Duff-Norton Co., Inc.

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duff-Norton Company, Inc.' and Drivers, Chauf- feurs, Warehousemen and- Helpers Local No. 71, affiliated with International- Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.,Cases 11-CA-9574-2 and 11-CA-9929 31 May 1985 DECISION AND ORDER - BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 11 February 1983 Administrative Law Judge Robert A. Gritta issued the attached decision: The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision. 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 as modified. . The judge found that the General Counsel's rein- statement of the charge in Case 11-CA-9574-2, after the time limitations period of Section 10(b) had lapsed was contrary to Board law. He there- fore dismissed this case on the basis that the-allega- tions herein were unsupported by a viable charge: While we agree with the judge's dismissal - of this case, we do so for the following reasons: - The record reveals that the Union filed the charge in Case 11-CA-9574-2 on 10 December 1980 alleging that the Respondent had violated Section 8(a)(1) and (3) by discharging employee Michael Privette on 8 December 1980. Thereafter, .the Acting Regional Director refused to issue a complaint and the General Counsel, in Washington, D.C., affirmed the Acting Regional Director's de- cision. On 8 June 19811 the Union filed a second charge, in Case 11-CA-9929, alleging the same violation as that alleged earlier. During the investi- gation of this second case, the Respondent's former supervisor Kenneth Tucker.gave an affidavit to a Board agent indicating that he had set up Privette for discharge by tampering with certain machines at the workplace. On 30 July the Acting Regional Director issued a complaint based on this second charge. The Respondent asserted in its, 31, July answer that it had received the charge on 10 June and that Section 10(b) barred the processing of, all allegations in the second charge. At the hearing on 27 April 1982, the General Counsel moved to amend the complaint to rescind the second charge but to reinstate the first charge Hereafter, all dates refer to 1981 unless indicated otherwise 275 NLRB No. 93 - which had been dismissed. The Respondent and the General Counsel stipulated.that the second charge was barred by Section 10(b) because it had been untimely served. However, the Regional Director, by letter to the Union of 27 April 1982, had re- voked the earlier, dismissal of the first charge. The Respondent then moved- at, the hearing to-dismiss, arguing that the reinstatement of a stale charge was barred by laches and was a denial of due process. The judge denied the Respondent's motion and permitted the General Counsel to proceed, relying on California Pacific Signs, 233 NLRB,450 (1977), and .on the General Counsel's assertion that. the is- suance of the complaint, alleging a violation in Pri- vette's discharge, after the allegations earlier had been dismissed was based on the newly discovered evidence supplied by former. Supervisor Tucker. As noted above; the judge in his decision then dis- missed this case relying on Winer Motors, 265 NLRB 1457 (1982).2 In agreeing with the judge's disposition of this case, we find that the Regional Director contra- vened the -purposes of the limitations proviso to Section 10(b) of the Act3 by reinstating' the first charge some- 16 months after Privette's discharge and after the second charge had failed for improper service. In so doing, we note that, while the first charge- was timely filed on 10 December 1980, it thereafter was dismissed by the Acting Regional Director and this dismissal was affirmed by the General Counsel. -For•the reasons explained below, we conclude that the General Counsel is foreclosed from reinstating the first charge outside-the limita- tions period of Section 10(b). In Ducane Heating Corp., 273 NLRB 1389 (1985), we reversed inconsistent portions of California Pa- cific Signs, supra, and Winer Motors, supra, and held that a. dismissed charge may not be reinstated out- side the 6-month limitations period of Section 10(b) absent special circumstances where a respondent fraudulently conceals operative facts underlying the violation alleged. We further held that where there is a fraudulent concealment the limitations. period begins to run when the charging party knows or should have known of, the concealed facts. 2 In so doing, the-judge inadvertently misconstrued the majority posi- tion in Winer, supra, regarding dismissed charges We find this, inadvert- ence to be'inconsequential,to our decision herein for reasons that follow 2 Sec 10(b) of the Act contains the proviso - - That no complaint shall issue based upon any unfair labor practice occurniig 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 penod shall be computed from the'day of his discharge - ' - DUFF-NORTON CO. -Applying .the- principles of Ducane, supra, to the instant case, we conclude, in agreement - with the judge, that the reinstatement of the -first charge outside ' the limitations period cannot be permitted. We find no fraudulent concealment in this case which would warrant our extending the limitations proviso. In this regard, we note initially that Pri- vette was employed by the Respondent as a quality control inspector . In this capacity, he