National Labor Relations Board v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc.National Labor Relations Board v. Washington Heights-West Harlem-Inwood Mental Health Council, Inc.
Richard J. Reibstein, Epstein Becker & Green, P.C., New York City (Michael A. Kalish, of counsel), for respondent.
Vicki Erenstein, Sipser, Weinstock, Harper & Dorn, New York City, for intervenor.
Before OAKES, Chief Judge, CARDAMONE, Circuit Judge, and POLLACK, District Judge.*
OAKES, Chief Judge:
This case is before us under
The last collective bargaining agreement between the parties was effective from January 1, 1979, through December 31, 1980. From January 1, 1981, to September 1982, the parties had no written agreement and operated under an oral agreement on wages. Negotiations for a new agreement were scheduled to begin on September 16, 1982.
To plan for upcoming negotiations, on Sеptember 15, Union Vice President David White met with a group of employees at 2:00 p.m. in a meeting room at the Center. Several employees rearranged their lunch hours and break periods to attend the meeting. The Center frequently permitted the Union to meet with employees on its premises, although these meetings were generally held at noon or after 5:00 p.m.
Apparently because the meeting was being held during regular working hours, the Center‘s executive director, Dr. Clyde Pemberton, interrupted the meeting, ordered White to leave, and instructed the employees to return to work. White responded that it was a regular Union meeting and that he would not leave until it was finished. Pemberton left, then returned, announced he had a “job action” on his hands, and left the room again.
At the end of the meeting, several employees discovered that their timecards had been pulled. White and thirty to forty employees went to the second floor to speak with Pemberton. Pemberton agreed to meet with White only, but White declined on the basis that it was against Union policy for a Union official to meet with management unaccompanied by an employee. The employees and White remained outside Pemberton‘s office chanting in unison to have their timecards returned and to see Pemberton. In the meantime, because of the state of disorder, the Center locked its doors to the public. At about 4:45 p.m., the police arrived and dispersed the crowd of employees.
The following morning of September 16, the day set for contract negotiations, approximately twenty-six employees were issued disciplinary letters accusing them of an illegal work stoppage during the previous afternoon and informing them that their pay would be docked for the time between 2:00 p.m. and the close of their regular duty. At the afternoon‘s scheduled bargaining session, Pemberton refused to discuss with White the events of thаt day and of the previous afternoon. The parties then discussed the Union‘s proposals for a new contract, but no agreement was reached on any issue.
At the close of the meeting, Pemberton was informed that the Union had sent the Center a telegram serving ten-day notice of the Union‘s intent to strike on September 28 at 9:00 a.m. Written notice specifying the date and time of a strike is required by
The telegram arrived the next day, September 17. At 5:00 p.m., thirteen employees discovered their timecards missing and were issued termination letters. The emрloyees refused to accept them, because they were not accompanied by final paychecks. The letters were rescinded, but then reissued for eleven employees the following Monday, September 20. The stated basis for the termination letters was that the employees had engaged in another work stoppage by their delay in returning to work on September 16 after receiving their disciplinary letters.
On this same day, September 20, the employees confirmed by vote their decision to strike on September 28 because of the discharge of the eleven employees. The following day, however, they decided to move the strike to one day later in order that they might receive their pay checks on payday, September 29, prior to walking out. The Union gave no written notice of this change to the Center.
On September 22, the Union and the Center met again for further contract negotiations. Notwithstanding White‘s apology for holding the September 15 meeting, Pemberton refused White‘s request to reinstate the eleven discharged employees. Amidst conflicting testimony, the administrative law judge in this case found that White also told Pemberton that the employees planned to strike on September 29, one day later than the initial date specified in their notice, through his alleged statement that “if we have not settled the issues that exist between us by the 29th, when the 29th comes we‘re going to find ourselves on the street.”
Three separate sets of charges under
On January 19, 1983, the Center filed the second charge, alleging that the Union violated
On January 23, 1984, the Regional Director issued complaints based on the second and third charges by the Center and the Union, respectively. The theory of the first complaint was that the Union commenced its strike and picketing without giving the Center proper notice. The principal theory of the second complaint was that the thirty-four discharged employees were entitled to strike in response to the Center‘s earlier discharge of the eleven employees, notwithstanding the ten-day notice requirement, because it was either excused, by virtue of the Center‘s unfair labor practice, or satisfied, by virtue of White‘s statement to Pemberton at the September 22 meeting.
