N.L.R.B. v. Quality C.A.T.V., Inc.

• Decision Date: 29 June 1987
• Docket Number: 86-1988,Nos. 86-1811,s. 86-1811
• Citation: 824 F.2d 542
• Parties: 125 L.R.R.M. (BNA) 3093, 106 Lab.Cas. P 12,446 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY C.A.T.V., INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 542

824 F.2d 542

125 L.R.R.M. (BNA) 3093, 106 Lab.Cas. P 12,446

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. QUALITY C.A.T.V., INC., Respondent.

Nos. 86-1811, 86-1988.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 10, 1987.

Decided June 29, 1987.

Judith Dowd, N.L.R.B., Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.

Stephen C. Cline, Peterson, Haramy, Cline & Shoup, Indianapolis, Ind., for respondent.

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The National Labor Relations Board ("Board") has filed a petition asking this court to enforce an order of the Board, which held that respondent, Quality C.A.T.V Inc. ("Quality"), had violated section 8(a)(1) of the National Labor Relations Act by discharging two employees for protesting an uncomfortable condition of employment. Quality has filed a cross-petition for review of the Board's order. Because the violation found by the Board was not alleged in the complaint or ever raised at the evidentiary hearing and Quality may have explored different facts or arguments had it known of the unalleged charge, the procedure here violated due process and we will vacate and remand for further proceedings consistent with this opinion.

I

In its business of installing and operating cable television franchises, Quality contracts with various utilities to string its television cable on their utility poles. On July 22, 1982, Quality had a crew of employees engaged in stringing nonenergized television cable on utility poles that were already carrying telephone lines. The poles were carrying no other power lines. It began to rain early in the afternoon and Quality's crew supervisor, Jeffrey Fairfield, instructed the crew to stop their work. After suggesting that the remaining crew members follow, Fairfield and most of the crew members left the site in one of Quality's vehicles and went to a local coffee shop to wait out the rain. However, two of the crew members, Jerry L. Reners and Charles H. Boyle, Jr., chose to remain on the poles on which they had been working when it started to rain. Because they required the assistance of a groundman to continue to work, one groundman stayed with them. Boyle and Reners remained on the poles for some little time but eventually got down and with the groundman climbed into the remaining company truck with the intention of joining the others at the coffee shop. They were, however, unable to start the truck, and they waited for a time, thinking that the others might come back to get them. The ALJ found that during this period Boyle and Reners decided they would no longer work that day, because they felt they were mistreated by the failure of the crew to come back to check on them. They eventually decided to walk through the rain to the coffeeshop. Some time later the weather cleared and Fairfield took the crew back to the poles to work. When they got back to the job site, however, Boyle and Reners refused to work, pointing out that they were still wet. Believing a full crew was required in order to work effectively, Fairfield dismissed the entire crew for the day. Fairfield reported this situation to Quality's president, Fred Martin, who told him that Boyle and Reners had by their actions voluntarily quit and that if they attempted to return to work they should be so informed. Boyle and Reners did attempt to return to work the next morning and Fairfield explained Martin's position and gave the two men their paychecks along with instructions for collecting additional monies they were owed.

Boyle then filed an unfair labor practice charge alleging that the discharge of Boyle and Reners violated section 8(a)(1) of the National Labor Relations Act. 29 U.S.C. Sec. 158(a)(1). Several days later Reners also filed an unfair labor practice charge alleging that Quality had violated section 8(a)(1). ¹ The Board through its Acting Regional Director consolidated the charges and issued a complaint alleging inter alia that Quality had violated section 8(a)(1) by discharging Boyle and Reners because they had "ceased work concertedly and engaged in a strike by refusing to perform physically dangerous work." After a hearing on the charges an Administrative Law Judge ("ALJ") concluded there had been no violation and dismissed the complaint. The ALJ determined that the only issue litigated under section 8(a)(1) was the claim that Boyle and Reners had engaged in a concerted effort to protest unsafe working conditions by means of a work stoppage. The ALJ then determined that the conditions were in fact safe, that Boyle and Reners had known this, and that they had not refused to work because of unsafe conditions.