inspected the production of certain machine operators. Privette was active in the union organizing -campaign which commenced in the fall of -1979. On 8 December 1980 the Respondent discharged Privette for failing to properly inspect'the*production of a machine operator who produced a substantial amount of de- fective parts, many of which had to be scrapped. At the hearing, Privette testified that sometime in April 1981 he learned from Kenneth ,Tucker, a su- pervisor for the Respondent at the time of Pri- vette's discharge, that Tucker had purportedly set up Privette - for, discharge. Privette testified that Tucker did not relate at- that time what he. had done to set- Privette up and did not do so until Pri- vette signed a document on 29 May 1981"releasing Tucker from responsibility for the consequences 'of the discharge. At the hearing, Tucker testified that - sometime prior to Privette's discharge he turned the guide stops on three - machines upside down. Tucker - said he did this to impress Plant Manager Johnson after having heard -Johnson say on several occasions that he would like "to get rid of Privette. Thereafter, on 26 November and 1 December 1980, a machine operator, whose production Privette was charged with inspecting, produced the defective parts as mentioned above . After an- investigation into the matter, the Respondent pursuant twits pro-_ gressive disciplinary system ' issued a - written warn- ing to the operator and discharged'Privette.. Considering the, above , we' nonetheless' find-that the 10(b) period expired on 8 June, 6 months after Privette's discharge, and, • because there was-'not then on' file a properly served charge , the com- plaint must be dismissed . Contrary- to our dissent- ing colleague, we, do not view Tucker's 'allegedac- tions as - a "fraudulent concealment" warranting -an extension of time even assuming that Tucker did tamper with the -machines and that this , in part, caused the production of defective parts . Thus, we note that Tucker's action would! have affected di- rectly',;onl'y the 'machine''operator; and-would have affected Privette 'only 'indirectly because .Privette merely 'inspected . and did not produce parts: We note further that Tucker t`estified _ that " his' tampering would have affected only the spot facing of the parts. Thus, his tampering . could not have caused the defective pieces produced on -1 December be- 647 cause they were defective as to ream depth. And, while the defective, pieces produced on 26 Novem- ber were defective- as to spot facing, we note that Privette testified that he first checked the machine operator's production . on this .date around 8:30 a.m., but he did not get back to her until around 1 p.m. when.he then stopped the operation. By this time, however, some. 91 of the 116 pieces produced were defective and.had to be scrapped: Thus, even assuming that Tucker did tamper with the opera- tor's machine, this would not explain the ream depth defects nor Privette's 'delay in discovering the spot facing defects. Accordingly, there is an-in- sufficient nexus between tucker's asserted tamper- ing,and Privette's performance of his inspection duties so as to conclude that the Respondent fraud- ulently, concealed the operative facts pertaining to Privette's discharge.4 Thus, for these reasons, we agree with the judge's, conclusion that the com- plaint should be, dismissed and we therefore adopt his recommended Order doing so. 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 dismiss the complaint on- procedural 'grounds, 'but would instead -remand this case to the judge for a decision on the merits. In Ducane Heating Corp.' the Board held' that both' dismissed -and withdrawn' charges could not be reinstated outside the' 6-month limitations period of Section 10(b) "absent special circumstances - ih which a respondent fraudulently conceals 'the' oper- ative.facts underlying the alleged violation." The Board further, held that "[w]here there is a fraudu- lent concealment, the limitations period begins to run-when the charging party knows-or should have known of the concealed facts." My colleagues find there'was no fraudulent concealment in this case. •I 'disagree. ' - The Respondent discharged Quality Control In- spectbrMichael Privette`-8--December' 1980 for fail- ing' properly - to inspect the production ' of a ma- chine operator who' produced defective parts. The 'Union'- filed 'a charge' 10'December 1980 alleging that Privette's discharge violated Section 8(a)(1) and'(3) of the Act. The charge -was-'later dismissed. [learned from former Su- On 29. May 1981, Privette Y pervisor -Kenneth Tucker that Tucker had alleged- 4 We also note in passing that the judge indicated that Tucker's testi- mony regarding this alleged sabotaging was not "fully credited " t 273 NLRB 1389 (1985). - • , , 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly "set him up" for discharge by tampering with certain machines, whose production - Privette in- spected, so that they would 'produce' defective parts. On 8 June 1981 the Union filed a second charge alleging that Privette was unlawfully dis- charged, but it was not served on the Respondent until 10 June, a date more than 6 months after the discharge. On 30 July 1981 the Regional Director issued a complaint alleging that • Privette was dis- charged in violation of