In view of the extent to which the complaints overlapped in issues of fact and law, the Regional Director consolidated the complaints for a joint hearing, even though they advanced mutually inconsistent legal theories whether the Union gave proper notice of the strike. Because of this inconsistency in legal theories, the General Counsel appointed two attоrneys to present a prima facie case for each complaint. The parties were advised in the order consolidating the complaint that “in view of the unique nature of this proceeding the role of the Counsel for the General Counsel may be limited in regard to rebutting evidence proffered by a Respondent. The Charging Parties, therefore, may wish to have counsel or other representatives present to insure a complete record.” In a subsequent letter dated April 9, 1984, the Regional Director informed the Center‘s attorney that the General Counsel‘s appointed attorneys would impeach witnessеs only to the extent that it would not conflict with the alternative theory as to notice of the other complaint. This left the burden upon counsel for both parties to adduce evidence and develop further their own cases beyond that done by the General Counsel.
On December 31, 1985, the administrative law judge decided both complaints in the Union‘s favor. As a preliminary matter, the judge found that the Center had not been denied due process by the Regional Director‘s and the General Counsel‘s handling of the complaints and by the unusual manner in which the case was presented at the hearing. The judge found, moreover, that the settlemеnt agreement of June 1, 1983, did not prohibit her from inquiring whether the Center‘s discharge of the eleven employees was an unfair labor practice. Such an inquiry, of course, was necessary for the judge to determine, first, whether the employees were engaged in an “unfair-labor-practice strike” and thus protected from discharge, and, second, whether the Union might be excused from the ten-day notice requirement under the exception carved out for unfair-labor-practice strikes in Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S. Ct. 349, 100 L. Ed. 309 (1956) (unfair-labor-practice strike did not cause employees to lose protected status for violations of sixty-day waiting period under
The Board dismissed the complaint based on the Center‘s charge and, acting on the other complaint, entered an order requiring the Center, first, to cease and desist from discharging or discriminating on the basis оf Union activities and, second, to offer each of the thirty-four discharged employees back pay with interest and immediate reinstatement to their former jobs or substantially equivalent jobs without any prejudice to seniority or other rights and privileges.
On this appeal, the Center raises three reasons for denying enforcement of the Board‘s order: (1) that it was denied due process of law by the Regional Director‘s and General Counsel‘s handling of the case; (2) that any finding of an unfair labor practice by the discharge of the eleven employees was barred by either the settlement agreement or the six-month statute of limitatiоns; and (3) that the ten-day notice requirement was neither excused nor satisfied. We find no violation of due process and find that neither the settlement agreement nor the statute of limitations bars a determination that the discharge of the eleven employees was an unfair labor practice. We conclude, however, that the notice requirement was violated, because it was not excused or satisfied, and therefore deny the Board‘s petition for enforcement of its order.
DISCUSSION
1. Whether the Center Was Denied Due Process
The Center unleashes a menagerie of due process objections to the manner in which the complaints were issued, the order сonsolidating the two complaints, and the conduct of the investigation and the hearing before the administrative law judge. The Center stresses that the overall handling and hearing of this case was highly unusual, even unprecedented. We must note, however, that unless the Center shows some violation of established law or procedures, see International House v. NLRB, 676 F.2d 906, 912 (2d Cir.1982), or that it was specifically prejudiced, see Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir. Jan. 1981), an element of confusion or novelty alone does not violate due process. We now take up each objection in turn and consider whether the Regional Director or General Counsel impermissibly departed from established procedures or caused prejudice to the Cеnter.
The Center directs us to no authority for the proposition that the Regional Director lacked the power to issue two complaints advancing inconsistent legal theories. On the contrary, the Regional Director has broad discretion under
Similarly, the Regional Director had broad discretion to consolidate the two complaints for a joint hearing to avoid unnecessary costs and delay. See
At the hearing stage, due process requires no more than a “fair hearing.” See Barrus Constr. Co. v. NLRB, 483 F.2d 191, 194 (4th Cir.1973). The procedures of a hearing are fair and satisfy due process if, in general, each party has sufficient opportunity to prepare its case, see NLRB v. Coca Cola Bottling Co., 811 F.2d 82, 87 (2d Cir.1987), and the opportunity to call and cross-examine witnesses and to present pertinent evidence in support of its case. See Barrus, 483 F.2d at 194; see also International House, 676 F.2d at 911; Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1277-95 (1975). The failure of the General Counsel‘s appointed counsel for the Center‘s case to object to or to rebut certain evidence, or to impeach certain witnesses, did not violate due process, because the Center was given advance notice and a full opportunity to participate.
