty fee of $400,000
to each.
Id. at 4a-5a, 6a, 44a-45a, 48a. Among the 22 "minimum objectives"
for a new collective bargaining agreement referred to in paragraph 7 of
the mutual aid pact were such matters as "[e]liminate eight (8) hour
minimum/ maximum day," "[r]emove load limit," "[m]anagement
rights clause," "[r]eduction in wages," and "[n]o restrictions
on number of part-time employees." Id. at 5a-6a, 27a, 45a-47a.
b. The existing collective bargaining agreement was scheduled to expire
on May 1, 1990. Pet. App. 6a, 44a. On March 6, 1990, Patrick Jordan, an
attorney for West Coast, informed Robert Knox, president of the Union and
its chief negotiator, that petitioners were "prepared to meet with
you jointly and engage in concurrent negotiations." Id. at 67a; see
also id. at 6a. Knox replied that he had not agreed to meet jointly or to
engage in concurrent negotiations with petitioners and that he did not "even
know what that meant." Id. at 6a, 67a.
The parties held an initial meeting on March 27, 1990. In view of the expressed
reluctance of Knox to participate in "joint" or "concurrent"
bargaining, Long told Knox that he could conduct a bargaining session for
one of the distributors separately but would thereafter insist on identical
contract terms for each of the other five. Pet. App. 7a, 68a; see also id.
at 79a. Knox instead agreed to try the joint bargaining approach and "see
how it progressed." Id. at 7a, 68a.
At the March 27 meeting, Knox asked Long whether petitioners had entered
into any kind of mutual aid pact. Pet. App. 7a, 54a. Long replied that the
possible existence of a mutual aid pact was "none of his business and
that it was not relevant to bargaining." Ibid. Long also stated that
petitioners had not pledged to negotiate exclusively through him and that
they could "retain someone else without penalty." Id. at 7a, 56a-57a.
The parties exchanged initial contract proposals on April 18, 1990. Long
presented the Union with six identical proposals, one for each distributor.
Pet. App. 7a. That circumstance prompted Knox to ask whether there was "an
association or other collective understanding" among petitioners. 145
F.3d at 8391; see also Pet. App. 54a. Long refused to answer, stating that
"that wasn't an appropriate subject for bargaining." Pet. App.
7a, 54a. When the question again arose at a May 22 negotiating session,
Long gave a "somewhat evasive answer" which suggested that "certain
[d]istributors could well end up agreeing to different contract terms."
Id. at 8a.
At bargaining sessions held in late June and early July 1990, the Union
began to insist on separate bargaining for each distributor. Pet. App. 8a,
68a-69a, 82a-83a. When the Union made proposals that addressed issues unique
to two of the distributors, however, all six distributors responded with
identical counter-proposals. Id. at 8a-9a, 79a-80a. On August 8, Knox asked
Chris Thomas, an associate of Long, for all documents showing the relationship
between West Coast and petitioners. Thomas refused to honor that request,
stating that the documents were confidential. Id. at 9a, 54a.
On September 11, 1990, West Coast transmitted to the Union a "final
offer" which made clear that petiioners were presenting "complete
and identical" offers. Pet. App. 9a. At the next bargaining session
on September 20, Knox asked whether there was "a written or oral document
that binds you distributors together in any way." Officials of two
distributors stated in response that there was no pact of any kind among
petitioners. Id. at 9a, 54a.
On January 14, 1991, after several further unsuccessful bargaining sessions,
Thomas sent a letter to Knox stating that negotiations were at an impasse.
Pet. App. 9a-10a. On January 30, petitioners simultaneously notified the
Union that they would unilaterally implement the non-economic portion of
their final offer on February 7, 1991. Id. at 10a. Petitioners thereafter
did so on that date. Id. at 48a.
c. On April 3, 1991, the Union filed a charge with the National Labor Relations
Board alleging that petitioners had violated Section 8(a)(5) of the National
Labor Relations Act, 29 U.S.C. 158(a)(5), by bargaining in bad faith and
by unilaterally implementing new terms and conditions of employment on February
7, 1991, in the absence of a bargaining impasse. Pet. App. 11a-12a, 40a-41a
n.1, 48a.