The General Counsel of the NLRB filed exceptions to the ALJ's decision with the Board and in the brief accompanying those exceptions for the first time claimed that Boyle and Reners refusal to work was protected activity because it involved a protest over uncomfortable working conditions (being required to climb the telephone poles while wet). ² Quality's counsel responded that this variance from the complaint amounted to an amendment of it and a change in strategy foreign to the issues heard at the hearing and argued in the briefs to the ALJ. Respondent's Answering Brief to Counsel for the General Counsel's Exceptions to the ALJ's Decision at 1-2. ³ A divided panel of the Board concluded in a summary footnote, with no discussion of the events at the hearing, that the parties had fully litigated the question of whether Boyle and Reners were discharged for a work stoppage to complain of discomfort. The Board held that Quality had violated section 8(a)(1) under this unalleged claim, even though the Board had explicitly adopted the ALJ's credibility findings and the ALJ had credited testimony suggesting that the employees were refusing to work for concerns other than their wet condition. ⁴ The Board majority also found the violation on the unalleged claim notwithstanding the ALJ's specific indication that he believed no section 8(a)(1) claim other than hazardous working conditions was litigated.

The dissenting member of the Board agreed that the ALJ was correct in holding that no section 8(a)(1) violation had been shown for hazardous conditions but also believed that the hazardous conditions claim was the only claim litigated. The dissenter further believed that no other charge had been established in the record even if it was necessary to reach that question.

The Board has now petitioned this court to enforce its order finding an 8(a)(1) violation and ordering reinstatement and backpay for Boyle and Reners. Quality has filed a cross-petition asking us to review the Board's order.

II

We must decide if the procedure utilized by the Board in the circumstances presented by this case comported with Quality's due process rights where the complaint did not allege such a violation, the complaint was never amended to reflect such a charge, the General Counsel never raised such a charge at the evidentiary hearing, and the first notice Quality ever received of a section 8(a)(1) discomfort allegation was apparently in the brief filed by the General Counsel with the Board excepting to the ALJ's decision.

The complaint in this case alleged in relevant part only that "On or about July 23, 1982, at a New Market, Indiana, jobsite, certain employees of the Respondent ceased work concertedly and engaged in a strike by refusing to perform physically dangerous work." NLRB Complaint p 4(a). Thus the complaint, as it should, gave exact notice of the allegations raised in order to enable Quality to prepare for and present its defense. See 29 C.F.R. Sec. 102.15; NLRB v. Complas Industries, 714 F.2d 729, 733-34 (7th Cir.1983); Douds v. International Longshoremen's Association, 241 F.2d 278, 283 (2d Cir.1957). Of course the nature of the allegations in a complaint is also important as a standard of relevance at any hearing. E.g., Complas Industries, 714 F.2d at 733-34; Douds, 241 F.2d at 283. There is nothing in the complaint regarding any allegation of a section 8(a)(1) violation concerning discharges due to a concerted work stoppage to protest uncomfortable conditions of employment. Nor is there any general language that could be reasonably construed to present such an allegation. The complaint was never amended. Thus we are not presented with the question whether Quality received effective notice by way of the pleadings because Quality never received notice through the pleadings.

Therefore, we must consider only whether the course of the proceeding provided Quality with fair notice of the discomfort claim so that the Board could decide the question based on its full litigation. Complas Industries, 714 F.2d at 734. If a party in fact receives actual notice prior to or at the hearing and has a meaningful opportunity to prepare his defense the full and fair litigation of the claim will allow the Board to decide it even though the complaint was never formally amended to include that claim. Id.; Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324 (7th Cir.1983); George Banta Co., Inc. v. NLRB, 686 F.2d 10, 22-24 (D.C.Cir.1982); Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1074 (1st Cir.1981). In such a case the defending party has lost nothing by the failure to assert the claim in the formally prescribed manner because the party has received sufficient, actual notice and all of the evidence and argument has been presented that would have been presented had the allegation been raised in the complaint. The situation is different, however, where the party never receives notice that such a violation is contemplated for prosecution. In such a case, other evidence may exist or other arguments might be made that the party reasonably chose not to pursue or emphasize in the defense of the only claim of which it had been informed. In such a case the unalleged claim has not been...