Application for Enforcement of an Order of the National Labor Relations Board No. 14-CA-23057 ARGUED FEBRUARY 14, 1996
Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.
Champion Laboratories, Inc. appeals a decision of the National Labor Relations Board ("NLRB") that it violated sec. 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. sec. 158(a)(1), when a supervisor asked an employee how many people attended a union meeting, and when another supervisor suggested to union activists that they should be ready to move to Mexico if the union succeeded in establishing chapters at the plants. Because we find that the record lacks substantial evidence to support the NLRB's findings, we deny enforcement.
Champion Laboratories, Inc. ("Champion," "Company") manufactures automobile filters at three non-union plants in Illinois. The plants employ about 1,750 workers. The United Automobile, Aerospace, and Agricultural Workers ("UAW," "Union") was interested in establishing chapters at Champion's plants, and began an organizational campaign. The Union held meetings for interested employees, and employees who supported unionizing passed out handbills outside the plants. Some employees also wore union buttons, T-shirts, and hats to work.
Champion, apparently, was less than thrilled with the prospect that the Union's endeavors might succeed. Shortly after the handbilling began, it sent employees a letter indicating that major automobile manufacturers were pressuring unionized suppliers to shift operations to Mexico, with the result that "UAW members . . . are losing their jobs in record numbers." The NLRB and the Union accept that the letter was a lawful expression of the Company's views on unionization. 29 U.S.C. sec. 158(c). According to the NLRB, Champion also improperly tried to discourage pro-Union activities, and began enforcing various Company policies selectively against employees who openly supported the Union.
Two such incidents are the subject of this appeal. First, Gregory Benskin, who participated in handbilling and frequently wore several Union buttons to work, was filling out some paperwork related to the day's production in the office of Jim Smith, his supervisor. The two struck up a conversation. There had been a Union meeting the previous day. In the course of the conversation, Smith asked Benskin how many people from their production line had attended the meeting. Benskin told Smith that the meeting "didn't concern him." That ended the exchange; Smith and Benskin continued to talk on other matters.
The second incident occurred while two employees, Carl Bunting and Michael Ferido, were handbilling at an entrance of one of the plants. A supervisor named Judy Tate came out for a cigarette while they were there. Two workers from her production line, Carol Hixenbaugh and Tim Hatton, joined them. Tate asked Bunting what he was doing. In reply, Bunting handed her a handbill; she refused it and commented, "Well, I should have expected something like this from you, Carl." Hixenbaugh asked Bunting why he supported the Union. Bunting explained his position, and Tate then gave her reasons for opposing unionization. There is no suggestion by either party that this conversation was improper. Hatton then commented that if the Union came in, they'd all have to learn Spanish. When no-one understood his "joke," he explained that it referred to the Company's being pressured to move to Mexico. As Bunting and Ferido continued to pass out handbills, Tate added, "I hope you guys are ready to pack up and move to Mexico." Tate, Hixenbaugh, and Hatton also apparently derived some amusement by the fact that while Bunting was talking to them, workers were entering the plant behind him without receiving handbills. They repeatedly pointed out to Bunting his missed opportunities. When the three had finished their cigarettes, they went back into the plant.
The UAW filed an extensive complaint against Champion with the NLRB, alleging unfair labor practices in violation of sec. 8(a)(1) of the Act. The complaint included the incidents involving Benskin and Bunting: the Union argued that Smith's question to Benskin constituted coercive interrogation, and that Tate's comment to Bunting was an implied threat to shut down the plant. After a hearing before an administrative law judge, the ALJ found in favor of the Union. He ordered Champion to cease and desist the unfair practices, and to post notices informing employees of their rights under the Act. Champion filed exceptions to the ALJ's findings with the NLRB. An NLRB panel affirmed the ALJ's findings, adopting his reasoning as its own. Champion filed a timely petition for review; the NLRB filed a cross-application for enforcement of its order.
Before reaching the merits of the case, we address a complaint Champion raises regarding the procedure with which the NLRB conducts its hearings. In determining whether a company has committed an unfair labor practice, the NLRB gives the company access to pre-hearing statements by NLRB witnesses only after the witness has testified, and then only for the purpose of cross-examination. 29 C.F.R. sec. 102.118(b). This practice, Champion argues, violates its right to due process, because it places the NLRB's counsel at an unfair advantage, and unduly hampers the company's ability effectively to cross examine witnesses. We disagree.
NLRB rules must comport with the due process requirements of the Fifth Amendment. See NLRB v. Carolina Food Processors, Inc., 81 F.3d 507, 512 (4th Cir. 1996). We have long recognized, however, that litigants at Board hearings need not have available the full range of discovery procedures available in the federal district courts. NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402, 407 (7th Cir. 1961), cert. denied, 386 U.S. 823 (1961). The regulation of which Champion complains is analogous to the Jencks Act, 18 U.S.C. sec. 3500, under which a criminal defendant has access to pretrial statements of government witnesses only after the witness has testified. We agree with the First Circuit that just as the Jencks Act provides necessary protection to prosecution witnesses, so the restriction at issue here provides necessary protection to witnesses who will be testifying against an entity which controls their livelihood:
[A] defendant in an unfair labor practice proceeding before an administrative agency is not constitutionally entitled to more [than a criminal defendant]. Not only is the defendant's interest less in a labor dispute, but the need to protect witnesses from reprisal is even more compelling, as a general rule, since the defendant is the witness' employer. . . . If the employer had access to the statement before trial, the employer could effectively discourage the employee from ...