Before DUFFY, MAJOR and KNOCH, Circuit Judges.
KNOCH, C.J.: Peabody Coal Company, petitioner, seeks to review and set aside order of the National Labor Relations Board issued December 15, 1959 (125 NLRB No. 88). The Board, respondent, cross-petitions for enforcement of that order. The order issued on authority of § 10(c) of the N.L.R.B. Act, as amended (29 U.S.C.A. § 151, et seq .) and this Court has jurisdiction under § 10(e) and (f) of the Act.
Peabody is engaged in mining coal for sale in interstate commerce.
The Board found that Peabody threatened employees at its Astoria mine with reprisals for filing and handling grievances, and that Peabody implemented the threats some years later by discriminating against those who did file grievances, when Peabody was selecting production employees for its new mine at Pleasant View. The Board held that Peabody thereby violated § 8(a)(1) and (3) of the Act in interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under the Act and in discrimination with regard to tenure etc., to discourage membership in any labor organization.
The consolidated Complaint alleged violations of the Act through threatening statements allegedly made by named supervisors and through discriminatory discharge of the fifteen charging parties. Peabody filed a motion for bill of particulars and motion for production of affidavits taken from probable witnesses. These were denied by the Trial Examiner.
The allegations of the consolidated Complaint were overly vague and general, consisting largely of conclusory statements. Typical allegations are:
"(a) On or about August, 1957, and January, 1958, Jack Barding threatened employees with reprisals because they had engaged in union and/or concerted activities."
"(e) On or about September, 1957, W. H. Price told an employee that if he had not previously engaged in union and/or concerted activities, the Respondent would not take reprisals against him."
"VII. Respondent, by its officers, agents and supervisors, while engaged in the operation of its business described above, did discriminatorily discharge the employees named in Appendix 'A' attached hereto on or about the dates set forth opposite their names for the reason that they engaged in union or concerted activities for the purpose of collective bargaining or other mutual aid or protection and has at all times thereafter failed and refused to reinstate them to their former or substantially equivalent positions for the same reason."
Peabody thus remained in ignorance of the specific things of which it was accused until the charging parties and other witnesses testified. We agree that a bill of particulars was in order, as the subsequent proceedings indicate that the allegations in the Complaint did not sufficiently advise Peabody of the nature of the violations charged.
The Board contends that ample notice was given, relying on American Newspaper Publishers Assn. v. N.L.R.B ., 7 Cir., 1951, 193 F.2d 782. In that case, this Court said (at p. 800):
"All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense."
Here nothing was said to indicate that the unfair labor practice charged cons activities consisted of processing grievances.
In the American Newspaper case, the respondents asserted that they were charged only with "attempting" not "causing" discrimination, and that the Board could not, therefore, find that discrimination had been "caused." This Court held (at p. 803) that an allegation that respondents "attempted to cause and are attempting to cause" and setting out the means employed, was sufficient to put respondents on notice that they were also charged with having caused discrimination, and to enable them to defend against that charge.
The Board cites Lloyd A. Fry Roofing Co. v. N.L.R.B ., 1 Cir., 1955, 222 F.2d 938, 940, for the proposition that it was necessary for the Complaint only to set out the approximate dates and the names of the perpetrators of the alleged violations. In the Fry case, the Court did say that it was sufficient to inform the petitioner of the month in which the alleged questioning and threatening of employees concerning union activities had occurred and that the general superintendent and assistant general superintendent were the officials who took part in the violations. Unlike the case before us, however, Fry involved only two charging parties and these two had in fact been discharged from a going concern. In N.L.R.B. v. S. W. Evans & Son, 3 Cir., 1950, 181 F.2d 427, to which our attention is also invited by the Board, the Court noted (at p. 431) that the complaint there stated with reasonable specificity, in seven sub-paragraphs, the nature of the violations allegedly committed during the period from November, 1946, to January 19, 1948. Evans sought particulars with respect to the names of those who allegedly committed the unfair labor practices and the approximate times thereof. The Trial Examiner required answer to the first request only. On appeal, it was undisputed that there was substantial evidence to support the Board's findings. The Intermediate Report in that case, (81 N.L.R.B. 164) describes some sections of the Complaint as follows (at p. 169):
"Paragraph 8, subdivision F, of the complaint alleges that the Respondent violated Section 7 of the Act in that it engaged in conduct and statements on the day of the election to influence employees not to vote in the said election."
"Paragraph 8, subdivision G, of the complaint alleges that the Respondent violated Section 7 of the Act in that it posted a notice to its employees derogating the Union's status as exclusive bargaining representative. The notice reads as follows: . . ."
These, it will be seen, are far more specific and informative than the allegations of the Complaint in the instant case. The Court in the Evans case held that examination of the record failed to reveal that any prejudice of a measurable degree accrued to the respondent from the ruling complained of.
It does appear that in the case before us, at the conclusion of each witness's testimony, the General Counsel made available to Peabody such pretrial statements of such witness as were in the General Counsel's possession. Besides depriving Peabody of statements of persons not called as witnesses by the General Counsel, Peabody contends that this procedure resulted in lack of due process by denial of adequate time to prepare to meet the charges. However, apart from renewing its aforesaid motions at the commencement of the hearing, it does not appear that Peabody requested and was denied appropriate continuances in the course of the hearing or at the conclusion of the General Counsel's case.
We cannot agree that Peabody was denied a fair hearing and due process of law by virtue of the denial of its motion for particulars.
