Luther W. SHUMATE et al., Petitioners, and Union Carbide Corporation, Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent, 452 F.2d 717

BUTZNER, Circuit Judge: This petition for review of a decision of the National Labor Relations Board questions the application of the Labor Act's six-months period of limitations to charges of coercion based on a union’s attempts to collect fines imposed for crossing a picket line. The Board held the charges were barred because they were filed more than six months after the imposition of the fines. We believe, however, that subsequent attempts to collect the fines within the limitations period provide a basis for charges of unlawful coercion that are not barred by the lapse of time.

We also conclude that the union waived the statute of limitations and that the Board committed a procedural error by invoking this affirmative defense. Accordingly, we set aside the order dismissing the complaint and remand the case for decision on its merits. I Luther W. Shumate and the other petitioners were employers of Union Carbide Corporation at its South Charleston, West Virginia, plant on July 24, 1967.

On that date, a collective bargaining agreement between Local Lodge 598, International Association of Machinists and Aerospace Workers (AFL-CIO), and Union Carbide terminated, and the union authorized an economic strike that lasted until October 9, 1967. Although the petitioning employees were members of the union on July 24 and initially participated in the strike, each of them resigned from the union and returned to work before the strike ended. The union responded by charging the employees with improper conduct for crossing the picket line.

When the employees were notified of the union hearings on the charges, they ignored the proceedings because, having resigned, they believed they were not subject to the union’s disciplinary control. The union, maintaining that its constitution did not permit resignation, tried the employees in their absence, fined and expelled them. The employees received notice of this action in November 1967. In April 1968, the union wrote the employees that it would bring suit to collect the fines unless they were immediately paid.

Receiving no response, on May 21, 1968 the union instituted a suit in a West Virginia court which is still pending. Shumate filed the initial unfair labor practices charge on June 21, 1968, and the others filed on July 17, 1968. The employees concede that it is settled by NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), that a union can lawfully fine members for crossing a picket line.

They contend, however, that having resigned from the union before crossing the line, the fines, the dunning letters, and the suit for collection constituted unfair labor practices prohibited by § 8(b) (1) (

A) of the Act. The union contends that the resignations of the employees during the course of the strike were ineffective and that the fines are therefore lawful. The parties, considering the primary issue to be whether the employees were subject to the jurisdiction of the union when they crossed the picket line, submitted the ease to the Board on stipulated facts. The Board, however, did not decide the case on its merits. It held the charges were barred by § 10(

b) because in its opinion the operative facts occurred more than six months before the charges were filed. It pointed out that only the threat to sue and the filing of the suit took place within the limitations period. It considered these acts lawful in and of themselves and that to hold them unlawful it would be necessary to determine that the fines were illegally imposed. “In making such a finding,” the Board concluded, it “would be doing precisely what the Supreme Court condemned in [Local Lodge No. 1424, etc. (Bryan Manufacturing Co.) v.

NLRB, 362 U.S. 411, 422, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960)], namely, finding a ‘violation which is inescapably grounded on events predating the limitations period * *.’ ” 180 N.L.R.B. No. 135, at -, 73 L.R.R.M. at 1144. Bryan, cited by the Board, states the rules for determining when evidence of time-barred events is admissible to prove charges of unfair labor practices. “It is doubtless true that § 10(

b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence to the admissibility of past events, due regard for the purposes of § 10(

b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(

b) ordinarily does not bar such evidentiary use of anteri- or events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely ‘evidentiary,’ since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful.

And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.” 362 U.S. at 416, 80 S.Ct. at 826. This case falls within the first situation described in Bryan. The threats to sue and the suit were current efforts to punish the employees for crossing the picket line. Evidence of the earlier events is admissible to illuminate the character of the union’s more recent tactics.

The parties stipulated at the Board proceedings that the employees, if called to testify, would state that they did not appear at the union’s hearing which resulted in the imposition of the fines because they believed the union no longer had any jurisdiction or authority over them. Without attempting to reach the merits of the case, it is sufficient for us to note that recent Board decisions furish a rational basis for the employees’ belief.

The Board has ruled that the members of this particular union were free to resign at will because the union’s constitution lacked any provision for members to voluntarily withdraw. Aeronautical Industrial Lodge 751, 173 N.L.R.B. 450, 452 (1968). And the Board has held that employees who resigned from their union before crossing a picket line may not be fined. Booster Lodge 405, IAM (Boeing Co.), 185 N.L.R.B. No. 23, 75 L.R.R.M. 1004 (1970), enforced in pertinent part, Nos. 24,687, 24,744, D.C.Cir., Feb. 3, 1972.

