National Labor Relations Bd. v. Niles Fire Brick Co., No. 8857.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: HAMILTON, MARTIN, and McALLISTER, Circuit
• Citation: 124 F.2d 366
• Parties: NATIONAL LABOR RELATIONS BOARD v. NILES FIRE BRICK CO.
• Docket Number: No. 8857.
• Decision Date: 05 December 1941

124 F.2d 366 (1941)

NATIONAL LABOR RELATIONS BOARD
v.
NILES FIRE BRICK CO.

No. 8857.

Circuit Court of Appeals, Sixth Circuit.

December 5, 1941.

124 F.2d 367

Philip G. Phillips, of Cincinnati, Ohio (Robert B. Watts, Laurence A. Knapp, Ernest A. Gross, Sylvester Garrett, and Edward J. Creswell, all of Washington, D. C., on the brief), for petitioner.

Paul Z. Hodge, of Warren, Ohio (George W. Secrest, of Warren, Ohio, on the brief), for respondent.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed its petition for enforcement of an order against The Niles Fire Brick Company, commanding the respondent to desist from unfair labor practices; to disestablish an independent union as bargaining agent; and to reinstate and pay employees who had been, because of discrimination, discharged and denied employment. The respondent denies jurisdiction of the Board in making its order, and contends that the order was not supported by evidence.

With regard to the question of jurisdiction, it appears that on September 23, 1937, the United Brick Workers' L.I.U., referred to hereafter as the Union, filed a petition requesting an investigation and certification of representatives under the provisions of Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 159(c). A hearing was held, and testimony was introduced on behalf of the petitioner, and by intervenors who represented another group of respondent's employees.

On November 15, 1937, the Union filed charges that respondent had engaged in unfair labor practices within the meaning of the act; and on January 14, 1938, the Board ordered that the case involving the petition for certification of bargaining agent be consolidated with the charge of unfair labor practices.

On March 10, 1938, hearing on the consolidated cases commenced before the duly designated Trial Examiner of the Board. At the hearing the respondent was represented by counsel, participated therein, and objected, without avail, to the consolidation. The transcript of the record in the representation case was offered in evidence by petitioner and, over the objection of respondent, was admitted in the consolidated cases. It is this evidence of which the respondent complains; as it is upon certain stipulations therein contained that jurisdiction was found to exist on the ground that the respondent was engaged in interstate commerce.

When the consolidated cases came before the Examiner, in order to determine jurisdiction, the first question to be decided, was whether the respondent was engaged in interstate commerce. The evidence in the representation case, in which some proofs had previously been taken, appears to have consisted almost entirely of the introduction of evidence on this very question of interstate commerce. No final determination had been made in the representation case, as it was stated that briefs were to be filed thereafter.

When hearing commenced in the consolidated cases, therefore, the first action of counsel for the Board was to introduce the transcript of the previous hearing for the purpose of showing that respondent had stipulated facts sufficient to resolve the conclusion that it was engaged in interstate commerce. This stipulation in the previous hearing consisted of admissions on the part of respondent that it secured approximately 60% of the raw materials which it used in making its products, outside the State of Ohio; and that, in the course of its business, it shipped approximately 10% of its finished product outside the state, of which the greatest part was sent to Pennsylvania, where the company had a salesman located.

Under the rules of the Board, respondent was a party in the representation case. National Labor Relations Board Rules and Regulations, Series 2, as amended, Art. III, Sec. 3 (Title 29, Sec. 203.3. Code of Federal Regulations of the United States of America. 1939 — Supp.). It was given notice of that proceeding, was represented by its counsel, participated therein, and moved to dismiss the petition on the ground of

124 F.2d 368

lack of jurisdiction. In opening the evidence in that proceeding, the attorney for the Board stated to the Examiner the admitted facts, as "the form of a stipulation between counsel for respondent and myself for the Board." Thereafter, in answer to the inquiry of the Examiner as to whether the stipulation was agreed to "by the respondent," the attorney for The Niles Fire Brick Company supplemented certain facts, and stated that the stipulation was correct. On the hearing of the subsequent complaint of unfair labor practices, counsel for The Niles Fire Brick Company objected to the introduction of this stipulation, as shown by the transcript of the record in the representation case, on the ground that the two cases could not be consolidated and that respondent had not been a party to the previous case. In its contention, respondent relied upon an interpretation of Section 9 (c) of the statute, which provides that in representation cases the Board shall provide for a hearing, either in conjunction with a proceeding under Section 10, 29 U.S.C.A. § 160, or otherwise. It is claimed that the hearing of the unfair practices case was not held in conjunction with the representation case, as the latter had been concluded, and, therefore, a joint hearing was impossible

To the claim of counsel for the Board that, under Art. II, Sec. 36 (b) and Art. III, Sec. 10 (c) (2), of the Rules and Regulations of the Board, such consolidation was authorized, respondent answers that, since Congress has provided a specific method of procedure in Section 9 (c) of the act, it has impliedly negatived the power of the Board to adopt any other procedure, under the rule of statutory construction embodied in the maxim, expressio unius est exclusio alterius.

Respondent's position is based on highly technical grounds. After all essential jurisdictional facts have been...