National Labor R. Board v. Sterling Electric Motors

• Decision Date: 28 October 1940
• Docket Number: No. 9209.,9209.
• Citation: 114 F.2d 738
• Parties: NATIONAL LABOR RELATIONS BOARD v. STERLING ELECTRIC MOTORS. Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

114 F.2d 738 (1940)

NATIONAL LABOR RELATIONS BOARD v. STERLING ELECTRIC MOTORS. Inc.

No. 9209.

Circuit Court of Appeals, Ninth Circuit.

September 13, 1940.

Appeal Dismissed October 28, 1940.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Asst. Gen. Counsel, National Labor Relations Board, all of Washington, D. C., for petitioner.

Hardy & Horwin, Leonard Horwin, and Jack W. Hardy, all of Los Angeles, Cal., for respondent.

Before DENMAN, MATHEWS and HEALY, Circuit Judges.

Appeal Dismissed October 28, 1940. See 61 S.Ct. 69, 85 L.Ed. ___.

DENMAN, Circuit Judge.

This opinion and the foregoing accompanying order arise from the declination of the National Labor Relations Board, for a period of many months, to act under § 10 (e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), on our commitment to it to take further testimony on a charge against respondent of fraudulent deceit constituting an unfair labor practice. From facts later narrated, the delay appears to be purposed to facilitate the Board in pressing what is, in effect, an ex parte certiorari proceeding in the Supreme Court to deprive the Sterling Electric Motors company's Employees' Association of its right of collective bargaining with respondent, to which we have held the Association is entitled.

The Association had been chosen the bargaining agent of respondent's employees by a majority of the respondent's employees and all three of the participating judges agreed that the Association had been organized without employer aid or interference and that a board's order disestablishing it was not warranted by the evidence. Cf. National Labor Relations Board v. Sterling Electric Motors, Inc., 9 Cir., 109 F.2d 194, 210. The court therefore declined to enforce the Board's orders to respondent to cease and desist: "(b) From recognizing Sterling Electric Motors, Inc., Employees Association as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.", and to take affirmative action: "(a) Withdraw all recognition from the Sterling Electric Motors, Inc., Employees Association as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said Association as such representative."

Subsequently we set aside the order we had made declining enforcement of the above and other orders of the Board. On a reargument, granted on the petition of the Board, the court construed the intent of Congress in creating the duty of the Board in "protecting" all unions' rights of collective bargaining.¹ It held that the two orders forbidding the employer to bargain collectively with the Association deprived the Association of that protected right, the sole function of the Association. We declined to decree the enforcement of the order because the Association was not a party to the proceeding. The Court held the Board, so required by Section 1 of the Act to protect the Association's right of collective bargaining, had violated a civil liberty of the union, in failing to give it notice and an opportunity to be heard in a "protecting" proceeding in which it was sought to deprive the Association of that right. National Labor Relations Board v. Sterling Electric Motors, 9 Cir., 112 F.2d 63, 65 et seq.; Id., 9 Cir., 109 F.2d 194, 196 to 204. The reasons for making this order without waiting for the determination of another issue in the case are later stated.

The Board also sought our enforcing decree on orders concerning solely the respondent employer. These orders by the Board to the respondent are to:

"1. Cease and desist:

"(a) From dominating or interfering with the administration of Sterling Electric Motors, Inc., Employees Association or with the formation or administration of any other labor organization of its employees, and from contributing support to said organization or to any other labor organization of its employees;"

"(c) From in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection."

We are in agreement with Judge Healy's statement (109 F.2d 212) that these cease and desist orders (a) and (c) are "calculated to protect the employees, not to overthrow their Association; hence the presence of the latter is in no view a prerequisite to its enforcement."

The crucial finding of fact on which these latter cease and desist orders are based is that a bulletin of respondent attributed to a proposal of the Association the granting of a 40 hour week and time and a half for overtime, whereas the Association had made no such proposal. The judges disagreed on the sufficiency of the evidence to support the finding. The court by a majority held it was not substantial (cf. 109 F.2d 204 to 208) and made an order denying enforcement of cease and desist orders (a) and (c). This order also was set aside.

On the reargument on this finding of fraud, claimed to support these latter orders, the Board suggested that under sec. 10(e) of the Act the matter could be returned to the Board for further evidence respecting the charge. All the judges stated they would welcome such action. Respondent filed a motion for such a proceeding with affidavits completely negativing the fraud. Upon these affidavits Judge Healy regarded the case as "threatening to become moot." 112 F.2d 63, 70. However the Board assured us to the contrary and stated that it would take some time to procure certain witnesses, and that after the hearing "the respondent will want to except to the Board's decision." 112 F. 2d 63, 69.

This meant a delay of possibly two months in the search for the witnesses, the trial examiner's hearing, the hearing before the Board in Washington, its preparation of its findings and decision and return of the proceeding to this court. The Association was in a contest with a rival union and the Board order denying its right of collective bargaining would aid its rival in its arguments with the workers. In refusing to enforce the Board's order so destroying the Association's right to bargain collectively with respondent, the court stated: "Further to delay with regard to this small self-organized union might amount to an unfair labor practice on the part of this court, for in that period the pressure of the Board's order and of its powerful rival well may persuade the men to give up their self-organization as hopeless, and the protection of Section 1 of the Act a vain delusion." 112 F.2d 63, 69.

The form of the 10(e) order on the recommitted issue of fraud was determined May 6, 1940. It seemed likely that the Board's return would be made in time for the July or August session of the court. The Ninth Circuit sits every month of the year and the Circuit Judges individually arrange their vacations to fit the court's monthly sessions. The presiding judge wrote the counsel of both the Board and the respondent for advice concerning the date of the return of the recommitted issue to provide for the presence of the three judges participating in the case, if it was to be heard in the July or August session.

Both counsel responded and it appears that the Board did not follow its suggestion that it would consume time in a search for witnesses to refute the allegations of the respondent's affidavits. The trial examiner on May 8, 1940, two days after the determination of the form of the recommitment, heard the respondent's evidence in one day and returned it to the Board.

The Board's general counsel advises us (and it appears in the Board's petition for certiorari) that the Board has determined not to consider the evidence transmitted to it and decide promptly the issue as required by §§ 10(e) and 10(i). On the contrary he states the Board will postpone the consideration of the recommitted issue until the Supreme Court has finally decided a certiorari proceeding on the entirely unrelated order denying the Association its right of collective bargaining without notice or hearing. It is thus apparent that the Board's decision and return of the recommitted issue may thus be delayed from May 8th, when the trial examiner closed the hearing, for a long period — that is until some months into the October term of the Supreme Court. Already the Board's attorneys must know whether or not the one day's evidence vindicated the respondent on the charge of fraud.

Such a refusal to act on the recommitted issue of fraud is a violation by the Board of its duty under section 10(e) of the Labor Act. It is obvious what the delay of these many months may mean to the business reputation of a small manufacturing firm subject to a charge by a powerful governmental agency of a fraud reflecting on its integrity, allegedly committed to accomplish a violation of a federal statute. It is also obvious how it may advantage the competing national union in its contest with the Association for the membership of the workers. That a prompt decision on such a charge is the intent of Congress is shown by Section 10(i) of the Act. c. f. Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 372, 59 S.Ct. 301, 83 L.Ed. 221; National Labor Relations Board v. American Potash & Chemical Corp., 113 F.2d 232, 236.

It is also obvious that a decision holding respondent committed no fraud may make the case moot² and the Board's certiorari proceeding in the Supreme Court fail, while a decision against the employer would not in any way affect the status of that proceeding.

It is...