CG Conn, Limited v. National Labor Relations Board

• Decision Date: 22 December 1939
• Docket Number: No. 6848.,6848.
• Citation: 108 F.2d 390
• Parties: C. G. CONN, Limited, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

108 F.2d 390 (1939)

C. G. CONN, Limited, v. NATIONAL LABOR RELATIONS BOARD.

No. 6848.

Circuit Court of Appeals, Seventh Circuit.

December 22, 1939.

Verne G. Cawley, of Elkhart, Ind., for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Mortimer B. Wolf, Bertram Edises, and Malcolm S. Mason, Attys., National Labor Relations Board, and Bernard L. Alpert, all of Washington, D. C., for respondent.

Before SPARKS, MAJOR, and TREANOR, Circuit Judges.

MAJOR, Circuit Judge.

This case is here pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), upon petition by C. G. Conn, Ltd., to review and set aside an order of the Board, (10(c). The Board's answer requests the court to affirm and enforce its order. The Board issued its complaint on March 11, 1936, upon a charge filed by Metal Polishers International Union, Local No. 77 (hereinafter referred to as the Union). The essential allegations of the complaint were denied by petitioner's answer and, upon the issues thus formed, a hearing was had before a trial examiner of the Board at Elkhart, Indiana, continuing from March 10th to the 30th, 1936, inclusive.

On June 6, 1936, the trial examiner filed an intermediate report containing his findings and recommendations, to which exceptions were filed by petitioner, and in connection therewith a brief and request for oral argument. On August 14, 1936, prior to any hearing or argument on such exceptions, and without notice to the petitioner, the Board entered an order granting permission to the Union to withdraw its charge and dismissed the complaint: "* * * without prejudice to the Board's right to reinstate the complaint upon the petition of the aforesaid Metal Polishers International Union, Local 77, for good cause shown, and, with, or without further hearing, to take such further proceedings as it may deem warranted."

On May 8, 1937, the Union filed a petition with the Board, and on December 29, 1937, filed a supplemental petition to reinstate the proceedings. On January 22, 1938, the petitioner filed its objections to the reinstatement of the proceedings and an argument thereon was held before the Board in Washington on January 25, 1938. Thereafter, on May 21, 1938, the Board ordered the charge and proceedings reinstated by the following order:

"Ordered that the petition and supplemental petition of Metal Polishers International Union, Local No. 77, requesting reinstatement of the charge and the proceedings in this case, are hereby granted, and said charge and proceedings are hereby reinstated, and it is further

"Ordered that the respondent and the Union shall have the right to file with the Board in Washington, D. C., within ten (10) days from the date of this Order, briefs or requests for oral argument on the merits, or both."

Petitioner filed its exceptions to this order.

Petitioner contends that, after dismissing the complaint, the Board was without authority to reinstate it and to determine the issues upon the evidence introduced prior to the time of such dismissal.

This seems a sufficient history of the proceedings for the purpose of passing upon the jurisdictional question. The reason assigned for the dismissal of the cause appears to have been due to the uncertainty concerning the applicability of the Act to the instant situation, which was removed by the decision of the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, and companion cases. We do not believe, however, that the reason thus assigned is of any importance to the instant question and there is, therefore, no occasion for us to discuss how or in what manner the decisions of the Supreme Court affected the action of the Board in the respect complained of. The question is, did the Board, after its order of dismissal, have the authority to reinstate the cause and determine the issues upon the testimony theretofore heard? The precise question, so far as we are advised, has not been determined by any court. Petitioner argues that the Board has only such authority as is conferred by Statute or by its rules and regulations promulgated in conformity therewith, and that no such authority being therein found, it could not so act. Attention is called to Section 1¹ of the rules and regulations of the Board as being the only provision which has any bearing upon the matter. On the other hand, respondent calls our attention to Section 36² of the rules and argues that said section authorizes such procedure.

