Donnelly Garment Co. v. National Labor Relations Bd.

• Decision Date: 29 October 1945
• Docket Number: No. 12641.,12641.
• Citation: 151 F.2d 854
• Parties: DONNELLY GARMENT CO. v. NATIONAL LABOR RELATIONS BOARD (DONNELLY GARMENT WORKERS' UNION et al., Interveners).
• Court: U.S. Court of Appeals — Eighth Circuit

151 F.2d 854 (1945)

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

No. 12641.

Circuit Court of Appeals, Eighth Circuit.

October 29, 1945.

Robert J. Ingraham, of Kansas City, Mo. (Burr S. Stottle, of Kansas City, Mo., on the brief), for petitioner.

Frank E. Tyler, of Kansas City, Mo. (Gossett, Ellis, Dietrich & Tyler, of Kansas City, Mo., on the brief), for intervener, Donnelly Garment Workers' Union.

Ruth Weyand, Attorney, National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, General Counsel, National Labor Relations Board, and Malcolm F. Halliday, Associate General Counsel, National Labor Relations Board, both of Washington, D. C., on the brief), for respondent.

Cliff Langsdale, of Kansas City, Mo., for intervener, International Ladies' Garment Workers' Union.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is a petition of the Donnelly Garment Company to review and set aside an order of the National Labor Relations Board, entered June 9, 1943 (50 N.L.R.B. 241), requiring the disestablishment of the Donnelly Garment Workers' Union and the abrogation of its contracts with the petitioner. The Board, in its answer, has requested this Court to enforce the order.

The National Labor Relations Board, on April 27, 1939, upon charges filed by the International Ladies' Garment Workers' Union (hereinafter referred to as "the International"), issued a complaint, subsequently amended, against the Donnelly Garment Company, of Kansas City, Missouri, a manufacturer of women's garments, doing a nationwide business, charging it with having engaged in unfair labor practices within the meaning of Section 8(1), (2) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.

Briefly stated, the charges were that the Company had fostered, dominated and supported the Donnelly Garment Workers' Union, an independent union of the Company's employees (which, for convenience, will be called the "plant union"), and its alleged predecessor, the "Nelly Don Loyalty League"; that the Company had entered into a closed-shop agreement with the plant union for the purpose of assisting it; that the Company, in April, 1937, discriminatorily discharged, and had refused to reinstate, two employees, Sylvia Hull and May Fike, for joining and assisting the International.

In its answer, the Company denied that it had engaged in any unfair labor practices, and asserted the existence, on the part of the International, of a conspiracy to force the Company, by fraud, violence and secondary boycott, to compel its employees, against their will, to join the International, and that the Board, its agents and representatives were furthering this unlawful conspiracy.

The Donnelly Garment Workers' Union (the plant union) was permitted to intervene. It admitted in its answer that the Company and the plant union had entered into a closed-shop agreement, but denied all of the other allegations of the complaint.

The International was also permitted to intervene, in support of the charges against the Company.

Upon the issues made by the pleadings, a hearing was had in 1939 before a Trial Examiner appointed by the Board. He excluded evidence which the Company and the plant union deemed to be relevant and material, including proffered testimony of employees tending to show that the plant union was not dominated and supported by the Company, and evidence that the International was engaged in an unlawful conspiracy to force the Company to compel its employees to join the International against their will. The Trial Examiner, in his intermediate report, found the facts in favor of the Board, except as to the alleged discriminatory discharge of May Fike and as to the alleged discriminatory discharge and refusal to reinstate Sylvia Hull. 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 membership and activities, but was not discriminatorily discharged.

The Board's decision of March 6, 1940, sustained the rulings and adopted the recommendations of the Trial Examiner, except that the Board determined that May Fike had been discriminatorily discharged and was entitled to be compensated for her loss of wages. The Board ordered the Company to cease and desist from engaging in the unfair labor practices found to exist; to disestablish the plant union as the representative of its employees for purposes of collective bargaining; to cease and desist from giving effect to its contracts with the plant union, except "the substantive features * * * relating to rates of pay, wages, hours of employment, or other conditions of employment"; to reimburse the employees for amounts deducted from their wages as dues for the plant union; to reinstate May Fike and to reimburse her for any loss in wages.