Peabody's Astoria mine in Fulton County, Illinois, began processing coal in 1951, and continued to do so until December 13, 1957, after which production at Astoria proper shut down. Construction began at a new mine in Pleasant View, Schuyler County, Illinois, in August, 1957. Full time processing began February 13, 1958. From April, 1957, until January 31, 1958, Peabody was extracting coal from a pit at Camp Ellis, Fulton County, Illinois, which had about a one-year life expectancy. As production decreased at Astoria, many employees were transferred to Camp Ellis or hired for construction work at Pleasant View. The Board found that the more experienced and senior employees, including the fifteen charging parties, went to Camp Ellis where they continued to perform production work at higher rates of pay than they would have earned on the construction work then being done at Pleasant View.
The Intermediate Report states:
"There is no contention herein that the charging parties should have been sent to do the construction work at Pleasant View and no contention that Respondent violated the Act by sending the charging parties to Camp Ellis. However, it does appear to be the contention of the General Counsel that the prevailing circumstances - the simultaneous opening of a production site (Camp Ellis) and of a construction site (Pleasant View) afforded Respondent an opportunity to move, lawfully, its more senior and more union minded employees to a site having a limited production expectancy and its less senior and less aggressive employees to a site having a long production expectancy once it got into production and that Respondent capitalized upon his opportunity when Pleasant View production operations began."
Nevertheless, the Board now contends that a transfer to the lower paid construction work at Pleasant View was considered by the employees to be more desirable than transfer to the higher paid production work at Camp Ellis because of the comparative life expectancies of the two sites.
One of the charging parties, Richard Stambaugh, (Joint Appendix, pp. 303-5) left Camp Ellis about August 1, 1957, when "bumped" off his job there by another charging party, Mr. Phillips, and returned to Astoria where he worked until January 13, 1958. Then he was hired to do construction work at Pleasant View until March 5, 1958. He was recalled to do dismantling work at Astoria from about June 30, 1958, to the middle of July, 1958. (Joint Appendix, p. 321) He testified that he was called back to Pleasant View for construction work in the fall of 1958.He stated first that this was in October or November and ran to the latter part of November, but corrected that on cross-examination as being from August to the latter part of October. None of the other charging parties worked at Pleasant View.
It does not appear that any of the charging parties requested construction jobs at Pleasant View while on production work at Camp Ellis, even after hearing the warnings, to which they testified, of short term employment there. Lester Phillips, one of the charging parties, stated (Joint Appendix, p. 163):
"Well, sir, I was on production and it just isn't done for a man to bump from a production job to a construction job. For one think it's less pay and it's not as steady a work, so it just isn't done. But I was older in seniority than the man that was put on there as second shift ground man, which I was, so when this machine went into operation, I should have been allowed my seniority rights with the company to bump into that job."
When Pleasant View was ready for production, the employees for production were chosen from the approximately one hundred twenty employees who had been doing the construction work. The names of the other construction workers were placed on a panel from which future production employees would be selected as needed. The Board argues that Peabody could have hired any of the charging parties for construction and thus qualified them for production work. One of the charging parties, Mr. Stambaugh, as indicated, was hired for construction but was not selected to remain as a production worker. The Intermediate Report states that Peabody was not obliged to select its production workers from those who had previously done the construction work, but that this was not an unusual procedure. It was apparently followed at the Astoria mine. Mr. Stambaugh, for example, testifying about his initial employment at the old Astoria mine, said (Joint Appendix, p. 299):
"I started on construction as everybody else."
This was corroborated by other charging parties. Once they were chosen for production work, the seniority of production workers ran from the date they were hired for construction, although they were not chosen for the initial production crew in the order of that seniority.
The evidence to which the Board points to prove that Peabody was not obliged to follow this procedure of selecting production from construction employees (Joint Appendix, pp. 747, 755) deals with Mr. Imlay's testimony, on cross-examination, to the effect that Peabody could in the first instance select production crew members from among the construction panel regardless of seniority and could hire a man outside that panel if there were no men on the panel qualified for a specific job. He stated that only one such outside man had been engaged. However, on redirect examination, he testified further regarding the specific work which this man was hired to do, and it appeared that the work was of a construction rather than a production nature. (Joint Appendix, p. 784) The evidence indicated that Peabody had a continuing problem of keeping the old mine at Astoria and Camp Ellis going and maintaining a sufficient crew there while it was setting up the new mine at Pleasant View.
The charging parties originally contended that their seniority rights from the old mine at Astoria carried over to the new mine at Pleasant View, and appealed on that basis to their own Union. After a full hearing at which opportunity was given to submit such evidence as desired in support of the appeals, the Union found that Pleasant View was a new mine and that seniority rights acquired at Astoria did not apply. The Board does not take issue with that finding by the Union. The Board concluded, however, that although not obliged to hire the charging parties at the new mine, Peabody had really failed to hire them for production jobs at Pleasant View, when Camp Ellis jobs were ending, because the charging parties had all been active in processing grievances at the Astoria mine, pursuant to the collective bargaining contract between Peabody and the Local of the United Mine Workers which was the bargaining representative of Peabody's employees at Astoria and Camp Ellis.
The threats are attributed to supervisory employees Claud Reed, Paul Simmler, Jack Barding, William Imlay, W. H. Price, and William V. Hartman. With the exception of Mr. Price, who had died prior to the service of the charges on Peabody, these supervisory employees in ...