Application for Enforcement of an Order of the National Labor Relations Board.
Before PELL, BAUER, and CUDAHY, Circuit Judges.
Per Curiam. We are called upon to address whether: the National Labor Relations Board (the Board) exceeded the scope of its authority in amending a complaint in the course of an administrative hearing; the notice provided respondent of the amended unfair labor practice claim comports with procedural due process; the particular questioning of an employee constitutes an illegal interrogation.
On August 23, 1979, Michael Dunsworth filed an unfair labor practice charge against respondent alleging that he was fired for trying to organize a union. Dunsworth also stated in the charge that: "I think Greg Doran was the one who told them I was talking to everyone about a union." On October 18, 1979, the Board issued a complaint alleging that respondent's discharge of Dunsworth violated sections 8(a)(1) and (3) of the National Labor Relations Act (the Act). A copy of the charge and the complaint was mailed to respondent. On April 4, 1980, a one-day hearing was held before an Administrative Law Judge (ALJ). James Stuart, a vice president of respondent, was called to testify at the hearing. The Board's General Counsel asked Stuart whether he had a conversation with Doran after the charge was filed. Despite respondent's objection the question was allowed on the ground that it might be relevant in showing the motive for firing Dunsworth. Stuart replied that he asked Doran about his opinion of Dunsworth's job performance, and "if there was union activity going on." According to Stuart, Doran replied that Dunsworth was not a good worker, and that he had never discussed union activity with Dunsworth. The General Counsel further asked Stuart whether he gave Doran a "warning" indicating that he did not have to talk to him about Dunsworth's charge. Respondent objected to the question on the ground that "[t]here's no charge of any kind of interrogation, or anything like that involved in this case," and that "this after the fact couldn't have anything to do with . . . this discharge of Dunsworth's." The ALJ responded that he was "inclined to agree . . . [since] [t]here's no allegation with respect to this other employee." The ALJ then asked the General Counsel whether he was "going to allege that unlawful interrogation." The General Counsel responded: "It depends on his testimony." The ALJ permitted the question, overruling another of respondent's objections. Stuart responded that he did not give Doran any warnings, "because [Doran] doesn't have to talk to [him] anytime he . . . doesn't want to." Stuart was then asked if he had any subsequent conversation with Doran about the charge. Stuart replied that he subsequently spoke to Doran only about Dunsworth's job performance. Stuart also stated that his inquiries, subsequent to the filing of the complaint, did not indicate that Dunsworth ever "really push[ed]" to organize a union. At the beginning of the hearing's afternoon session, following the conclusion of Stuart's entire testimony, the General Counsel moved to amend the Board's complaint to allege "that the Respondent on or about August 24, 1979, by a supervisor and agent, James Stuart interrogated its employees about their union activities in violation of 8(a)(1) of the Act." Petitioner repeatedly objected to the amendment, claiming "lack of fair notice," and that the General Counsel's conduct was "unconscionable" in light of the fact that the Board "had an opportunity to investigate their cases beforehand." The ALJ permitted the amendment.
On February 3, 1981, the ALJ issued a decision recommending that the complaint be dismissed in its entirety. The ALJ held that "the General Counsel has failed to prove an essential element of his prima facie case i.e. that Respondent had knowledge on or before July 12 that Dunsworth or, indeed, any of its employees was engaged in union and protected concerted activity." The ALJ found that "Dunsworth was not a good employee . . . and this was a reason, if not the most important reason, why he enlisted the aid of a union." The ALJ further held tht respondent did not violate section 8(a)(1) of the Act by Stuart's interrogation of Doran following receipt of Dunsworth's charge.
The Board affirmed the ALJ's dismissal of the claim relating to Dunsworth's firing, but reversed as to the claim of an unlawful interrogation. The Board concluded that the "interrogation was coercive and that the standards of Johnnie's Poultry [are applicable]." The Board held that: "By coercively interrogating employee Doran, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." The Board issued a cease and desist order and required the customary affirmative actions.
"The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce." NLRB v. Fant Milling Co., 360 U.S. 301, 307-308, 3 L. Ed. 2d 1243, 79 S. Ct. 1179 (1959).Only the Board is responsible for conducting a full inquiry and framing the issues. Id. at 307. However, the Board has no authority to investigate alleged unfair labor practices on its own initiative, 29 U.S.C. § 160(b); National Licorice Co. v. NLRB, 309 U.S. 350, 84 L. Ed. 799, 60 S. Ct. 569 (1940). The Board's investigatory machinery may only be initiated by a filing of a charge. The Board may decline to issue a complaint if it believes the charges are not susceptible of proof.