Section 8(a)(3). Ducane Heating states that the, limitations period will not begin to run when there has been fraudu- lent concealment of "operative facts underlying the alleged violation." Here, the sabotage, if proven, would certainly be an "operative [fact] underlying the alleged violation" because the sabotage alleged- ly caused the very' condition that the Respondent held Privette responsible for detecting. In `deciding there was no fraudulent concealment, the majority focuses upon the General Counsel's alleged failure ultimately to prove at the trial a causal nexus be- tween the alleged sabotage and the discharge. As the courts have recognized, however, it is sufficient if the charging party can show-fraudulent conceal- ment of "the facts which are the basis of his cause of action."2 Here, the alleged sabotage provides the basis of Privette's cause of action, i.e., the Re- spondent attempted to entrap Privette and manu- facture a pretext for his discharge. Privette did not know of the concealed fact of the alleged sabotage until Tucker told him about it on 29 May 1981. In my view, the 6 -month limita- tions period began to run at that time. The second charge was filed and served less than 2 weeks later and was therefore timely. Accordingly, I would' remand this proceeding to the judge for a decision on the merits of the com- plaint allegation that Privette was unlawfully dis- charged. discharging employee Michael A. Privette on December 8, •1980. Respondent's amended answer timely denies the commission of any unfair labor practices. All parties hereto were afforded full opportunity to be heard, to examine and. cross -examine 'witnesses, to intro- duce evidence, and to argue orally. Briefs were submit- ted by the General Counsel, Respondent, and the Charg- ing Party. All briefs were, duly considered. On the entire record in this case, including procedural facts and factual representations' of counsel, and on sub- stantive, reliable evidence considered along with the con- sistency and inherent -probability of testimony, I make the following ' - - FINDINGS OF FACT . I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF - ' LAW The complaint alleges , Respondent admits, and I' find that Duff-Norton Company; Inc. is engaged in the manu- facturing' of hoists in Wadesboro, North Carolina. Duff- Norton Company, Inc., in the past 12 months, in the course•"and• conduct of its business operations purchased and received at its .Wadesboro, North Carolina facility goods and materials, valued in excess of $50,000 directly from points located outside the,State of North Carolina. I conclude and -find that Duff-Nortori Company, Inc. _is an employer engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and -I con- clude- and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. • - II. ISSUES, The issues presented are: A. The propriety of proceeding in this case upon a charge reinstated some 16 months subsequent to the ini- tial investigation and dismissal by the Regional Office. B. Whether the subject discharge was-in violation of the Act. 2 NLRB v Don Burgess Construction, 596 F 2d 378 fn 2 (9th Cir 1979), and cases cited therein DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge.-This case was tried before me on April 27, 28, 29, and 30 and June 14, 1982, in Wadesboro, North Carolina, based on a charge filed by Drivers, Chauffeurs, Warehousemen and Helpers Local No. 71, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on June 8, 1981, and, a complaint issued by the Acting Regional Director for Region 11 on July 30, 1981, in Case 11-CA-9929.,The complaint alleges that Duff-Norton Company, Inc. (Re- spondent) violated Section 8(a)(1) and (3) of the Act by III. BACKGROUND OF ALLEGED .UNFAIR LABOR PRACTICE' Michael Privette began employment with Respondent in August 1969. Apparently his employment history 'was satisfactory and, in 1974, he was sent, at -Respondent's expense, to a school for special training. Upon his^'com- pletion of the school, he was promoted to inspector in the quality control department. During the next several years, Privette performed to Respondent's 'satisfaction and was considered for a management position in the future by Johnson, the plant manager..(-The consideration took the form of a conversation between Johnson and Privette.) - In September 1979, Privette initiated, contact with the Union and actively supported the resulting union cam- ' The events herein are gleaned from the undisputed and/or credited evidence of all witnesses and the objective evidence in the record DUFF-NORTON CO 649 patgn which culminated in an election on November 29, 1979. The results of the election were indefinite due to challenged ballots of several voters. In -February 1980, Privette • was involuntarily trans- ferred to the production drill section pursuant to an ad- ministrative change whereby ' several inspectors were transferred to new production departments. On August 25, 1980, the Regional Director for Region 11 issued a revised tally. of ballots followed by a Certifi- cation of Respresentative on September 10, 1980. On November 24, 1980, several production depart- ments, including the drill section, began work on a pur- chase order calling for 1000 pieces of a back plate identi- fied as RA^ 18.2 The production started on the second shift under the scrutiny