We doubt if either of these sections supplies the authority claimed. Certainly neither does so by express language. This does not mean, however, that the Board was without authority. The rule seems to have been long established that judicial, as well as quasi-judicial tribunals do not lose jurisdiction of a cause by its dismissal with a proviso authorizing its reinstatement. Welch v. Mandeville, 11 U. S. 152, 7 Cranch 152, 3 L.Ed. 299; Zadig v. Aetna Ins. Co., 2 Cir., 42 F.2d 142; United States v. Sixty-Five Cases of Glove Leather, D.C., 254 F. 211; Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 112 N.E. 350.

In the Glove Leather case, the court, on page 214 of 254 F., said: "The docket entry of dismissal in the instant case as fully appears by the order pursuant to which made was not a `final' dismissal or judgment or disposition of the case, nor was it intended to be. On the other hand, it was expressly provided in the order that the action might be revived, and its prosecution proceeded with and continued, on application and showing made."

In the Weisguth case, the Illinois Court, 272 Ill. page 543, 112 N.E. page 351, said: "* * * In case of a voluntary nonsuit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause, unless at the time the nonsuit is taken leave is given the plaintiff to move to set it aside."

Thus, it appears that an order of dismissal, without reservation, is treated as final and the court is without authority to reinstate, especially after the expiration of the term during which the order of dismissal was entered. On the other hand, it appears that where the dismissal is had with the reservation of a right to reinstate, the court has at least the discretionary right to do so at any subsequent time. In the instant matter, the Board expressly reserved its right to reinstate and we see no reason why its authority in this respect should not be as broad as that of a court, under similar circumstances. It is argued, however, by petitioner that the action was improper because of the lapse of considerable time between the hearing before the examiner and the order of reinstatement, and that, in the meantime, conditions had changed. There might be cases, of course, in which such a situation would work to the detriment of the employer unless the hearing was continued and the employer permitted to introduce testimony regarding the changed conditions, material to the issues involved. No request was made here by the petitioner, however, to offer additional testimony as to such changed conditions, and in the absence of such request, we do not think petitioner is in a position properly to complain, nor can we see how its rights have been prejudiced. Therefore, we conclude that the action of the Board in this respect was proper and it is sustained.

For many years, petitioner has been and is engaged in the manufacture of musical instruments at Elkhart, Indiana, and their sale throughout the United States. In October, 1935, it had 700 employees on its payroll, and for the year ending April 30, 1935, its sales amounted to $2,500,000. It had a large number of departments in which its manufacturing operations were conducted, including Departments 33 and 46, referred to as the Polishing Departments. The rough polishing was done in the latter, and after that the instruments were removed to the former, where the finishing process was carried on.

On October 14, 1935, an important date involved in this controversy, there were 35 employees in Department 33, including the inspectors, but excluding the foremen, and it is around this department that the present controversy largely revolves.

Petitioner's business was such as to cause a wide variance in the number of hours which the employees worked. The busiest period of the year was during the months of September, October, November, and the early part of December. During those months, the employees of Department 33 worked on an average of 57½ hours per week, including overtime on four nights of each week. During some portions of the year the hours worked would average not more than 30 hours per week. The overtime work referred to was understood to mean the number of hours each employee worked per week in excess of 48 hours. The situation with reference to the hours of employment in 1935 was substantially the same as during the several years preceding.

Rodney J. Beckwith was Foreman of the two polishing departments; Robert B. Golden was Production Manager; Otis E. Beers, General Manufacturing Manager; Alfred L. Smith, Executive Vice President, and Philip F. Getzen the Company Superintendent.

In addition to jurisdictional allegations, not here in dispute, the complaint alleged, in substance, that petitioner had urged, persuaded, and warned certain of its employees to refrain from becoming or remaining members of the Union, had threatened said employees with discharge if they became or remained members thereof, and had discharged and refused to reinstate Reuben Molebash, Elmer Sherrill, Iral McCaw, Julius Fillinger, Theodore Nimroth and Carl Hudson for joining and assisting the Union and for engaging in concerted activities for the purpose of collective bargaining and other mutual aid or protection, and that by the foregoing acts, petitioner had engaged in, and was...