Petitioner contends that the "mid-trial" amendment of the complaint was time-barred by section 10(b) of the Act, 29 U.S.C. § 160(b).*fn1 We disagree. The six-month limitation applies only to the filing and service of a charge, and not to the issuance or amending of a complaint.*fn2 Procter & Gamble Manufacturing Co. v. NLRB, 658 F.2d 968, 985 (4th Cir. 1981), cert. denied, 459 U.S. 879, 103 S. Ct. 175, 74 L. Ed. 2d 144 (1982); NLRB v. Dinion Coil Co., 201 F.2d 484 (2d Cir. 1952). A complaint may be amended at any time prior to issuance of the Board's order, 29 U.S.C. § 160(b), so long as the charge was filed and served within six months of the alleged unfair labor practice. Id. at 491. A complaint or an amended complaint, although filed and served after six months, may allege violations not alleged in the charge if they did not occur more than six months prior to the filing and service of the charge, and they are closely related to the violations which are contained in the charge.*fn3 Indiana Metal Products Corp. v. NLRB, 202 F.2d 613, 619 (7th Cir. 1953).
We believe that the Board was acting with the scope of its authority in amending the complaint to include the allegation of unlawful interrogations, since that unfair labor practice is related to the claim of illegal discharge of an employee which was "alleged in the charge"; and furthermore the amended allegation grew out of the original allegation "while the proceeding [was] pending before the Board." NLRB v. Fant Milling Co., 360 U.S. at 307; Nazareth Regional High School v. NLRB, 549 F.2d 873, 882-83 (2d Cir. 1977). The Board's close scrutiny of Dunsworth's charge might have included an inquiry into whether the employer had engaged in interrogation of employees in order to identify employees involved in union activities since employer identification of union supporters would be a necessary step for discriminatory treatment of selected employees. Additionally, a proper Board investigation of the employer's motivation in discharging Dunsworth might have involved an inquiry into whether the employer had interrogated or threatened employees because of their union activities. In summation: the specific claim in the charge and the claim in the amended complaint were closely related in time; most importantly, the alleged interrogation would never have occurred but for the original charge, Texas Industries, Inc. v. NLRB, 336 F.2d 128, 132 (5th Cir. 1964); furthermore the evidence used as a basis for the amended complaint would have been gathered during a proper investigation of the charge. NLRB v. Rex Disposables, 494 F.2d 588, 591 & n.1 (5th Cir. 1974); Douds v. International Longshoremen's Association, 241 F.2d 278, 284 (2d Cir. 1957). Thus we conclude that inclusion of the claim of an illegal interrogation was not beyond the scope of the Board's authority, and that a filing of a new charge was not required to support the additional claim contained in the amended complaint. See NLRB v. International Union of Operating Engineers, 460 F.2d 589, 601 (5th Cir. 1972).
We now examine whether the manner in which the Board exercised its authority comports with respondent's procedural due process right to meaningful notice and a fair and full opportunity to meet the amended claim.
Adjudication depends upon adverse parties to gather and present relevant evidence, and to challenge the evidence introduced by the other party.Thus, adequacy of notice is an essential prerequisite to fair and effective adjudication. Due process requires that before the government can take enforcement action against persons charged with unlawful conduct, it must inform such persons of the basis of the complaint and give them a meaningful opportunity to meet the complaint. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 350, 82 L. Ed. 1381, 58 S. Ct. 904 (1938); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1973 (1st Cir. 1981); Administrative Procedure Act, 5 U.S.C. § 544(b)(3) ("Persons entitled to notice of an agency hearing shall be timely informed of . . . the matters of fact and law asserted."). The Board's complaint, which may be liberally amended, is designed to give adverse parties notice of the exact nature of the charges so that they may prepare their case, and sets the standard of relevance at the hearing before the ALJ. Soule Glass & Glazing Co. v. NLRB, 652 F.2d at 1074; NLRB v. International Union of Operating Engineers, 460 F.2d at 596.
When a party is not given meaningful notice of a claim by way of the pleadings, the Board may nevertheless decide that claim if it was fully litigated. The requirement of a full litigation however does not merely entail that the particular unfair labor practice be referred to in the record of the administrative hearing. Full litigation is one way of satisfying the fairness of the means of appraisal of the claimed unfair labor practice. Whether fair notice is given by way of pleading, or by way of the course of the proceeding of a full litigation, the crucial focus at all times is on whether notice was given which provided the party with an adequate opportunity to prepare and present its evidence. Soule Glass & Glazing Co. v. NLRB, supra; NLRB v. International Union of Operating ...