of Inspector Dunn. Ten pieces were produced the first night. The following night, 36 pieces were produced each with a shallow ream depth which required the pieces to -be reworked. Inspector Dunn recorded the necessary information on his inspec- tor's report for the November 25 shift The following day the first shift began production operations -on the RA 18's. The ream depth and spot facing functions were performed by operator Stansberry, and Privette inspect- ed her work. During the shift, Privette noted on an in- spection report that Stansberry was reaming too shallow- ly and spot facing too deeply.3 At one point in the shift, Stansberry's problem caused Prievette to stop the oper- ation and report the deficiencies to both his supervisor and Stansberry's supervisor. Privette and the production supervisor checked the entire production of Stansberry near the shift's end and found that 91 pieces out of'] 16 had to be scrapped due to excess depth on the spot facing. The Thanksgiving break intervened and produc- tion was not continued until the first shift on December 1, 1980. Stansberry again was the operator and her prob- lems persisted. Privette noted on several occasions that she was reaming too . shallowly and spot facing too deeply. Although Privette is required to inspect four parts three times during a shift and record the results of his inspections; he failed to record the required number of inspections either November 26 or December 1, 1980. Prtvette made all the ream depth inspections and found no problems. Plant Manager Johnson, on December 1, having learned of the 91 scrapped pieces made. by Stansberry on November 26 ordered' Personnel Manager McElroy to conduct an investigation into - the. causes for the scrap. During the investigation, McElroy- also learned that the faulty parts were still- being produced on December 1. McElroy enlisted. the aid of the inspection -,supervisor, Phifer, and several production supervisors, to • recheck the entire production of Stansberry on November. 26 and December 1., The investigation continued into December z• The drill section performed several operations.on the RA 18, two of which;are material ,here, the reaming of several holes and the spot facing of an additional hole . The inspector's function relative to these two oper- ations is to check the depth of each Although different instruments are used'to make each check, the inspector's function is neither time consum- ing nor difficult ' 8 A shallow ream depth can be reworked by simply redoing the oper- ation to a deeper depth The spot facing, when too deep, causes the entire piece (RA 18) to be scrapped since it cannot be used in that condi- tion, nor can it be reworked - • 2. On that morning when Prtvette arrived for work, he was called -into Manager Schweitzer's office and in- formed by Phifer that he was suspended pending the out- come of the -investigation of the * RA 18's produced on November 26 and December 1, 1980. Privette was told if he was not at fault, he-would be reinstated with his loss of pay: - The investigation disclosed that 90 odd pieces were scrapped because of spot facings too deep and that in excess of 120 pieces would have to be reworked due to shallow ream depths. In addition to Stansberry's produc- tion of November 26 and December 1, 1980, the second shift, on November 24 and 25, ran a total of 46 pieces of which 2 were scrapped and several required rework. On December 6, 1980, Phifer called Privette and told him to report to the Company's office on Monday, De- cember 8,. 1980. On Monday, Privette reported, as or- dered, and Phifer, again in Schweitzer's office, informed Privette that because of the high percentage of bad parts produced with his inspection, he was being terminated. Operator Stansberry was given a written warning, and Inspector Dunn and the second shift leadman and opera- tor were counseled but were not disciplined in accord with Respondent's progressive discipline policy.' IV. BACKGROUND AND FOREGROUND OF INVESTIGATIVE AND ADMINISTRATIVE PROCEDURE The Union filed a charge, Case 11-CA-9574-2, on De- cember 10, 1980, alleging the unlawful discharge of Mi- chael Privette on December 8, 1980. The charge was in- vestigated by the Regional Office, and on January 22, 1981, the Regional. Director declined to issue a complaint and dismissed the charge. The Union appealed the dis- missal of the charge to the General Counsel's office in Washington, D.C., but the General Counsel affirmed the Regional Director's dismissal. Companion' charges were investigated and complaints issued in January 1981 alleg- ing unlawful discharges of several employees and inde- pendent 8(a)(1) allegations of threats, excessive discipline and unlawful work rules.5 -Michael Privette, however, was not the subject of any allegations in the several com- plaints. On June 8, 1981 the Union filed a second charge alleging the unlawful discharge of Michael Privette on December 8, 1980, and numbered Case' 11-CA-9929. This charge was investigated and complaint issued on July 30, 1981, with no date set for the trial. The Union requested withdrawal of the other outstanding charges, and on July 31,, 1981, the Acting Regional Director for Region 11 approved withdrawal of the several charges (see fn. 5) and set April 27, 1982, as the trial date .for Case .11-CA-9929-The The Charging