Nothing in the Act or the Board‘s rules and regulations prоvide that the General Counsel shall bear exclusive prosecutorial responsibilities at a hearing. To the contrary, any party may appear at a hearing to introduce evidence and to call, examine, and cross-examine witnesses. See
Finally, the Center contends that it should have been permitted access to the General Counsel‘s investigative file. Pretrial discovery in Board proceedings is neither constitutionally nor statutorily required. See NLRB v. Lizdale Knitting Mills, Inc., 523 F.2d 978, 980 (2d Cir.1975) (per curiam). Moreover, the General Counsel is not obligated to allow discovery of its own investigative files, because to do so might compromise its enforcement actions and allow intimidation of potential witnesses whose statements are in the file. See NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452, 469 (5th Cir.1983); cf. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236-43, 98 S. Ct. 2311, 2323-27, 57 L. Ed. 2d 159 (1978) (Freedom of Information Act does not compel pre-hearing disclosure of potential witness statements from NLRB files). Because the General Counsel sealed its investigative file not just to the Center but also to the Union, no prejudice resulted. In addition, because the Center‘s management was intimately involved in the events at issue, the Center had no special need for the investigative files. It had ample opportunity without the assistance of the investigative file to develop and present its case.
2. Whether Inquiry into the Center‘s Discharge of the Eleven Employees Is Barred
The next issue before us is whether either the settlement agreement or the six-month statute of limitations prevents inquiry into whether the Center‘s discharge of the eleven employees in September 1982 was an unfair labor practice. As noted earlier, such a finding is a necessary predicate to determining that the strike was protected activity for which the striking employees could not be discharged, see Mastro Plastics, 350 U.S. at 278, 76 S.Ct. at 355; NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 754 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), and that the notice requirement might be excused pursuant to the Mastro Plastics exception.
The Center contends that the settlement agreement of June 1, 1983, prohibits a finding that its discharge of the eleven employees was an unfair labor practice. However, the reservation-of-rights clause in the settlement agreement provides:
[T]his Agreement shall not preclude the introduction by any party of any evidence contained in [this case] in any forum, in any other proceeding or investigation.... The instant Settlement Agreement settles only the unfair labor practice charges in [this case] and does not settle any other cases currently pending before the Regional Office ... nor does it constitute a waiver of any claims that any party may have.
The Center also argues that the six-month statute of limitations of
3. Whether the Union Violated the Ten-Day Notice Requirement
We finally arrive at the central issue presented in this appeal: whether the Union either satisfied or was excused from the ten-day advance notice requirement under
We first consider whether the notice requirement was satisfied. The administrative law judge found that White‘s alleged statement at the September 22 meeting put the Center on notice that the strike date had changed to September 29. This is not enough. Whether White‘s statement is considered to be a new notice or an extension of the first notiсe,
The administrative law judge relied upon legislative history indicating that a strike or picketing need not occur at the precise time specified in the notice and that it would be reasonable to allow the strike or picketing to begin up to seventy-two hours past the time specified in the notice, so long as at least twelve-hour notice was given of the actual time for the commencement of the action. See S.Rep. No. 766, 93rd Cong., 2d Sess. 4 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 3946, 3949; H.R.Rep. No. 1051, 93rd Cong., 2d Sess. 5 (1974).3 Wе need not, however, decide what weight, if any, to give to the legislative history, because the Union did not provide twelve-hour supplementary notice of the time of day that the strike would begin.
We now turn to whether the notice requirement was excused. One of the administrative law judge‘s grounds for excusing the notice requirement was Pemberton‘s refusal to engage in mediation efforts with the Federal Mediation and Conciliation Service shortly before the strike. This determination was based on the following statement in the Senate report:
[I]t is the sense of thе Committee that during the ten-day notice period the employer should remain free to take whatever action is necessary to maintain health care, but not to use the ten-day period to undermine the bargaining relationship that would otherwise exist.... While not necessarily a violation of the Act, violation of these principles would serve to release the labor organization from its obligation not to engage in economic action during the course of the ten-day notice period.
See S.Rep. No. 766, supra, at 4-5, 1974 U.S.Code Cong. & Admin.News at 3950. We have doubts about the force of this legislative history. This language carves an explicit exception to thе notice requirement allowing retaliatory strikes against employers that transgress “principles” of conduct that may not even violate the Act itself. Where the full Congress has not done so, we cannot create an exception to the Act. To borrow the words of Justice Cardozo: “We take the statute as we find it.” Anderson v. Wilson, 289 U.S. 20, 27, 53 S. Ct. 417, 420, 77 L. Ed. 1004 (1933).
Finally, we consider whether the notice requirement was excused under the Mastro Plastics exception for unfair-labor-practice strikes. In Mastro Plastics, as we have suggested, the Supreme Court found that organized employees were free to strike without losing their protected status under the Act in response to an employer‘s flagrant unfair labor practice, notwithstanding that the sixty-day notice-of-strike period required under
In enacting
Even assuming that the Mastro Plastics exception applies to
CONCLUSION
We find the Center was not denied due process by the handling of this case, and that the Board could properly find that the discharge of the eleven employees was an unfair labor practice. But, because we are unable to find that the notice requirement was either satisfied or excused, we deny the Board‘s petition for enforcement of its order.
The petition of the Board is denied.