NLRB v. Tennsco Corporation
| Decision Date | 14 December 1964 |
| Docket Number | No. 15659.,15659. |
| Citation | 339 F.2d 396 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TENNSCO CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Marion Griffin, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.
Wilson Sims, Nashville, Tenn. (Bass, Berry & Sims, of counsel), for respondent.
Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and PRETTYMAN, Senior Circuit Judge.*
The National Labor Relations Board petitions for enforcement of an order which directed our respondent, Tennsco Corporation, to cease and desist from certain alleged practices and to employ with back pay two persons allegedly illegally denied employment because of union activities.
Prior to 1961 a company named K. F. Cline Co. manufactured certain metal products. Its employees were represented by a union1 as their certified agent. By virtue of a voluntary check-off the company knew that all these employees were union members. In the latter part of 1961 the company, by reason of business conditions, reduced its working force and then shut down the plant entirely. A man named Speyer, who had been a competitor, purchased the plant and machinery, incorporated respondent Tennsco, and began business at the former Cline site. He employed the former general manager of Cline (one Liebtag), who in turn hired as supervisory personnel the former Cline superintendent and foremen. Prior to its decline Cline had had a normal working force of between fifty and sixty. Tennsco had twenty employees.2 Of these employees fourteen had been employed by Cline and were members of the union. Thus Tennsco employed six who had not worked for Cline and who were not union members.
Among the 36 to 46 former Cline employees who were not hired by Tennsco were the president of the union (one Sullivan) and its secretary (one Greer). The union filed charges against Tennsco, and a complaint was issued and hearings held before an Examiner. He made findings, reached conclusions and issued an intermediate report and a recommended order. The Board modified the order and issued it.
The complaint charged violations of Sections 8(a) (1), 8(a) (3), and 8(a) (5) of the Act.3 The Board found violations of Sections 8(a) (1) and 8(a) (3). It based these conclusions upon findings that Tennsco had threatened employees and applicants for employment by asserting that it would shut down rather than recognize a union, and had refused to employ Sullivan and Greer because of their union activities.
The first point raised by this petition for enforcement concerns a problem of pleading and procedure. The complaint charged that Tennsco had failed and refused to hire 66 named people4 because they had joined or assisted the union, and that the company did so for the purpose of avoiding its obligation to recognize the union. When the hearing began, the General Counsel for the Board, who is the prosecuting attorney in these cases, made a brief opening statement in which, inter alia, he said he would prove that the employees "hired off the street" by Tennsco were hired in preference to former employees of Cline in violation of Section 8(a) (3) of the Act.5 The Examiner said he did not quite understand "this part about the 8(a) (3)." Counsel for Tennsco at once stated that he did not understand "the 8(3)" and described with some particularity his difficulty. He said he would like to ask "where the 8(a) (3) violation is." He asked, in effect, whether it was that the company selected the wrong members of the union for employment, or whether they should have employed only the individuals listed, or whether when they hired six non-union people they should have hired union members as listed; "and if we did discriminate, whom did we discriminate against." The prosecutor said: "I don't think it is necessary at this time to give the defendant any more information." The Examiner commented that he shared some of the questions about the pleadings. The hearing then proceeded.
The difficulty stemmed from the complaint. From it and Government exhibits it appeared (1) discrimination against 66 named persons was charged, (2) Tennsco had twenty employees, (3) of the twenty Tennsco employees fourteen had been Cline employees and members of the union, and (4) eight of the persons employed by Tennsco and formerly employed by Cline were listed among the 66 discriminatees.
The inquiry of counsel for Tennsco, shared by the Examiner, was a real one. A charge that Tennsco discriminated generally against all union members or all former Cline employees would pose an issue of company policy. The evidence pro and con would consist of basic attitudes, general declarations and past history concerning any and all employees. A charge that the company had discriminated against certain named persons individually (some or all of the 66 named) would pose quite a different question. The individuals would have to be named, and particularized acts, or threats, aimed at the individual or individuals named would constitute the pertinent evidence. Of course either or both of these practices or actions, general or individualized, might constitute a violation of the Act, and that is not our problem. Our problem is one of pleading and procedure.
Other features of this complaint were also obscure. Since Tennsco had hired only six non-union members, its discrimination, if on an individualized basis, must have been in respect to these six hirings. On that basis, which of the 66 were the six discriminatees? That dilemma indicates rather clearly that the discrimination contemplated by the complaint was a general anti-union bias and discrimination. The fact that the complaint charged discrimination against persons actually already hired by Tennsco also indicated that the gravamen of the alleged offense was a general mass discrimination against all union members. If the offense charged and to be tried was indeed an alleged general anti-union discrimination, this complaint posed for decision a problem as to Tennsco's obligation in hiring. Cline had had fifty or sixty union-member employees. Tennsco had only twenty employees. Was Tennsco obligated to hire only union members? It hired fourteen union members. Was it obligated to complete its roster with union members? This was a new corporation. It had as yet no contract with a union. Would not a compulsory all-union hiring have been an illegal closed shop? None of the problems thus indicated would arise if the complaint meant to charge individual discrimination against certain individuals not hired. Thus the problem of proof faced by counsel for Tennsco at the outset of his case was a real one.
When the prosecutor rested his case the following occurred:
The queries of counsel for Tennsco and of the Examiner were renewed at the end of the hearing, and the prosecutor said:
This colloquy shows that the Examiner was still perplexed about the offense charged. And it also shows that the prosecutor, at the end of the hearing, said he could not say what persons should have been hired, or that a named person should have been hired. But the offense finally found by the Board, as we shall see in a moment, was upon the basis that two certain persons, Sullivan and Greer, should have been hired. This is precisely what the prosecutor said, at that point, he could not show.
The Board sustained the Examiner in holding there was no "mass discrimination," that is, no discrimination against union members generally, but that there was proven discrimination against Sullivan and Greer. Tennsco says the latter issue was never raised and never tried; it never had an opportunity to defend against that charge.
It is well established, specifically by the statute,6 by the case law,7 and by the principles of fundamental fairness that one cannot be found guilty of an offense not encompassed by the complaint or of which he had no fair notice. The Supreme Court has...
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