NLRB v. Capitol Fish Company

• Decision Date: 27 September 1961
• Docket Number: No. 18404.,18404.
• Citation: 294 F.2d 868
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAPITOL FISH COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

294 F.2d 868 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAPITOL FISH COMPANY, Respondent.

No. 18404.

United States Court of Appeals Fifth Circuit.

September 27, 1961.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., Charles M. Paschal, Jr., Reg. Atty., N.L.R.B., New Orleans, La., Stuart Rothman, Gen. Counsel, Allison W. Brown, Jr., James A. Ryan, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

C. E. Gregory, Jr., H. Fred Gober, Atlanta, Ga., Arnall, Golden & Gregory, Atlanta, Ga., for respondent.

Before RIVES and WISDOM, Circuit Judges, and DAWKINS, Jr., District Judge.

WISDOM, Circuit Judge.

The National Labor Relations Board petitions this court for enforcement of its order of May 7, 1960, against respondent, Capitol Fish Company. The order rests on two findings: first, that Capitol Fish violated Section 8(a) (1) of the National Labor Relations Act by interfering with its employees in the exercise of their rights under Section 7 of the Act; second, that Capitol Fish violated Section 8(a) (3) and 8(a) (1) by discriminatorily discharging an employee, Bennie Hill, because of his union activities. 126 N.L. R.B. No. 123. The testimony, as usual in an unfair labor practice case, is conflicting. The respondent contends that the findings are not supported by substantial evidence, a contention we do not reach.

The distinguishing feature of this case is the respondent's contention that in violation of the due process clause of the Fifth Amendment, it was denied the right to introduce material evidence. This is based (1) on the General Counsel's refusing to permit the attorney who investigated the case and prepared it for trial to testify and (2) on the trial examiner's quashing a subpoena issued to the attorney. The respondent contends that the attorney's testimony would have shown that he carried partiality to Hill, the charging party, beyond proper limits, indeed, to the point of attempting to persuade prospective witnesses to twist the facts in order "to help Bennie" and Bennie's family. These improper activities affect the entire case, so the respondent argues, because they cast a doubt on the credibility of all the witnesses against respondent. The Board brushes off the contention, in a footnote in its brief, as the injection of a collateral issue designed to reflect on the Board's investigatory procedures; if upheld, says the Board, it would impair the functioning of the investigatory powers of the Board. We consider the contention serious and basically sound. We find it unnecessary, however, to reach the constitutional issue; exclusion of the investigating attorney as a witness violated the statutory provisions governing proceedings under the Act.

I

Capitol Fish is engaged in the sale and distribution of frozen and canned sea foods in Atlanta, Georgia. In September 1958, Local 315, Retail, Wholesale and Department Store Union AFL-CIO, requested respondent to recognize it as the collective bargaining representative for respondent's production, maintenance, and warehouse employees, including truck drivers. The union petitioned the Board for an election. Several weeks later, after a local unit of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America also petitioned the Board for an election, the Retail Union withdrew its petition in favor of the Teamsters Union. The election was by consent. October 13, 1958, the Board certified that the union had not received a majority of the votes cast and was not the exclusive representative of respondent's employees. The union did not contest the election nor contend that the company committed any unfair labor practices in connection with the election.

January 5, 1959 Capitol Fish discharged Bennie Hill, one of its truck drivers, telling him that business was slow and it was necessary for the company to discharge some employees in order to reduce costs. The Board found that the company discharged Hill because it "ascertained that Hill was a leader in the organizing campaign"; the Company denies that there is any evidence that the Company knew of such activities.

January 12, 1959, Hill filed a charge against Capitol Fish, alleging that he had been discriminated against, and that by this and other acts Capitol Fish "interfered with, restrained and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act." February 4, 1959, Porter Baldwin, another discharged employee, filed a similar charge. The examiner found, and the Board approved, that a discriminatory discharge of Baldwin was not shown by a preponderance of the evidence. The union filed no charges whatever.

