Before BIGGS, Chief Judge, MARIS and GOODRICH, Circuit Judges.
GOODRICH, C.J.: This is a petition in the usual form for the enforcement of a Labor Board order against the respondent, Pennwoven, Inc.
That portion of the Board's order which concerns interference with employees in their choice of organization is well founded. Indeed, the respondent hardly questions that there is adequate proof of interference by management in free choice by employees when District 50 United Mine Workers, the then bargaining agent at the respondent's plant, was competing with the American Federation of Labor for that position. The decree, in the usual form following proof of such violation of Section 8(a)(1) will be enforced.*fn1
We may dismiss without discussion a contention made by the respondent in which he complains that the Trial Examiner was biased. We have examined both the arguments and the record on which the arguments are based and conclude that there is nothing to this contention whatever.
This brings us to the novel and difficult question in the case. It concerns three employees against whom discrimination because of union activity is charged. The Board has made a reinstatement order with the usual back pay allowance. And the respondent in answering the petition for enforcement makes this portion of the Board's order his chief point of opposition.
These three employees were all concerned in the effort to supplant a District 50 union with the American Federation of Labor. Two of them were very active, the third, husband to another of the three, did not do so much but went along with the activities of his wife. During the period when this unionizing activity was in process the respondent's plant had its usual, annual shutdown period. This was in accordance with past practice and no objection arises to it. When the plant reopened it was operated wih one shift of employees instead of three as before. This was due to business conditions and out of this, too, no complaint arises. As operations continued, after the reopening, there became need for additional employees. It is here that the facts develop out of which controversy on the point under discussion arises.
The Board, on behalf of these three employees, says that they were discriminated against because their activities on behalf of the American Federation of Labor had displeased the employer. The Company says that that is not the case; that one of these employees was incompetent, that another was not rehired because of "personal" reasons and so on. We are not the fact-finders although we do have responsibility for a review of the case upon the "whole record." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951).
On that record there is no difficulty in upholding the conclusion of discrimination which the Board has drawn. We think it a fair inference that management considered these three people a nuisance, especially Jennie Rayhorn, who was the most active in the A.F. of L. organizing work.
This brings us to the exact and difficult point of the case. In the Labor Management Relations Act of 1947 a limitation provision was inserted. Precise words are "Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ..." 29 U.S.C.A. Section 160(b) (Supp. 1950). Is that part of the Board's order having to do with the reinstatement of these employees barred by this limitation provision? The charge in this case was filed April 28, 1949, was amended on July 18, 1950 and the complaint issued on July 18, 1950. We must look to the statutory language and consider whether the conduct on which the reinstatement claim is based took place within the limitations period prior to the filing of the charge.
These three workers were not called back when the plant reopened following the shutdown in the summer of 1948. Under the labor contract then in existence, they were entitled to be called back because of their seniority. Employees junior in seniority to them were put to work and they were left ot. The violation of the contract between the union and the employer is not, of course, an unfair labor practice for us to deal with under the statute. But the failure to recall these employees in order of their seniority because of their activities on behalf of a union not favored by the employer would be an unfair labor practice. The words of the statute are appropriate.
"It shall be an unfair labor practice for an employer ... By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ..." 29 U.S.C.A. Section 158(a)(3) (Supp. 1950).
The employees in question considered themselves to have been discriminated against and initiated grievance proceedings against the employer through District 50. These never came to hearing or settlement. The facts are cited only to show that: (1) There was a basis for the charge of discrimination in July, 1948, and, (2) That these employees were fully conscious of the fact.
Fifth grade arithmetic will show that it is more than six months from the time of this discriminatory failure to rehire and the time charges were filed. But it is contended on behalf of the Board that such discriminatory failure to rehire is comparable to a continuing tort like that of a nuisance created by a factory which emits noxious fumes across the plaintiff's land. See Prosser, Torts, p. 579 (1941). If that theory is taken, the reimbursement for the discriminatory failure to rehire would be limited to the period beginning six months before the charges were filed. This the Board has done in the instant case.
The respondent's position is that this makes a "mockery" of the limitation period established by legislative action. Its theory, though not expressed in these terms, is that a discriminatory failure to reinstate an employee is comparable to a single tort like an assault and battery or ...