The Company filed in this Court its petition for a review of the order of the Board. The Board answered the petition and asked that its order be enforced. The validity of the order was challenged by the Company upon two grounds: (1) lack of due process, and (2) lack of an adequate evidentiary basis for the order. This Court thought that the Board, by refusing to receive and to consider the proffered evidence of the employees of the Company indicating that their freedom of choice of a bargaining representative had been in no way interfered with and that the plant union was uninfluenced, undominated and unsupported by the Company, had clearly denied the Company and the plant union due process of law. See Donnelly Garment Co. v. National Labor Relations Board, 8 Cir., 123 F.2d 215. We expressed the opinion that bias and prejudice on the part of the Trial Examiner and the Board was not shown by the record; that the Trial Examiner had not erred in confining the issues to those tendered by the complaint; and that the Board was not required to try the International for an alleged conspiracy, nor to try the charge that the Board had conspired or colluded with the International. We concluded that there was a lack of due process in the proceedings before the Board in that competent and relevant evidence offered by the Company had been excluded. We said, in that connection (page 224 of 123 F.2d): "The truth is that a controversy tried before a court or before an administrative agency is not ripe for decision until all competent and material evidence proffered by the parties has been received and considered."

We also said (page 225 of 123 F.2d): "Our conclusion is that the petition of the Board for enforcement of the order under review must be denied. We think that the least that the Board can do, in order to cure the defects in its procedure caused by the failure of the Trial Examiner to receive admissible evidence, is to vacate the order and the findings and conclusions upon which it is based; to accord to the petitioners the Company and the plant union an opportunity to introduce all of the competent and material evidence which was rejected by the Trial Examiner; and to receive and consider such evidence together with all other competent and material evidence in the record before making new findings and a new order."

The final paragraph of our opinion reads as follows (page 225 of 123 F.2d): "The petition of the Board for the enforcement of its order is denied, and the case is remanded to the Board for further proceedings."

The mandate of this Court provided that the case be "remanded to said Labor Board for further proceedings not inconsistent with the opinion of this Court." It is, we think, apparent that what this Court, in effect, ruled was that the Company and the plant union were entitled to a new trial upon the evidence already taken and such competent and material evidence as might be proffered upon a further hearing. We were advising the Board that, in our opinion, it had not complied with the minimal constitutional requirements of due process. Under the order of this Court, the Board was at liberty to do whatever was necessary in order to give to the parties the full and fair hearing to which they were constitutionally entitled. If the Board thought that this Court was wrong in its conclusion that the proceedings which preceded the Board's order were lacking in due process, the Board was, of course, at liberty to apply to the Supreme Court for certiorari. The Board entered an order setting aside its decision and order of March 6, 1940, and reopened the record for a further hearing "for the purpose of taking additional evidence in accordance with said opinion and decree" of this Court.

The Board designated as the Trial Examiner to conduct the further hearing the same Trial Examiner who had presided at the original hearing and who, during that hearing, had expressed the opinion that evidence of employees of the Company which this Court ruled to be competent and material was immaterial and valueless. The Company presented to the Board a request that it designate another Trial Examiner to conduct the hearing. The basis for the request was that the examiner designated was biased and prejudiced. Attached to the request was an affidavit of prejudice signed by the Secretary of the Company, stating that he believed that the examiner had prejudged the evidence which this Court had held must be received and considered. The basis for the affiant's belief was stated in detail. It consisted of rulings and remarks of the examiner, made during the original hearing, relative to the admissibility and worth of evidence proffered by the Company and rejected. The intervener plant union concurred in the request for the designation of another Trial Examiner. The Board refused the request. It stated that this Court had decided "that the Trial Examiner and the Board had been free of any bias or prejudice."¹

The further hearing...