Some time before the hearing, Capitol Fish requested the Regional Director to issue a subpoena to the Board's investigating attorney and to secure the General Counsel's permission for the attorney to testify. The Director issued the subpoena but informed the respondent that it would have to ask permission itself. Capitol Fish, in writing, asked the General Counsel for permission to have the attorney testify. The respondent pointed out that it had two affidavits showing that the attorney, accompanied by Bennie Hill, the complaining witness, approached employees and sought to obtain statements from them favorable to Hill by appeals to their sympathy for Hill and his family. The General Counsel denied permission, relying on N.L.R.B. Regulations, 29 C.F.R. Section 102.118. This section prohibits Board employees from producing files or records or testifying in regard thereto without permission of the Board or General Counsel.¹

At the outset of the hearing, the respondent moved that the hearing be postponed "until such time as the General Counsel grants permission for Mr. Miller to testify." The trial examiner denied the motion, on the ground that the General Counsel had already denied the request. The investigating attorney was present and represented the General Counsel at the hearing. Another Board attorney moved to quash the subpoena on the grounds that "the permission to testify has been denied and the matter is irrelevant anyway." The trial examiner granted the motion and revoked the subpoena.

The unrebutted testimony of Robert Poole, who voluntarily left Capitol Fish for a better paying job, supports the respondent's contention that the investigating attorney's testimony would have an important bearing on the credibility of all the witnesses who testified against Capitol Fish. Poole said that the attorney, on one occasion accompanied by Hill, approached him and others several times for a written statement, "to help Bennie." In response to questions intended to serve as the basis for a written statement, Poole denied that he had "heard Mr. Julius and Mr. Jacob Levitt of Capitol Fish * * * talk against the union." Notwithstanding these denials, the attorney persisted in asking Poole "to help Bennie." "He was saying to me about this man being out of work and had a family, and I told him I had a family myself and I didn't see any reason why — there was nothing I could do to get involved in helping Bennie." After Poole left the respondent's employ, the attorney telephoned Poole's home several times. Finally, he called at Poole's home and again asked for a statement. "He handed me a paper 8" × 11" with just my name and address on it, as much as I can see, and told me to sign it and I told him I wasn't gonna sign anything." During the course of the trial, one of the General Counsel's witnesses testified that he was "positive" that Jacob Levitt had no conversation with him about who were the union leaders. He had to be shown his pre-trial affidavit before he could remember that he had made the written statement that Levitt had discussed the subject of union leaders with him and had attempted to find out their names. Another witness, who could read only "a little bit," had to have the investigating attorney, in his capacity as trial attorney, read the witness's pretrial statement to him before he could recall what Mr. Julius Levitt had said about the unions; even then he testified that he was "not sure."

The inference that the investigating attorney, playing on the sympathy of employees for their fellow employee and his family, attempted and, in part, succeeded in obtaining from prospective witnesses false or twisted statements may be a cruel injustice to him. But it is a reasonable inference for the respondent to draw, it is material, and fair trial procedures shaped by centuries entitle respondent to an opportunity to support the inference by the attorney's own testimony — unless valid regulations of the N.L.R.B. justify the trial examiner's ruling affirmed by the Board.

II

As enacted originally, Section 10(b) of the National Labor Relations Act provided that "the rules of evidence prevailing in courts of law or equity shall not be controlling" in proceedings before a trial examiner. This broad grant of discretion and the lack of judicial control over evidence rulings of trial examiners and the Board, led Congress to amend the statute in 1947 so as to require the Board to follow the rules of evidence prevailing in federal courts.² Section 10(b) of the Act now provides: "Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of Title 28."

The peculiar characteristics of administrative hearings justify certain departures from district court rules. For example, the rules against hearsay evidence are considerably relaxed in such hearings, on the theory that the examiner is more sophisticated than a juror and will not attach improper weight to such testimony.³ Here,...