Donnelly Garment Co. v. National Labor Relations Bd.

• Decision Date: 06 January 1942
• Docket Number: No. 475.,475.
• Citation: 123 F.2d 215
• Parties: DONNELLY GARMENT CO. v. NATIONAL LABOR RELATIONS BOARD (DONNELLY GARMENT WORKERS' UNION et al., Interveners).
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 215 (1941)

DONNELLY GARMENT CO. v. NATIONAL LABOR RELATIONS BOARD (DONNELLY GARMENT WORKERS' UNION et al., Interveners).

No. 475.

Circuit Court of Appeals, Eighth Circuit.

November 6, 1941.

Rehearing Denied January 6, 1942.

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James A. Reed and Robert J. Ingraham, both of Kansas City, Mo. (Burr S. Stottle and James J. Shepard, Jr., both of Kansas City, Mo., on the brief), for petitioner.

Frank E. Tyler, of Kansas City, Mo. (Lucian Lane, of Kansas City, Mo., on the brief), for intervener-petitioner.

Ruth Weyand, of Washington, D. C., Atty., National Labor Relations Board (Robert B. Watts, General Counsel, National Labor Relations Board, Laurence A. Knapp, Associate General Counsel, National Labor Relations Board, Ernest A. Gross, Asst. General Counsel, National Labor Relations Board, and Mortimer B. Wolf and Joseph B. Robison, all of Washington, D. C., Attys., National Labor Relations Board, on the brief), for respondent.

Clif Langsdale, of Kansas City, Mo., for intervener-respondent.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

The order of the National Labor Relations Board of March 6, 1940, which the petitioners seek to have set aside and the Board asks to have enforced, requires that the Donnelly Garment Company, of Kansas City, Missouri (hereinafter called the Company), a large manufacturer of women's dresses, engaged in interstate commerce, cease and desist from: (a) dominating or interfering with the administration of Donnelly Garment Workers' Union (an independent labor organization of the Company's employees) or with the formation and administration of any other labor organization of its employees or giving support thereto; (b) giving effect to its contracts with Donnelly Garment Workers' Union; (c) discouraging membership in International Ladies' Garment Workers' Union (an affiliated labor organization, hereinafter referred to as the International) or discouraging or encouraging membership in any labor organization of the Company's employees; (d) dominating, controlling and using the Donnelly Loyalty League (another organization of the Company's employees) to interfere with, restrain and coerce the employees of the Company in the exercise of the rights guaranteed them by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.; (e) interfering with, restraining or coercing the employees in the exercise of their rights of self-organization and collective bargaining. The order further requires the Company to take the following affirmative action: (a) withdraw all recognition from, and disestablish, the Donnelly Garment Workers' Union as the representative of any of the Company's employees; (b) reimburse all employees who are members of this union for dues deducted from their wages and paid by the Company to the union; (c) offer to May Fike (a former employee found by the Board to have been discriminatorily discharged) reinstatement; (d) compensate May Fike for her loss of wages; (e) post notices of compliance.

The proceedings before the Board which terminated in the order complained of by the petitioners were initiated by the International by the filing of charges with the Board against the Company. Upon these charges the Board in April, 1939, filed a complaint and an amended complaint alleging that the Company had, on or about April 27, 1937, and thereafter, dominated, interfered with, and supported the Donnelly Garment Workers' Union, (a) by permitting the Company's supervisory and other employees to promote that organization on the time and premises and at the expense of the Company; (b) by forming, on or about February 12, 1935, through its officers and agents, the Donnelly Loyalty League and using it until on or about April 27, 1937, for the purpose of impeding and preventing the organization of the employees of the Company by the International; and (c) by entering into a closed shop contract with the Donnelly Garment Workers' Union for the purpose of assisting that union and of depriving the Company's employees of their rights with respect to self-organization and collective bargaining. The complaint alleged that the Company had discharged Sylvia Hull and May Fike in April, 1937, because they had joined and assisted the International. The complaint also alleged that the Company had by various acts coerced and restrained its employees from becoming or remaining members of the International; that the Company had encouraged and compelled membership in the Donnelly Garment Workers' Union; and that, by entering into a closed shop contract with that union, the Company had violated Section 8(1) and (3) of the National Labor Relations Act, and that the contract was void.

