National Labor Rel. Bd. v. Fulton Bag & Cotton Mills
| Decision Date | 15 March 1950 |
| Docket Number | No. 3932.,3932. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. FULTON BAG & COTTON MILLS. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward Friedman, Washington, D. C. (David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Mozart G. Ratner and George H. Plaut, Attorneys, National Labor Relations Board, Washington, D. C., were with him on the brief) for petitioner.
Kenneth W. Robinson Denver, Colo. (Robert D. Charlton and Robert Swanson Denver, Colo., were with him on the brief), for respondent.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
The National Labor Relations Board found that Fulton Bag & Cotton Mills laid off an employee named Felix Trujillo and refused to reinstate him prior to a certain date because of his membership and activities in a labor union and because of his participation in a proceeding pending before the Board involving Ellis Canning Company; and the Board concluded that the acts of the company constituted unfair labor practices in violation of Section 8(1) (3) and (4) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., Title 1, Section 101, of the Labor Management Relations Act, 61 Stat. 136, 29 U.S.C.A. § 151 et seq. The Board ordered the company to cease and desist from its unfair labor practices, ordered it to make Trujillo whole by payment to him of a sum equal to the amount he would normally have earned as wages during a period of ten days, from October 21, 1946, to October 31, 1946, and ordered it to post notice in its plant. But the order did not include a provision requiring the reinstatement of Trujillo. The company failed to comply with the order. The Board petitioned for an order of enforcement, and the company answered resisting enforcement.
The parties address themselves to the question whether the material findings of fact made by the Board are supported by substantial evidence. It would not serve any useful purpose to detail the evidence at length. There was substantial evidence to sustain the material findings of the Board and therefore they must stand on review. National Labor Relations Board v. Columbian Carbon Co., 10 Cir., 177 F.2d 1003.
The company urges the contention that the order of the Board should not be enforced for the reason that the agents and employees of the Board were responsible for the lay off of Trujillo. Trujillo was an employee of the Ellis Canning Company prior to his entering the employ of the Fulton Bag & Cotton Mills. His employment by the Canning Company terminated and a charge of unfair labor practices was filed with the Board. After entering the employ of Fulton Bag & Cotton Mills, he sought two separate absences from his work. The excuse given on the first occasion was that he desired to attend to a personal matter. On the second occasion, he presented a letter signed by the regional attorney for the Board directing him to appear at the hearing conducted by the Board in the proceeding involving the Ellis Canning Company. At that time he stated that he was acting as interpreter in the proceeding and was being paid for his services. On inquiry, the company learned that his first absence was not on a personal matter but was to give attention to the proceeding against the Canning Company, and that on the second occasion he was not being paid for services as interpreter in that proceeding. The Board has authority to issue subpoenas requiring the attendance of witnesses, and it might have issued a subpoena for the attendance of Trujillo. But its failure to issue a subpoena for him, and his absence voluntarily to give attention to the matter then pending before the Board, did not warrant the company in laying him off and refusing to reinstate him if the actual reason for the lay off and refusal to reinstate was his membership and activities in the union and his participation in the proceedings pending before the Board. In other words, if the company laid him off and refused to reinstate him for a period of time because of his membership and activities in the union and because he was absent to attend proceedings before the Board, it is no valid excuse for the company to say that the Board might have issued a subpoena for his attendance.
The further contention of the company is that the order of the Board should not be enforced because the Board failed to protect its own processes. The company filed with the Board a motion to dismiss the proceeding on the ground that the charge was filed by Louis Levin, a representative of the union to which Trujillo belonged; that Levin was a member of the Communist Party; that the avowed purposes of that party were to undermine the economic and governmental functions of the United States; that the charge was not filed in good faith or in the interest of Trujillo; and that it was filed for the purpose of disrupting the good will between the company and its employees and to effectuate the objects and designs of the Communist Party. Substantially the same issues were tendered in the answer. The company in advance of the hearing filed a written application for the issuance of subpoenas for the attendance of certain witnesses and the production of certain books, records, and correspondence, all for the purpose of proving that Levin and Trujillo were members of the Communist Party and had attended meetings thereof. A like oral application for the issuance of subpoenas was made at the beginning of the hearing before the trial examiner, and later in the course of the hearing an offer was made to prove the facts substantially as set forth in the motion to dismiss, in the answer, and in the applications for the issuance of the subpoenas. The trial examiner declined to issue the subpoenas and rejected the tendered proof. In its decision, the Board recited generally that it had reviewed the rulings made by the examiner; that no prejudicial error was committed by such rulings; and that they were affirmed. Even though Levin may have been a member of the Communist Party, and even though his purpose in lodging the charge with the Board was to further the objects and designs of the Communist Party, those facts did not affect the jurisdiction of the Board. The Act requires a charge before the Board may issue a complaint. But the charge merely sets in motion the machinery of an inquiry. The Board makes the inquiry. And after the inquiry, the Board makes the formal complaint or fails to do so as its judgment indicates. And when the Board issues its complaint, the sole question is the truth of the accusation of unfair labor practices contained in it. The charge filed with the Board is not a pleading and is not proof. And the motives of the informer however evil or unlawful do not deprive the Board of its jurisdiction to conduct the inquiry, to file the formal complaint, or to proceed in conventional manner after the filing of the complaint. National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579.
While the Board has jurisdiction to proceed after the filing of a charge regardless of the underlying motives of the informer, it may properly determine for itself whether its processes are being abused through the filing of an information based upon evil and unlawful purposes of the informer rather that a purpose to present a violation of the Act, and in exploring that question the Board may give appropriate consideration to all facts and circumstances which have material bearing. It may do that for the purpose of protecting its processes against abuse. And if it determines with reasonable foundation that its processes would be abused by filing a complaint and going forward with the proceeding, it may decline to entertain and proceed upon the charge. In like manner, if it determines later that its processes are being abused, it may decline to proceed further. But the question whether the processes of the...
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