CUPPLES COMPANY MANUF'RS v. National Labor R. Board

Decision Date12 June 1939
Docket NumberNo. 426,426
Citation103 F.2d 953
CourtU.S. Court of Appeals — Eighth Circuit

Luther Ely Smith and Victor B. Harris, both of St. Louis, Mo. (Luther Ely Smith, Jr., of St. Louis, Mo., on the brief), for petitioner.

Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Mr. Charles Fahy, Gen. Counsel, of Washington, D. C., on the brief), for respondent.

Before GARDNER and WOODROUGH, Circuit Judges, and BELL, District Judge.

GARDNER, Circuit Judge.

This case is pending before the court upon petitioner's request to review and set aside and respondent's request for enforcement of an order of respondent issued against petitioner on December 5, 1938, pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c). A certified transcript of a record of the proceedings before the Board was filed in this court on February 20, 1939, and the case is set for argument on the merits on May 30, 1939. On May 1, 1939, petitioner presented its application for a commission to take the depositions of the members of the National Labor Relations Board and other persons, and for an order requiring the members of the Board to answer certain interrogatories. It now appears that at the close of the oral argument, counsel for petitioner were granted leave to file a reply brief within ten days. Through inadvertence, this motion was taken up by the court on May 9th and an order entered denying the petition. That order we now set aside as improvidently entered.

Three proceedings were commenced against petitioner before the National Labor Relations Board. One charged unfair labor practices under Section 10 of the National Labor Relations Act, and the other two were initiated pursuant to Section 9 (c) of the Act, 29 U.S.C.A. § 159(c), by the issuance of an order authorizing the Regional Director to conduct an investigation and to provide for an appropriate hearing on petitions filed by two labor organizations, each of which alleged that a question affecting commerce had arisen concerning the representation of the company's employees. Each organization asked to be certified as collective bargaining representative of employees in an appropriate unit. The cases were consolidated for hearing and were heard by an examiner. At the commencement of the hearing before the trial examiner, the attorney for the Board made a brief preliminary statement relating to the three cases. Petitioner was represented by counsel. The trial examiner filed an intermediate report on February 7, 1938, which included his findings of fact and conclusions of law, together with recommendations in the case of unfair labor practices. Petitioner was served with a copy of this report. The report was to the effect that the petitioner had been guilty of unfair labor practices, but dismissed the complaint so far as a charge of refusal to bargain collectively was concerned. The examiner made no report in the two cases involving representation. Petitioner was granted leave to file a brief in the three cases. It filed exceptions to the intermediate report of the examiner, as did one of the labor organizations interested in the representation cases. Petitioner made oral argument before the Board on March 17, 1938, and on October 26, 1938, filed a motion requesting clarification of the issues in the representation cases. This motion was denied.

On December 5, 1938, the Board issued its decision and order and direction of election. The decision recites that the Board had considered the exceptions and the briefs, and that its findings of fact, conclusions of law, order and direction of election were made by the Board upon the entire record. The Board found that petitioner had engaged in unfair labor practices within the meaning of Section 8(1), (2) and (3) of the Act, 29 U.S.C.A. § 158(1-3), but that it had not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. It ordered petitioner to cease and desist from its unfair labor practices and to offer reinstatement with back pay to eleven named employees, to withdraw all recognition from the Mutual Relations Association as collective bargaining representative of any of the employees and to post notices. It also ordered that the complaint be dismissed in so far as it alleged that petitioner had violated Section 8(5) of the Act. It dismissed one of the two representation cases, and with respect to the other directed that as a part of the investigation to ascertain representatives for the purpose of collective bargaining, an election by secret ballot should be conducted at such time as the Board might thereafter specify, among the employees in a unit found by the Board to be appropriate for purposes of collective bargaining.

On December 23, 1938, petitioner filed in this court its petition for review and to set aside the Board's order. The Board answered this petition and prayed for enforcement of the order.

The questions presented at this time are: (1) Has this court the power to issue the commission, or to order the interrogatories to be answered, and if so, (2) should such power, in the light of the showing presented, be exercised?

1. The scope of the inquiry at this time must be limited to the case presented by the order requiring petitioner to cease and desist from unfair labor practices because the investigation under Section 9(c) of the Act, to ascertain the proper representative of the employees, has not reached the stage of a final order directed against petitioner, and until it has reached that stage petitioner is not entitled to a review or hearing in this court. American Federation of Labor v. N. L. R. B. No. 7257, App. D.C., 103 F.2d 933, opinion filed February 27, 1939; Ames Baldwin Wyoming Co. v. N. L. R. B., 4 Cir., 73 F.2d 489; United Employees' Ass'n v. N. L. R. B., 3 Cir., 96 F.2d 875.

2. Section 644, Title 28 U.S.C.A., provides that, "In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage."

The question whether the Board proceeded lawfully to arrive at its final decision is not a question on which its findings are conclusive on this court, but we think as a court of equity in review of the proceedings of the Board, this court has power and the duty to pursue inquiry as to the method of decision. N. L. R. B. v. Cherry Cotton Mills, 5 Cir., 98 F.2d 444; N. L. R. B. v. Biles Coleman Co., 9 Cir., 98 F. 2d 16. In fact, it might be necessary that it so proceed to prevent a failure of justice. "The power `to prevent any person from engaging in any unfair practice affecting commerce' has been vested by Congress in the Board and the Circuit Court of Appeals, and Congress has declared: `This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.'" Myers v. Bethlehem Corp., 303 U. S. 41, 58 S.Ct. 459, 462, 82 L.Ed. 638. Upon review by the Circuit Court of Appeals, all questions of the jurisdiction of the Board and regularity of its proceedings, and all questions of constitutional right or statutory authority are open to examination. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L. R. 1352.

It is argued by the Board that the Act provides a ready, if not exclusive means of adducing additional evidence by ordering additional evidence to be taken before the Board. Sections 10(e) and 10(f). But this manifestly refers to evidence going to the merits of the charge and not to the question of the regularity or fairness of the hearing as conducted by the Board. The statute presupposes a full compliance by the Board with the fundamental requisites of a fair hearing. A party to an administrative proceeding has the right to prove facts showing that the procedure followed renders the order of the administrative agency void. Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 59 S.Ct. 206, 217, 83 L.Ed. ___.

On this motion, we are not called upon to inquire as to what evidence would or would not be admissible. Our inquiry at this time is limited to the method pursued and to whether a fair hearing has been accorded. The findings of the Board, if supported by substantial evidence, are conclusive. Section 10(f). This has been construed to mean evidence that is more than a scintilla, but "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Edison Company v. Labor Board, supra. This court has been reluctant to set aside the findings of the Board on a disputed question of fact. Cudahy Packing Co. v. N. L. R. B., 8 Cir., 102 F.2d 745, March 27, 1939. But, as said by the Supreme Court in Morgan v. United States, supra, the weight ascribed by law to the findings "rests upon the assumption that the officer who makes the findings...

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