On June 20, 1991, after an investigation, the Regional Director declined
to issue a complaint against petitioners based on a theory that they had
bargained in bad faith by engaging in multiemployer bargaining without the
Union's consent. Pet. App. 12a, 49a. On the evidence then before him, which
did not include the mutual aid pact, the Regional Director found "no
evidence that the Employers wished to change the scope of the six individual
units or combine them into one unit," and "[no] evidence that,
in the event an overall agreement is reached * * * the Employers intend
not to bargain individually over issues which might pertain to each respective
company." Id. at 12a. Instead, the Regional Director found that petitioners
had engaged in permissible "bargain[ing] in a group with a single representative
of their choice * * * for identical language in their collective bargaining
agreement." Ibid. The Regional Director did issue a complaint against
petitioners, however, alleging that the February 7, 1991, unilateral changes
had been implemented in the absence of a bargaining impasse. The complaint
was issued on July 26, 1991. Id. at 13a, 49a.
In the meantime, on July 12, 1991, the parties conducted another bargaining
session. Steve Wolock, a Union attorney, asked for the production of any
document "that spelled out the employers' relationship to each other
for purposes of collective bargaining." He also specifically asked
whether "there were any penalty provisions amongst the distributors."
Pet. App. 10a, 54a. Thomas admitted for the first time that there was an
agreement among the distributors, but he declined to produce it on the ground
of attorney-client privilege. Id. at 10a, 54a-55a.
The Union appealed the Regional Director's refusal to issue a complaint
against petitioners based on an unlawful multiemployer bargaining theory.
On July 6, 1992, Long wrote a letter to the Board's Office of Appeals in
which he stated that, while petitioners had entered into a "mutual
aid pact," the pact was solely for the purpose of sharing the cost
of negotiations and contained no provision "that would restrict their
bargaining." The Office of Appeals subsequently denied the Union's
appeal. Id. at 13a, 49a-50a.
d. On November 16, 1992, a hearing on the July 1991 complaint commenced
before an administrative law judge (ALJ). Pet. App. 14a, 40a-41a n.1. On
that date, in response to a subpoena, petitioners produced a copy of the
mutual aid pact for the first time. Id. at 14a, 48a, 50a. Shortly thereafter,
on January 27, 1993, the General Counsel moved to amend the complaint. Id.
at 14a; C.A. App. 104. The proposed amendment to the complaint alleged that
the mutual aid pact, "which was concealed from the Union, was actually
an agreement forming a de facto multi-employer association and/or bargaining
coalition and * * * from March 27, 1990, the first negotiating session,
[petitioners] bargained illegally as a multiemployer association or engaged
in coalition bargaining, without the Union's consent." Pet. App. 14a,
50a (internal quotation marks omitted). Over petitioners' objection, the
ALJ granted the General Counsel's motion to amend the complaint. Ibid.
2. a. After the hearing, the Board concluded that petitioners violated Section
8(a)(5) of the Act "by engaging in joint bargaining without the Union's
knowledge or consent." Pet. App. 26a-29a; see also id. at 64a-85a.
The Board explained that "[i]t is a violation of the statutory bargaining
obligation for either a union or an employer to insist to impasse on a nonmandatory
subject of bargaining, i.e., a subject that does not concern the terms and
conditions of employment in the bargaining unit to which the employer's
recognitional obligation extends." Id. at 27a-28a (citing NLRB v.
Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958)). The Board observed:
Change in the scope of a bargaining unit is a nonmandatory subject. When
either employers or unions which have in the past bargained in separate
units begin, without the consent of the other side, to bargain jointly as
if bargaining for a single contract, they are engaging in unlawful insistence
on a nonmandatory subject. "Neither an employer nor a union is free
to insist, as a condition of reaching an agreement in one unit, that the
negotiations also include other units, or that the terms negotiated in the
first unit be extended to other units."