Viewed in this light, it was the threat to sue and the suit, not merely the imposition of the fines, that put pressure on the employees. The assessment of the fines is important only as evidence in the union’s civil suit to obtain judgments against the employees. The civil complaint alleges all of the elements required for judgment —the strike and its duration; the existence of the picket line; the membership of the employees, and their improper conduct in crossing the line; and the union trial and punishment.

The suit is not benign; it is a fresh assertion that the employees were members of the union, and it omits any reference to their resignations. Its effectiveness does not depend on what the union proved at the union trial. It depends on the proof the union can muster at the state trial. Moreover, as the Board noted in Boeing, even though the fines may not be collectible through court action, the employees must retain counsel whose services they would otherwise not require. 185 N.L.R.B. No. 23, at-, 75 L.R.R.M. at 1005. This burden, too, may be deemed coercive. In Cone Mills Corp v.

NLRB, 413 F.2d 445, 448 (4th Cir. 1969), we held that § 10(

b) as interpreted by Bryan did not bar charges involving “a repetitive succession of events occurring within a period of six months prior to the filing of the charge.” In the same vein, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO v.

NLRB, 124 U.S.App.D.C. 215, 363 F.2d 702, 706, cert. denied, 385 U.S. 973, 87 S.Ct. 510, 17 L.Ed.2d 436 (1966), held that Bryan should not be read to bar prosecution of an unfair labor practice charge “[w]hen within the six-month period there has been active conduct, as contrasted with mere passive inaction following an old offense. * * * ” In both cases evidence concerning conduct that occurred beyond the six-months period was admitted to amplify more recent events. The same kind of situation is disclosed by this record.

The union first sought to punish the employees more than six months before the charges were filed, but it actively pursued its goal through repetitive attempts to extract money from them within the limitations period. The decision we reach is also consistent with the Board’s holding in Local 248, UAW (Allis-Chalmers), 149 N.L.R.B. 67 (1964), enforced sub nom. NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), that § 10(

b) did not bar relief. In Allis-Chalmers, involving a sequence of events very similar to the present case, union members were fined by the union for having breached picket lines during a strike. The employees filed unfair labor practice charges against the union more than six months after the imposition of the fines, but within six months of the union’s attempt to collect them. The union pleaded that the charges were barred by § 10(

b) because the fines had been imposed approximately a year and a half before the filing of charges. The trial examiner, whose ruling was affirmed by the Board, cited Bryan in peremptorily dismissing this defense, saying, “[W]here, as here, implementing action is taken within the 6-month period,

Section 10(c) [sic] does not bar the proceeding * * 149 N.L.R.B. at 76 n. 12. We conclude, therefore, that the charges of unfair labor practices are not barred by § 10(b). II We believe that the Board also committed procedural error by relying on § 10(b). The union did not plead the statute of limitations but submitted its case on the merits. The Board’s dismissal of the charges on its own initiative is inconsistent with its earlier ruling that § 10(b) “is a statute of limitations, and is not jurisdictional.

It is an affirmative defense, and if not timely raised, is waived * * Chicago Roll Forming Corp., 167 N.L.R.B. 961, 971 (1967), enforced sub nom. NLRB v. Chicago Roll Forming Corp., 418 F.2d 346 (7th Cir. 1969). We deny enforcement of the Board’s order and remand the case for decision on its merits. .

Section 10(

b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1970), provides in part: “[N]o 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. * $ * » . International Ass’n of Machinists, 180 N.L.R.B. No. 135, 73 L.R.R.M. 1143, aff’d on reconsideration, 186 N.L.R.B. No. 138, 75 L.R.R.M. 1456 (1970). .

Section 8(b) (1) (

A) of the National Labor Relations Act, 29 U.S.C. § 158(b) (1) (A), makes it an unfair labor practice for a union “to restrain or coerce * * * employees in the exercise of the rights guaranteed in

section [7] * * *: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. * * * ”

Section 7, 29 U.S.C. § 157, guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and * * * the right to refrain from any or all of such activities. * * * ” . Bryan dealt with a collective bargaining agreement which required union membership as a condition of employment.

Since the union represented only a minority of the employees when the agreement was executed, the Board deemed the inclusion of the union security clause an unfair labor practice. After the agreement had been in effect ten months, its continued enforcement was attacked as an unfair labor practice. Noting that the agreement was lawful on its face, the Supreme Court ruled that it could be considered unlawful only because it had been illegally executed, an event that occurred more than six months before the charges were filed. The Court held, therefore, that the charges were barred by § 10(b).