The Company, in its answer, (a) challenged the jurisdiction of the Board; (b) alleged that the International was engaged in an unlawful conspiracy to compel the Company to force its employees, against their will and in violation of the National Labor Relations Act, to join the International, and that, in furtherance of the conspiracy, the Board and its representatives were aiding and assisting the International and were prejudiced against the Company and were partisans of the International; (c) petitioned for an investigation and certification of representatives of its employees for purposes of collective bargaining; (d) denied that the Company had committed any unfair labor practice, and alleged that the International and its representatives were engaged in the unlawful conspiracy referred to.

The Donnelly Garment Workers' Union intervened, asserting its freedom from employer influence, domination and support. It asked that the Board hold an election to demonstrate the choice of the employees of the Company of a representative for purposes of collective bargaining.

A hearing was had before a Trial Examiner appointed by the Board. The Trial Examiner confined the issues to the charges that the Company had dominated, interfered with and supported the formation and administration of the Donnelly Garment Workers' Union, that the Company had discriminatorily discharged two employees, and that it had interfered with the rights of its employees to organize and to choose representatives for collective bargaining. The Examiner, in his intermediate report, found that the Company had engaged in unfair labor practices under Section 8(1), (2) and (3) and Section 2(6) and (7) of the Act. He found that May Fike had not been discriminatorily discharged; and found that Sylvia Hull had been excluded from the plant of the Company because of union activities, but was not discriminatorily discharged and was not entitled to back pay. He recommended that the Company be ordered to cease and desist from the unfair labor practices which he found that it had been engaged in, and that it be required to withdraw all recognition from, and to disestablish, the Donnelly Garment Workers' Union, and to treat as void its agreements with that union. After hearing exceptions to the report of the Examiner, the Board approved his rulings with respect to the issues and the evidence and reached the same conclusions which he had reached, except that it determined that May Fike had been discriminatorily discharged and was entitled to be compensated for her loss of wages.

The petitioners challenge the validity of the Board's order on two grounds: (1) lack of due process; and (2) lack of a sufficient evidentiary basis for the Board's findings, conclusions and order.

With respect to due process, the petitioners first contend that they were not accorded a fair hearing before an impartial tribunal because the Trial Examiner, the Board, and its representatives were at all times prejudiced and biased against them and were assisting and colluding with the International to force the employees of the Company to join the International. The petitioners argue that this alleged bias and prejudice of the Board and its representatives sufficiently appears from an examination of the proceedings before the Examiner and the Board and from the comments and rulings of the Examiner and from the rulings of the Board, and that its order is therefore invalid.

We think that it cannot be said that it appears from the record of the proceedings before the Examiner and before the Board that there was a denial of due process because of bias and prejudice or collusion. If, as petitioners contend, the Trial Examiner and the Board ruled erroneously with respect to the issues to be tried or in the exclusion of evidence and drew unwarranted inferences from the evidence adduced, that would not justify a conclusion that either the Examiner or the Board was prejudiced or deliberately unfair. That the Examiner made comments which might better have been omitted, with respect to the attitude of the petitioners' witnesses or the character of their testimony, is not enough to show a denial of due process. Compare Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 106 F.2d 100, 113; Goldstein v. United States, 8 Cir., 63 F.2d 609, 612-614.

The petitioners next contend that this Court may and should reconsider and grant their applications for leave to adduce additional evidence to show a denial of due process because of bias and prejudice on the part of the Board and its subordinates.

After the petitioners had filed in this Court their petitions for a review of the Board's order, and before the final submission of such petitions, they filed applications for leave to adduce, either before the Board or before this Court, additional evidence to show that they had been denied a fair and full hearing before an impartial tribunal, that the members and subordinates of the Board were improperly influenced by officers and representatives of the International, that the decision and order of the Board did not represent its judgment based upon the evidence, and that its members and subordinates were assisting the International in...