National Labor R. Board v. American Potash & C. Corp.

Decision Date10 September 1938
Docket NumberNo. 8681.,8681.
Citation98 F.2d 488
CourtU.S. Court of Appeals — Ninth Circuit


Charles Fahy, Gen. Counsel, National Labor Relations Board, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Lawrence Hunt, Bertram Edises, Thomas I. Emerson, Philip Levy, and Mortimer B. Wolf, Attys. National Labor Relations Board, all of Washington, D. C., for petitioner.

Gibson, Dunn & Crutcher, J. Stuart Neary, Henry B. Ely, and David P. Evans, all of Los Angeles, Cal., for respondent.

Robert E. Ford, of Los Angeles, Cal., for intervener.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

The National Labor Relations Board petitions this court for an order enforcing its order requiring the respondent American Potash and Chemical Corporation to cease and desist from certain unfair labor practices prohibited by the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. § 151 et seq.) and to take certain affirmative action designed to effectuate the policies of the Act.

The respondent is a Delaware corporation engaged in Trona, California, in the manufacture of potash, boric acid, borax, soda ash and sodium sulphate. It has approximately 900 employees. Over 92 percent of respondent's products are shipped in interstate and foreign commerce.

Pursuant to charges filed with the Board by Borax and Potash Workers' Union No. 20181 (hereinafter referred to as the Union) an affiliate of the American Federation of Labor, the Board, through its Regional Director, at Los Angeles, brought complaints against the respondent alleging that respondent had interfered with, coerced, or restrained employees in their exercise of the right to bargain collectively through representatives of their own choosing, contrary to section 8(1) of the Act, 29 U.S.C.A. § 158(1); that it had discouraged membership in a labor organization by discharging and refusing to rehire 17 employees, and by demoting 1, in violation of section 8(3), 29 U.S.C.A. § 158(3); and that it had dominated and interfered with and contributed support to a labor organization of its employees, known as the Allied Chemical Workers' Association, in violation of section 8(2), 29 U.S.C.A. § 158(2).

After hearings before a Trial Examiner in Los Angeles, the case was removed to the Board proper, which made findings of fact to the effect that:

(1) The respondent ships more than 90 percent of its products in interstate commerce, that it is one of the three largest potash producers in the United States and one of the two largest borax producers in the world.

(2) That on one occasion respondent discharged 4 employees by reason of their union activity in the Borax and Potash Workers' local; on a second occasion it discharged 3 and demoted 1 for the same cause; on a third, it discharged 7 employees, members of the negotiating committee of the Allied Chemical Workers' Association, for the reason that these 7 had protested the discharge of the A. F. of L. men; and on a fourth occasion it discharged 3 more members of the Union for union activity.

(3) That the respondent had dominated, interfered with and given support to the Allied Chemical Workers' Association, an organization of its employees.

(4) That all these actions on the part of respondent tended to lead to a labor dispute interfering with and burdening interstate commerce.

From these findings the Board concluded that respondent was guilty of unfair labor practices within section 8(1), (2) and (3) of the Act, 29 U.S.C.A. § 158(1-3). It ordered the respondent to cease and desist:

1. From interfering with, restraining or coercing its employees in the exercise of their rights to self organization for the purpose of collective bargaining.

2. From discouraging membership in Borax and Potash Workers' local by discharging, refusing to reinstate, or demoting any of its employees.

3. From dominating or interfering with the Allied Chemical Workers' Association and from contributing support thereto.

The following affirmative action was ordered:

1. Offer full reinstatement to the 17 employees who were discharged and to the 1 who was demoted by reason of union activity.

2. Make whole the said employees for any losses of pay between the time of discharge or demotion to the date of offer of reinstatement, less what each might have earned in the meantime.

3. Withdraw all recognition from the Allied Chemical Workers' Association as representative of any of its employees for collective bargaining purposes and "disestablish the Allied Chemical Workers' Association as such representative".

4. Post conspicuous notices indicating compliance with the foregoing orders.

The case is before us on the Board's petition for enforcement, the respondent resisting such petition on the ground that the evidence fails to support the findings of a burdening or obstruction of interstate commerce, a domination of the alleged company union, the Allied Chemical Workers' Association, and (in part) the alleged discriminatory discharges. By leave of court the Allied Chemical Workers' Association has filed a brief here challenging the Board's finding of company domination of the intervenor and the order directing non-recognition and disestablishment. Pending before us also is a motion by the respondent to adduce additional evidence and a preliminary issue (on which the parties have submitted supplemental briefs) as to whether respondent was denied due process of law in the Board proceedings. We will consider these procedural matters first.

Respondent's Claim of Denial of Due Process.

Respondent claims that it was denied the substance of notice and hearing as required by the guarantee of due process laid down in the Fifth Amendment U.S.C.A. Const. Amend. 5. Our attention is called to the recent case of Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. ___, April 25, 1938, rehearing denied May 31, 1938, 58 S.Ct. 999, 82 L.Ed. ___, wherein was reiterated the principle that while mere form is not important, a litigant in any sort of a tribunal or administrative body, must be fairly given an opportunity to present his case, — by reasonable notice of what charges he will have to meet and by opportunity to present both evidence and argument in meeting them.

There is no record of objection made on this ground to the Board and hence we are not required to review the contention. Sec. 10e. Nevertheless, because we believe that had the matter been in our discretion we would have provided a longer notice of the hearings, we give it consideration.

The claim of lack of notice is grounded upon the theory that respondent was afforded but 6 days to present evidence bearing upon the discharge of 17 men, the gathering of which evidence required repeated journeys from Los Angeles, the seat of the hearing, to Trona, almost 200 miles away. And, respondent asserts, its requests for continuances were arbitrarily denied.

The facts are these. Three separate complaints were filed by the Board against respondent in this case. Each charged violation of the Act by discriminatory discharges and by domination of the Allied Chemical Workers' Association. The only substantial difference among the three was in the names of employees discharged and the particular circumstances of the discharge. The first complaint was filed April 24, 1936, and alleged the discriminatory discharge of 4 employees because of membership in the Union and respondent's unlawful domination of the Allied Chemical Workers' Association. Respondent answered on May 1, 1936, and a hearing was held before the Trial Examiner and lasted several weeks concluding on June 3, 1936. Respondent makes no claim that it lacked notice and opportunity to present its defense on the hearing on this first complaint.

On July 6, 1936, the Trial Examiner found that respondent had engaged in the unfair practices charged, but that it was not subject to the Act, and recommended that the complaint be dismissed.

On October 2, 1936, a supplemental complaint was filed repeating the allegations of respondent's domination of the Allied Chemical Workers' Association, and alleging discriminatory discharge of 4 Union members, discriminatory demotion of 1 Union man, and the discharge of 7 Allied Chemical Workers' Association men for protesting the discharge of the Union members. Notice of hearing on October 15 was given on October 8th. Thus respondent had 8 days to prepare its defense to charges of unlawful discharge of 12 men. The 12 individual cases were closely interrelated and the charges were substantially similar to those preferred in the earlier complaint.

On October 9, a third complaint was filed, alleging the discriminatory discharge of 5 more Union members, the charge being incorporated in the previous one noticed for hearing on October 15. This allowed respondent 6 days to prepare for meeting charges as to 5 men.

Two days before the October 15 hearing, the firm of counsel selected by the respondent wired the Board in Washington asking a 7-day continuance, stating that they did not have sufficient time to prepare the cases and that they were engaged in the trial of another case on the morning of the hearing. The request was denied.

On October 15, the morning of the hearing, respondent's attorney asked a continuance of 24 hours on the ground that he had to appear in the Federal District Court on another matter. The motion for continuance was denied by the Trial Examiner with the result that for one hour, more or less, the Board's case went on in the absence of any attorney for the respondent.

Regarding the other engagement, at the opening of the hearing, of the member of the law firm selected by the Company there is no showing that he had any special knowledge of the case...

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