Party about April 27, 1982, presented new evidence to the Regional Director respecting Privette's discharge, and the Regional Direc- „tor, on April 27, 1982, revoked the dismissal letter of January 22, 1981, in Case 11-CA-9574-2. The case r ° Albeit, the evidence of Privette's prior discipline was not admitted in evidence, the parties did stipulate that Privette received a written warn- ing July 14, 1980, a suspension September 9, 1980, and was discharged December 8, 1980, in accord with Respondent's progressive discipline policies - s Cases ll-CA-8797, 11-CA-9000, 11-CA-9464, and 11-CA-9574-1 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opened as scheduled on April 27, 1982, with the General Counsel moving for time to receive certain documents from the Regional Office., Upon receipt of these docu- ments, the General Counsel amended his formal papers to include a consolidated complaint based .on the reinstat- ed charge from December 10, 1980, Case 11-CA-9574-2, and the current charge in Case 11-CA-9929. Following the receipt into evidence of the consolidated complaint and the supporting charge, the General Counsel moved to amend out of the consolidated complaint, Case 11- CA-9929. The General Counsel's stated purpose for the amendment was the time-barred status of Case 11-CA- 9929. The parties stipulated that the service of the charge in Case 11-CA-9929 did not conform to Section 10(b) of the Act. - Immediately on the General Counsel's amendment to the formal papers and his motion to withdraw Case 11- CA-9929 from the consolidated complaint, and to pro- ceed with Case 11-CA-9574-2, Respondent moved' for dismissal based on due process, laches, and the General Counsel's failure to comply with Section 10(b) of 'the Act. Although there were apparent irregularities relating to the General Counsel's procedure of reinstating a stale charge and withdrawing a current charge with defective service, I allowed the General Counsel to proceed due to the outstanding Board laws and his, representation that newly discovered evidence had precipitated the filing of Case 11-CA-9929 and the Region's issuance of the com- plaint.' The General Counsel proceeded on the theory that Privette was set up for discharge by sabotage to his machine causing bad parts - to be produced. The alleged ` saboteur was the former first shift drill section supervisor Kenneth Tucker. As the trial progressed and evidence was submitted, several factors-became apparent. The newly discovered evidence of a 'supervisor's tinkering was not directed to -any machine that the alleged 8(a)(3), Privette, actually worked on but rather to three machines out of 'a bank of seven or eight machines that operator Stansberry operat- ed and for whose production Privette was responsible as quality control inspector. Thus, the General Counsel's argued causal connection between the sabotage and the scrapped production of parts is not direct but is, at best, indirect. ' Contrary to the General Counsel's contention, the sab- otage,'if performed as Tucker testified, would not have caused Privette's discharge.8 For the sabotage to be ef- 6 California Pacific Signs, 233 NLRB 450 (1977) 1 The General Counsel stated, -and finally, the decision to issue a coniplaint in this case after it was dismissed was based on newly discovered evidence, to wit, a super- visor coming forward and admitting he tinkered with the 8(a)(3)'s machine causing his discharge The alleged tinkering took the form of turning guide stops upside down so that the operator would not have the automatic control of depth produced by the machine The upside down stop has an uneven surface whereas the stop right side up has a smooth flat surface 8 Tucker's testimony as to the nature of his sabotage was not sufficient to show conclusively that the net effect of the sabotage would be scrap production The net effect could only be, maybe for some parts, as was the fact fective to Privette, the inspection functions by Privette would necessarily have to be substandard. He would have to fail his duties in his own right to be subject to discipline for, bad production from the sabotaged ma- chines. The credible evidence is clear that the sabotage could only produce scrap parts due to bad spot facing with no irreversible effect on the team depth, another operation performed on the RA 18's utilizing the same bank of drill presses. In addition to the alleged sabotage, the General Coun- sel attempted to introduce evidence of Respondent's pro- gressive discipline as-it applied to Privette prior to his discharge for the express purpose of invalidating the dis- charge as a result of unlawful progression. (See - fn. 4.) The General Counsel was not allowed to elicit evidence of prior disciplines for his expressed purpose because in my view such an- attempt would be contra to the Su- preme Court's pronouncement in Bryan Mfg.9 Also,' the General Counsel's stated theory of the case and the reason for reinstating the prior dismissed charge was the testimony of former Supervisor Tucker which deals sin- gularly with the sabotage and without regard for any prior disciplines. Thus, even- if Tucker's testimony' is fully credited (which it is not), what the General Coun- sel has-is a former supervisor's alleged attempt to cause Privette's discharge and Privette's dereliction in perform- ing his