Id. at 28a (quoting Utility Workers Union, Local No. 111 (Ohio Power Co.),
203 N.L.R.B. 230, 238 (1973), enforced mem., 490 F.2d 1383 (6th Cir. 1974)).
Applying these principles, the Board found that "the secret pact of
the [petitioners] created a system, enforced by substantial financial penalties,
by which the votes of the [c]ompanies outside a particular bargaining unit
could block agreement on a contract by the bargaining parties in that unit."
Pet. App. 28a.2 The Board rejected, as inconsistent with "the credited
evidence," petitioners' contention that "they were * * * engaged
in lawful coordinated bargaining-i.e., each employer making its own entirely
independent decision on contract terms, although coordinating its negotiations
with the other employers." Id. at 26a.3
Because "the bargaining was unlawful from its inception," the
Board concluded that "all subsequent unilateral implementations of
the [petitioners'] offers were unlawful and must be rescinded." Pet.
App. 29a. The Board therefore ordered petitioners, among other things, to
"[r]escind the entire February 7, 1991 implementation," and to
"[m]ake all unit employees whole for any loss of wages and benefits
they may have suffered as a result of the unlawful changes." Id. at
31a.
b. The Board further rejected petitioners' contention that the amendment
to the complaint alleging unlawful joint bargaining was time-barred by Section
10(b) of the Act, 29 U.S.C. 160(b).4 Pet. App. 29a-30a; see also id. at
50a-56a. The Board found that the amendment was timely because it was "closely
related to the [Union's] charge allegation of unilateral implementation
before impasse (which became a part of the complaint)." Id. at 29a.
The Board explained that "the joint bargaining allegation is of the
same class of violation in that it concerns negotiating conduct governed
by Section 8(a)(5) of the Act; it involves the same factual setting and
sequence of events, in that all the theories call for analysis of the entire
course of bargaining; and the [petitioners] raised virtually the same defenses."
Ibid.
The Board also found that "the amendment was appropriate for the additional
reason that the [petitioners'] fraudulent concealment of the existence of
the pact tolled the [Section] 10(b) period." Pet. App. 30a. The Board,
by adopting the ALJ's findings (id. at 25a), explained that, "for 16
months, until July 12, 1991, and even as late as July 6, 1992, when Long
wrote to the Office of Appeals, [petitioners] concealed the existence of
the pact." Id. at 55a. The Board further explained that, "even
if [petitioners] had somehow hinted at the existence of the pact * * * Long
and his cohorts certainly never gave any clue about its contents. The Union
never knew, nor did the General Counsel." Ibid. The Board added:
No one knew that the pact prohibited each of [petitioners] from bargaining
directly with the Union or agreeing to terms and conditions which did not
meet the minimums. No one knew that, if one [c]ompany strayed from what
the others wanted, it subjected itself to damages of at least $1,600,000.
* * * And no one knew that Long's letter to the Office of Appeals misstated
that the pact did not "restrict" [petitioners'] bargaining and
that the pact related only to "sharing costs to pay [for] negotiations
[and] security protection if a strike occurred."
Id. at 55a-56a.
3. The court of appeals enforced the Board's order. Pet. App. 1a-23a. The
court found that, "[o]n this record, there is at least substantial
evidence-we would be more likely to call it overwhelming evidence-that the
[petitioners] were engaged in unlawful multiemployer bargaining without
the Union's consent." Id. at 18a.5 The court rejected petitioners'
contention that "the Pact * * * reflected only an innocent coordinated-bargaining
strategy." Id. at 17a-18a.
On the Section 10(b) issue, the court concluded that "the NLRB has
shown substantial evidence" that the joint-bargaining amendment to
the complaint was "closely related" to the Union's April 3, 1991
charge alleging that petitioners unilaterally implemented new employment
terms before a bargaining impasse. Pet. App. 20a-21a. The court also concluded
that "the facts could scarcely be stronger in support of the NLRB's
finding" that the "[petitioners] fraudulently concealed the terms
of the Pact." Id. at 21a. The court found that "[t]he Union repeatedly
asked about the existence of a mutual aid pact, beginning with the very
first collective bargaining session," but that "[t]he [d]istributors'
responses were generally evasive * * * and were sometimes downright untruthful."
Ibid.
The court further concluded that, "[e]ven were we inclined to accept
the [petitioners'] argument that the Union was on notice of the existence
of some agreement, the record makes absolutely plain that the [petitioners]
kept the terms of the Pact a closely-held secret." Pet. App. 21a. The
court explained that "the Union had no way to ascertain whether the
Pact provided for lawful coordinated bargaining or unlawful multiemployer
bargaining without knowing its precise terms." Id. at 22a; see also
id. at 10a-11a n.3. The court observed:
Not only did the [d]istributors go so far as to ignore a subpoena in another
proceeding demanding production of a copy of the Pact, but Long and his
associates flagrantly misrepresented the Pact's terms-going so far as to
say, for example, that there was no penalty to any [d]istributor for negotiating
directly with the Union, or for using a negotiator other than West Coast
* * * when the Pact clearly prohibited such acts on pain of a substantial
financial penalty.
Id. at 21a-22a. "In the face of these facts," the court rejected,
as "border[ing] on the disingenuous," petitioners' argument that
"[t]he Union and the General Counsel failed to exercise due diligence."
Id. at 22a.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or of any other court of appeals. Further review
is therefore not warranted.
1. Contrary to petitioners' contention, this case does not ultimately present
"the question of whether the 'fraudulent concealment' exception to
Section 10(b) is limited to instances in which a charging party exercises
reasonable diligence in its own behalf" (Pet. 11-12). Instead, as petitioners
indirectly acknowledge (Pet. 9-10), and as the court of appeals expressly
held (Pet. App. 20a-21a), the amended complaint was timely regardless of
fraudulent concealment because "it was closely related to the original
charge's allegation of unilateral implementation of employment conditions
before a bona fide impasse was reached" (id. at 20a).
The fraudulent concealment doctrine was only an alternative basis for the
holding of the court of appeals that the joint-bargaining allegation of
the unfair labor practice complaint was timely under Section 10(b) of the
Act. The court of appeals (like the Board) expressly found that the joint-bargaining
allegation was timely under Section 10(b) because it was "closely related"
to the charge that petitioners unilaterally implemented new employment terms
prior to an impasse in bargaining. Pet. App. 19a-22a, 29a-30a. Petitioners
state that they "do not challenge this holding" (Pet. 10) and
do not present this "closely related" issue as a question for
review (see Pet. i).6 Since this alternative, independent ground for the
decision below is not challenged here, further review is not warranted because
a judgment of this Court on the fraudulent concealment issue would not alter
the ultimate disposition of this case. This Court sits "to correct
wrong judgments, not to revise opinions" (Herb v. Pitcairn, 324 U.S.
117, 126 (1945)).
2. In any event, petitioners err in contending that the court of appeals
has reformulated the fraudulent concealment doctrine.
a. Generally speaking, "[r]ead into every federal statute of limitations
* * * is the equitable doctrine that in case of defendant's fraud or deliberate
concealment of material facts relating to his wrongdoing, time does not
begin to run until plaintiff discovers, or by reasonable diligence could
have discovered, the basis of the lawsuit." Fitzgerald v. Seamans,
553 F.2d 220, 228 (D.C. Cir. 1977). The Sixth Circuit also has held, consistent
with the decisions of other circuits (see Pet. 14-15), that under the fraudulent
concealment doctrine, "a plaintiff must prove '* * * plaintiff's due
diligence until discovery of the facts.'" Hill v. United States Dep't
of Labor, 65 F.3d 1331, 1335 (6th Cir. 1995) (quoting Dayco Corp. v. Goodyear
Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975)).7 Applying that
established principle here, the court correctly held that there was no plausible
basis in this record for finding that the Union had failed to exercise due
diligence in seeking to discover the terms of the mutual aid pact. See Pet.
App. 22a (finding that such a claim "borders on the disingenuous"
given that "Long and his associates flagrantly misrepresented the Pact's
terms").8 The court did not establish a "new standard" (Pet.
15) that eliminated the need to exercise due diligence; instead, it considered
the due diligence requirement and concluded that the Union had met its burden.
b. Stripped of its erroneous premise that the court of appeals reformulated
the fraudulent concealment doctrine, petitioners' argument is merely a claim
that, on the evidentiary record in this case, the Union failed to exercise
due diligence. See Pet. 15-16, 18. According to petitioners (ibid.), the
Union knew, no later than June or July 1991, that petitioners had entered
into an agreement that called for unlawful joint bargaining. That fact-bound
contention, which was rejected by the court of appeals, raises no issue
warranting further review. Universal Camera Corp. v. NLRB, 340 U.S. 474,
490-491 (1951).
Moreover, petitioners' factual contention lacks merit. As the court of appeals
explained, "the disclosure of the existence of the Pact is immaterial
to the legality of [petitioners'] conduct"; rather, "the question
is whether the [d]istributors disclosed the terms of the Pact," because
"an agreement providing for coordinated bargaining is perfectly lawful,
while one that provides for multiemployer bargaining without the Union's
consent is a violation of the NLRA." Pet. App. 10a-11a n.3; see also
id. at 22a. The court found that "[t]he record makes absolutely plain
that the [d]istributors kept the terms of the Pact a closely-held secret."
Id. at 21a. As of June or July 1991, the Union was operating under the misrepresentation,
made by Long in March 1990, that petitioners had not pledged to negotiate
exclusively through him and could "retain someone else without penalty."
Id. at 7a, 56a-57a. At no time did petitioners disabuse the Union of Long's
misrepresentations; in fact, they affirmatively reinforced those misrepresentations.9
As the Board found, "[n]o one knew that the pact prohibited each of
[petitioners] from bargaining directly with the Union or agreeing to terms
and conditions which did not meet the minimums," and "[n]o one
knew that, if one [c]ompany strayed from what the others wanted, it subjected
itself to damages of at least $1,600,000." Id. at 55a-56a. Indeed,
in July 1992, Long continued to perpetuate his misrepresentations by advising
the Board's Office of Appeals that the pact was solely for the purpose of
sharing the cost of negotiations and contained no provision that would "restrict
[the individual distributors'] bargaining." Id. at 13a; see also id.
at 56a.
Petitioners argue (Pet. 15, 18) that a passage from Union president Knox's
testimony shows that, by June or July 1991, he knew that petitioners had
entered into an agreement that called for unlawful joint bargaining. That
argument is unpersuasive. In the cited passage, Knox testified:
And it was very clear to me that they just could not make the decision for
themselves. They were, in fact, you know-well, marching in lock step really
because Cris Thomas kept saying they all wanted- they had the same everything
else and we were getting no place with them. So I figured that they had
to have some sort of document that bound them together. And we wanted to
know what the conditions were so we could try to formulate our negotiations
and create something.
Pet. App. 122a (emphasis added). Knox's testimony thus makes clear that
he did not know, yet sought to discover, the actual terms of an agreement
that appeared to him to "b[ind] [petitioners] together." When
the Union asked Thomas for a copy of the pact at the July 12, 1991 meeting,
he refused the request (id. at 10a), and Long continued to misrepresent
its provisions (id. at 13a).10 Because petitioners did not reveal the actual
provisions of the pact until November 1992, the joint-bargaining allegation
of the complaint was timely under Section 10(b) because the complaint was
amended to add that allegation less than six months later, in March 1993.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
JOHN EMAD ARBAB
Attorney
National Labor Relations Board
DECEMBER 1998
1 The cited passage from the officially reported decision of the court of
appeals has been omitted in the printing of the appendix to the petition.
See Pet. App. 7a.
2 The Board explained: "Because deviation from the [22 "minimum"]
objectives [in the pact] could be achieved only by a majority vote, three
[c]ompanies could veto another company's contract, and enforce this veto
with the agreed-on financial penalty. By entering into the pact, therefore,
each [c]ompany effectively lost its freedom to make the ultimate decision
regarding provisions of its contract with the Union, ceding that decision
to the other [c]ompanies as a group." Pet. App. 27a.
3 In contrast to joint bargaining, "coordinated bargaining" is
a lawful practice whereby "parties share information and coordinate
efforts but ultimately retain the authority to negotiate contract terms
individually." Pet. App. 16a. See, e.g., General Elec. Co. v. NLRB,
412 F.2d 512 (2d Cir. 1969).
4 Section 10(b) provides, in pertinent part, 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." 29 U.S.C. 160(b).
5 The court of appeals used the term "multiemployer bargaining"
as a synonym for "joint bargaining," which was the term used by
the Board in its decision. See Pet. App. 16a.
6 Despite that express disclaimer, petitioners suggest (Pet. 10) that "the
closely related doctrine does not justify the decision below." That
is so, petitioners argue (Pet. 10 n.5), because the Board failed to address
whether the joint-bargaining allegation was based on conduct that occurred
within the six-month period prior to April 3, 1991, the date of the Union's
charge. There is no merit to that suggestion. A complaint amendment that
is otherwise closely related to a timely-filed charge must also be based
on conduct that occurred within six months of that charge. Pet. App. 19a;
see also Redd-I, Inc., 290 N.L.R.B. 1115, 1115 (1988). That requirement
was satisfied in this case. As the court of appeals noted, "[i]t is
undisputed that the alleged unfair labor practice of bargaining without
disclosing the terms of a multiemployer-bargaining agreement occurred within
six months of the date on which the original charge was filed." Pet.
App. 20a.
7 The Sixth Circuit's explication of the reasonable diligence principle
does not differ from that of the other courts cited by petitioner (Pet.
14-15). See, e.g., IAM, Dist. Lodge 64 v. NLRB, 50 F.3d 1088, 1092 (D.C.
Cir. 1995) ("'[D]eliberate concealment of material facts' tolls the
statute until the plaintiff discovers or with due diligence should have
discovered the basis of the lawsuit.") (quoting District Lodge 64,
IAM v. NLRB, 949 F.2d 441, 449 (D.C. Cir. 1991)); Truck Drivers & Helpers
Union, Local No. 170 v. NLRB, 993 F.2d 990, 998 (1st Cir. 1993) (Board acts
reasonably in "plac[ing] the burden of proving the exercise of due
diligence in discovering the fraud on the party seeking to toll the statute
of limitations"); Landry v. Air Line Pilots Ass'n Int'l, 901 F.2d 404,
412-413 (5th Cir.) (plaintiffs have "obligation to exercise reasonable
diligence to discover frauds perpetrated against them once they are on notice
that such acts might have occurred"), cert. denied, 498 U.S. 895 (1990);
NLRB v. O'Neill, 965 F.2d 1522, 1527 (9th Cir. 1992) ("[A] party who
wishes to invoke the doctrine of fraudulent concealment must establish *
* * the exercise of due diligence on his part."), cert. denied, 509
U.S. 904 (1993).
8 While petitioners claim (Pet. 12) that the court established a rule that
"an early concealment excuses later inaction without regard to the
aggrieved party's actual state of knowledge or diligence in pursuing its
rights," no such statement appears in the court's decision, nor is
it reasonable to infer such a rule from the court's decision.
9 For example, at the May 22, 1990 bargaining session, Long, in response
to the Union's query, misleadingly suggested that "certain [d]istributors
could well end up agreeing to different contract terms." At the September
22, 1990 bargaining session, officials of two distributors, in response
to the Union's query as to whether petitioners had entered into an agreement
"that binds you distrbutors together in any way," falsely stated
that petitioners had not entered into any kind of pact whatsoever. See pp.
4-5, supra.
10 Contrary to petitioners' suggestion (Pet. 18), on July 12, 1991, Thomas
did not "confirm" that a pact containing terms indicative of illegal
joint bargaining existed. Instead, he simply refused to produce a copy of
the pact. Pet. App. 10a, 54a-55a. There is also no merit to petitioners'
suggestion (Pet. 16) that, had the Union been diligent in June or July 1991,
it would have asked the General Counsel to subpoena the pact. Since petitioners
had earlier ignored a subpoena for the pact in a related Board proceeding
(Pet. App. 21a-22a, 54a n.5), the Union could have reasonably concluded
that a further subpoena would be a futile gesture in light of Thomas' assertion
that the agreement was protected by attorney-client privilege. Id. at 10a.