BERKSHIRE EMPLOYEES ASS'N, ETC. v. National Labor R. Bd., 7254
| Decision Date | 19 June 1941 |
| Docket Number | 7255.,No. 7254,7254 |
| Citation | 121 F.2d 235 |
| Parties | BERKSHIRE EMPLOYEES ASS'N OF BERKSHIRE KNITTING MILLS v. NATIONAL LABOR RELATIONS BOARD. BERKSHIRE KNITTING MILLS v. SAME. |
| Court | U.S. Court of Appeals — Third Circuit |
Wm. M. Rutter, of Reading, Pa., for petitioner Berkshire Employees Ass'n.
Joseph W. Henderson, of Philadelphia, Pa., and Bertolet & Bertolet, of Reading, Pa., for petitioner Berkshire Knitting Mills.
Ruth Weyand, of Washington, D. C., for respondent.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
This case comes before the court on petitions by Berkshire Knitting Mills and Berkshire Employees Association to review and set aside an order of the National Labor Relations Board, and on a cross-petition by the Board for enforcement of its order.
Prior to the hearing on the main part of the case Berkshire brought to this court a petition to adduce additional testimony. The court received that motion and ruled that it would be passed upon at the time of the presentation of the main case. This was done. After-events proved that the procedure was a wise one because the problems presented in the petition to adduce fall into perspective when viewed in the light of the main case.
Berkshire's motion for leave to adduce additional evidence contains a number of items which it contends show that it did not have a full and fair hearing before the Board, thus supporting its argument that the Board's order should not be enforced against it. Several of the grounds are so clearly lacking in merit that they might be dismissed as frivolous. It may be said as to them all, however, that none will be refused on the ground that it was not made in timely fashion. Nor was any of the evidence sought to be adduced available to the petitioner at the time of the hearing. We have considered each point on the basis of what effect the evidence, if received, could have on the factual situation presented by the case.
1. Berkshire desires to show an inter-office communication from the then secretary of the Board to its counsel in which the secretary relays a message from the general counsel of the Hosiery Workers1 expressing the hope that the case could go to the Second instead of the Third Circuit because of the faster operation of legal process in that Circuit than in this. While such testimony might leave a rather astringent taste in the judicial mouth of this Circuit it is obvious there is nothing in this which, by any flight of the imagination, shows lack of due process of law for Berkshire.
2. Complaint is made that Mr. Joseph B. Robison, a review attorney of the Board, had access to the Board's formal and informal files; likewise, that the outline used by an expert at the hearing, Mr. Saposs, was subsequently sent to Mr. Robison. This may be answered in a dozen ways, one of which is that Mr. Robison is not the responsible fact finder; the Board is. There is no merit in this point.
3. A letter of inquiry from the Board's secretary to the Board's Regional Director asking for facts in connection with Berkshire which would indicate unfair labor practice. If the showing of such letter would prove anything this court is unable to understand what it would prove other than the fact that an inquiry was made.
4. A letter from a member of the "Review Section" of the Board to its secretary tending to show that the Board's investigator did not call upon the employer in response to the latter's offer to cooperate prior to the issuance of a complaint on the charges. This point is utterly immaterial.
5. Evidence tending to show that the Board refused to grant Berkshire a continuance for fifteen days until its superintendent returned from Europe, although the Board had delayed the issuance of its complaint for more than nine months at the request of the Union. There is nothing in this. The superintendent was present and testified at the hearing.
6. Charges in this case were filed January 20, 1937. The complaint was not issued by the Board until November 6, 1937. The evidence which Berkshire seeks to adduce on this point consists of memoranda mainly from the Regional Director to the Board's secretary. They tend to show that the postponement of the issuance of the complaint was at the request of union officials or their representatives and requested for various reasons having to do with Union tactics and strategy in connection with the strike then being carried on at the Berkshire mills. The matter of time with regard to the issuance of a complaint by an administrative body must necessarily be one of the matters within the discretion of that body. Numerous considerations may make it desirable that a complaint be issued promptly or be delayed, for example, pending a court decision, or the likelihood of settlement of a dispute by other means; these and others are matters in which the judgment of the administrative agency must be exercised. We do not find lack of due process of law in the fact of the delay or the failure to consult one of the parties to a hearing as to his convenience in the matter.
The reason for the delay is one of the elements which the Board, in the exercise of its discretion, may well consider, among other relevant matters, in framing a back pay order. This does not mean, however, that the memoranda described need to be made a part of the proceedings in this case. They are already in the files of the Board. The motion to adduce upon this point is denied.
7. Berkshire seeks to adduce evidence which it alleges members of the staff of the Board suppressed and which, it is urged, shows that the strike at Berkshire's mills in the fall of 1936 was not caused by unfair labor practices, but was called for economic reasons. The motion on this point will be denied. In the first place it is already in the files of the Board. In the second place it is nothing more than a memorandum of the report of the field officer of an administrative agency to an official in the home office and is, at best, hearsay with regard to issues involved in the strike in progress at the time the report was written. In the third place, it would be utterly impracticable and undesirable to open up all the records and files of a public officer, a board or a court to examine all the...
To continue reading
Request your trial
-
National Labor Relations Board v. Baldwin L. Works
...of the subject-matter of the instant complaint other than officially and directly. The case of Berkshire Employees Ass'n, etc., v. National Labor Relations Board, 3 Cir., 121 F.2d 235, is therefore not in point; and the current charge of bias and prejudice stands The respondent asserts that......
-
Crump v. Board of Educ. of Hickory Administrative School Unit
...way which we know of whereby the influence of one upon the others can be quantitatively measured." Berkshire Employees Ass'n, Etc. v. National Labor R. Bd., 121 F.2d 235, 239 (3d Cir.1941), quoted in Crump v. Board of Education, 93 N.C.App. 168, 185, 378 S.E.2d 32, 42 (1989). Berkshire invo......
-
Association of Nat. Advertisers, Inc. v. F.T.C.
...biased Commissioner. See American Cyanamid Company v. FTC, 363 F.2d 757, 767 (6th Cir. 1966); Berkshire Employees Association of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3rd Cir. 1941). Then the Chairman stated that the Commission has "not as a body yet approached the question o......
-
Writers Guild of America, West, Inc. v. FCC
...area but will rely on "self regulation." Moreover, the involvement of Chairman Wiley is uncontested. Cf. Berkshire Employees Association v. NLRB, 121 F.2d 235, 238-39 (3d Cir. 1941). Here the Commission and its members themselves are on trial. As in Amos "The asserted infirmity is fundament......