Continental Box Co. v. National Labor Relations Bd.

• Decision Date: 02 August 1940
• Docket Number: No. 9432.,9432.
• Citation: 113 F.2d 93
• Parties: CONTINENTAL BOX CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

113 F.2d 93 (1940)

CONTINENTAL BOX CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.

No. 9432.

Circuit Court of Appeals, Fifth Circuit.

June 27, 1940.

Rehearing Denied August 2, 1940.

M. S. McCorquodale, of Houston, Tex., for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Leonard Appel, Atty., National Labor Relations Board, all of Washington, D. C., for respondent.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Both petitioner and respondent are suitors here in respect of respondent labor board's order directed against petitioner. Petitioner sues to set aside, respondent to enforce that order. On a complaint sponsoring charges filed by the Federal Labor Union, No. 21328, affiliated with the American Federation of Labor, the board found the following unfair labor practices: (1) That petitioner had discharged and thereafter refused to reinstate Coombs, Huermann, Cato and Sampson, because of union activity; (2) that it had dominated and interfered with the formation and administration, and had contributed to the support of Employees Aid Association, an unaffiliated local union of Continental's employees; and (3) that by making a "statement of its policy"¹ the night before a consent election, upon whether the "Union" should be the exclusive representative of employees eligible to membership in it, the respondent interfered with, restrained or coerced its employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157. Upon these findings the board ordered respondent; (1) to cease and desist from, (a) discouraging membership in the Federal Labor Union, No. 21328, or any other labor organization of its employees, (b) dominating or interfering with the Employees Aid Association or any other labor organization, (c) in any other manner interfering with, restraining or coercing its employees in the exercise of their rights to self-organization; (2) to take affirmative action by, (a) offering reinstatement to Coombs, Huermann, Cato and Sampson, and make them whole for loss of pay, (b) withdrawing recognition from the Employees Aid Association and disestablishing it as representative of any of its employees, (c) posting notices that it will cease and desist and take affirmative action as ordered, including in the notice that respondent's employees are free to become or remain members of Federal Labor Union, No. 21328.

The respondent insists that these findings are supported by substantial evidence and that its orders are appropriate to effectuate the policies of the Act, 29 U.S.C.A. § 151 et seq. Petitioner, urging upon us that petitioner's business is not within the flow of Interstate Commerce and there is here, no labor dispute to which the invoked act applies, and of which the board has jurisdiction, insists that, if there is jurisdiction; accusation has here been made to serve as proof; suspicion, surmise and conjecture as evidence; and that in the atmosphere of a prejudiced and unfair hearing, trifles light as air, have to the jealous eye of the board, appeared as confirmations strong as proof from holy writ.

We reject without discussion, because completely foreclosed by the decisions, petitioner's attack upon the Board's jurisdiction to hear and decide, to proceed to its attack upon that hearing and decision. In Magnolia Petroleum Company v. National Labor Relations Board, 5 Cir., 112 F.2d 545, and Humble Oil & Refining Company v. National Labor Relations Board, 5 Cir., 113 F.2d 85, we have had recent occasion to carefully examine and define the place and function of the board and of the courts in the administration of the Act invoked here, and to carefully give application to the principles we there laid down. It will suffice here, without restating them, to proceed to their application. And first, of petitioner's general charges that the proceedings were conducted and decided in such an atmosphere of bias and prejudice, as to render the hearing unfair and the result a denial of due process. Of course, if this accusation is sustained, if the proceedings were characterized by a want of judicial fairness as petitioner claims they were, the findings and order resulting from that hearing must fall. For, "It is a fundamental principle that no judicial or quasi judicial hearing is valid, where the maxim `audi alteram partem' is ignored, and it is therefore of the essence of a valid judgment that the body which pronounces it shall be unbiased, shall have no interest whatever in the outcome of the issue, and shall not have in any manner prejudged or predetermined it."² But something more must be pointed to than an unfavorable or even an unsupported finding and result to sustain such a charge.

It must appear, if the assault is general, that the proceedings were characterized by fell expedition or determined purpose to reach a predetermined end,³ or were attended with suppressive and exclusionary rulings and actions, designed to prevent and preventing a fair hearing.

An examination of this record discloses not only an entire absence of such purpose and action on the part of the examiner, but a hearing conducted in an atmosphere of exemplary fairness, during which petitioner was afforded every opportunity to fully present its side, followed by "reasoned conclusions," announced by the examiner in a spirit of eminent fairness and impartiality.

We therefore reject, as without support in the record, petitioner's attacks upon the hearing as unfair and turn to a consideration of whether, differing as they do in several particulars from the findings, conclusions and recommendations of the trial examiner, the findings and order of the board are supported by substantial evidence.

And first, as to the claimed discriminatory discharges. Of the five, Coombs, Huermann, Ryan, Cato and Sampson, whose discharges and the failure to reinstate them were charged in the complaint as discriminatory because of union activities, the trial examiner found that the complaint was completely made out as to Coombs and Huermann but not as to Ryan and Cato, and that as to Sampson, it was not made out as to his discharge, but was as to the failure to reinstate him. The board found...