inspection duties. The General Counsel's witness Ralph Dunn, inspector on second shift, testified without contradiction that he observed the - guide stop in its upside down position while his employees operated the machine on December 1, 1980. Dunn's testimony shows that he recognized the stop position as a' potential prob- lem to acceptable production on the machine, but did nothing in relation to the machines continued production in such condition. - Analysis and Conclusions - - In the past, the Board cases dealing with reinstatement of prior charges have- not been definitive particularly with respect to application of the limitations period of Section 10(b). The, cases have, however, recognized and- acknowledged the General Counsel's burden to establish the necessary propriety of such reinstatement to effectu- ate the. purposes and policies of. the Act.' Albeit, not ex- pressly stated by, the Board,. I conclude that newly dis- covered evidence must be considered both substantively and procedurally in light of the often stated, "knew or should have known . by the exercise of ordinary dili- gence," when considering the propriety of reinstating a stale charge. Applying such a test to,the . newly discov- ered evidence in this case raises several questions. If In- spector. Dunn, an employee closely involved in the events of November and December 1980, was aware that the stop quide on at least one machine was upside down at the critical time, how did such information defy dis- closure and additional investigation.. Further, if, as the evidence shows, an experienced inspector took no affirm- ative action to stop production on the affected drill press, one could conclude that the machine fault had Machinists Local 1424 v. NLRB, 362 U S 411 (1960) DUFF-NORTON CO. little or nothing to do with production of scrap parts. The General Counsel must shoulder some burden to evaluate evidence particularly in such circumstances. as_ are present here. To do less places too much emphasis on catch phrases, or worse, places the charged party in a position which can be froth with the lack of due process I see no reason for the General Counsel's statutory burden to attach to a proceeding only after administra- tive processes have caused charges to be investigated and complaints to issue.10 If the General Counsel's burden under the statute were the only consideration, I would reverse my trial ruling and grant Respondent's motion to dismiss, but that is not the case. The question of Section 10(b) and its limitations are constantly a subject under consideration. The Board recently in Winer Motors, 265 NLRB 1457 (1982) ruled that a charge, previously withdrawn, can only be reinstated within the 6-months limitations period imposed by Section 10(b) of the Act. The majority in the Winer case makes no distinction between a withdrawn charge and a dismissed charge. In their view, both cease to exist The Board frequently must balance the equities when deciding an issue, be it substantive or procedural, but the Winer case specifically overruled Silver Bakery of Newton, 150 NLRB 421 (1965), wherein the General Counsel was allowed discretion to reinstate a previously withdrawn charge outside the statutory 6-months period based on equitable considerations and further expressly reaffirmed the holding in Koppers Co., 163 NLRB 517 (1967), which assures Respondent, they will not be-held liable for activities occurring more than 6 months in the past, while no charge is on file. 10 The record evidence shows that the charge in Case I1 -CA-9574-2 could have been reinstated as early as July 22, 1981, the date Supervisor Tucker gave his affidavit to a Board agent, or no later than August 3, 1981, the day Respondent's answer was received by the Board in Case II-CA-9929 which contained a 10(b) defense to service of the supporting charge 651 An examination of all the factors, including affording all parties to litigation full and fair opportunity for sub- mission of evidence and argument, but recognizing that it is also important in the administration of the Act that procedural remedies be deemed exhausted at some point and a particular matter be closed, leads me to conclude that this case falls within the, class of cases where the Board's sympathies for unfair labor practices precluded from consideration by the 6-month period is an insuffi- cient basis to restrike the balance established by Con- gress in Section 10(b). Accordingly, I find that the rein- statement of Case 11-CA-9574-2 outside the 10(b) limi- tations period of 6 months is contrary to Board law and cannot be allowed. The General Counsel's case is, there- fore, unsupported by a viable charge and must be dis- missed. ADDITIONAL CONCLUSIONS OF LAW 1 Respondent did not violate Section 8(a)(1) and (3) of the Act when it discharged Michael Privette on De- cember 8, 1980, for failing to perform his inspection duties satisfactorily. . 2. The General Counsel has failed to sustain his burden of support for reinstating a stale charge some 16 months subsequent to dismissing said charge. On these findings of fact and conclusions of law and" on the entire record, I issue the following recommend- ed'' ORDER The complaint is dismissed in its entirety. 11 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall , as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses