National Labor Rel. Bd. v. Houston & North Tex. MFL, 13457.

• Decision Date: 12 January 1952
• Docket Number: No. 13457.,13457.
• Citation: 193 F.2d 394
• Parties: NATIONAL LABOR RELATIONS BOARD v. HOUSTON & NORTH TEXAS MOTOR FREIGHT LINES, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

193 F.2d 394 (1951)

NATIONAL LABOR RELATIONS BOARD v. HOUSTON & NORTH TEXAS MOTOR FREIGHT LINES, Inc.

No. 13457.

United States Court of Appeals Fifth Circuit.

December 28, 1951.

Rehearing Denied January 12, 1952.

Joseph A. Jenkins, Atty. NLRB, Fort Worth, Tex., A. Norman Somers, Asst. Gen. Cnsl. NLRB, David P. Findling, Assoc. Gen. Cnsl. NLRB, Washington, D. C., for petitioner.

Sam R. Sayers, Fort Worth, Tex., Carl L. Phinney, Dallas, Tex., for respondent.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

JOSEPH C. HUTCHESON, Chief Judge.

Upon findings¹ that, in violation of Secs. 8(a) (1, 3, 5) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1, 3, 5), respondent had refused to bargain collectively with Local Union No. 745, International Board of Teamsters, A. F. of L., and had discriminatorily discharged certain named employees, and otherwise discouraged membership in the union, the Board ordered it: (1) to cease and desist from these practices; and (2)(a) to bargain collectively with the union, and (b) to offer reinstatement to, and make whole, the six named employees.

Respondent failing to comply therewith, the Board is here, by petition, suing for the enforcement of the order and, by brief and oral argument, insisting that the record fully supports it.

The respondent on its part, while insisting that the findings are wholly erroneous and that the order should not be enforced, devotes the major portion of its brief and argument not to supporting this denial but to other matters preliminary to a consideration of the merits.

These consist in attacks upon the conduct of the proceedings by and before the board² and its contention that, because the Board arbitrarily dismissed its petition and charge in representation cause No. 16-RM-8, the record in the case brought to this court is incomplete and, because it is, this court is without jurisdiction to proceed further herein.

For the reasons hereafter briefly stated, we reject these contentions as without foundation in law or in fact.

Respondent cites no case, we know of none, supporting its contention that the action of the Board in dismissing the representation proceeding was unauthorized or that the failure to conduct that proceeding to a finality deprived this court of jurisdiction to hear this petition for enforcement of the Board's order entered in cause No. 16-CA-83.

On the contrary, we think it plain, under the decisions, that the action of the Board was well within its discretion.³ When the Board dismissed respondent's representation proceeding, it made no certification of any facts and obviously the order in the instant case is in no way based upon any facts certified in any section 9(c) proceeding. There is, therefore, nothing concerning the representation proceeding properly before this court.⁴

As to the second point, it is quite plain that, whatever fault, if any, there was, in the conduct of the counsel for the union, this was a mere matter of Board procedure which did not go to the substance of the hearing or which presents any matter for consideration by us.

As to the third point, the disqualification for unfairness of the examiner, this complaint was made before the Board and upon precise consideration was rejected by it.

We agree with the Board that the record does not support respondent's claim of bias and prejudice in the examiner sufficient to affect the hearing. This court has put itself fully upon record upon the proposition that where the proceedings are conducted by the examiner with such bias and unfairness as to amount to an unfair trial, findings and an order based upon such hearing may not stand. N.L.R.B. v. Phelps, 5 Cir., 136 F.2d 562, 563. There, citing many cases, we said: "Nor will the fact that an examination of the record shows that there was evidence which would support the judgment, at all save a trial from the charge of unfairness, for when the fault of bias and prejudice in a judge first rears its ugly head, its effect remains throughout the whole proceeding. Once partiality appears, and particularly when, though challenged, it is unrelieved against, it taints and vitiates all of the proceedings, and no judgment based upon them may stand." Cf. N.L.R.B. v. Western Cartridge Co., 2 Cir., 138 F.2d 551.

It has also put itself up on record as holding that the mere fact that an examiner uniformly credited the witnesses of the Board and discredited those of respondent is not sufficient evidence of such prejudice, nor is it a sufficient basis for the claim that the trial was unfair. N.L.R.B. v. Robbins Tire & Rubber Co., 5 Cir., 161 F.2d 798, at page 800.

Compare what is said in National Labor Relations Board v. Pittsburgh S. S. Co., 337 U.S. 656, 658, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602, reversing the opinion of the Circuit Court of Appeals, 6 Cir., 167 F.2d 126, which had held that "unvarying repudiation of every witness for the petitioner because of falsity, evasion or faint recollection, along with the consistent exaltation of every union witness as truthful, forthright and accurate, destroys completely any confidence that might otherwise be placed in the findings of the trial examiner and stamps them as arbitrary." There the Supreme Court, rejecting "the court's conclusion that an objective finder of fact could not resolve all factual conflicts arising in a legal proceeding in favor of one litigant", went on to say:

"* * * total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact. The gist of the matter has been put well by the Court of Appeals for the Fifth Circuit, speaking through Judge Hutcheson, in granting enforcement of an N.L.R.B. order in N.L.R.B. v. Robbins Tire & Rubber Co., 161 F.2d 798:

"`The fact alone * * * of which Respondent...