National Labor Relations Bd. v. Ray Smith Transport Co., 13612.

• Citation: 193 F.2d 142
• Decision Date: 20 December 1951
• Docket Number: No. 13612.,13612.
• Parties: NATIONAL LABOR RELATIONS BOARD v. RAY SMITH TRANSPORT CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

193 F.2d 142 (1951)

NATIONAL LABOR RELATIONS BOARD v. RAY SMITH TRANSPORT CO.

No. 13612.

United States Court of Appeals Fifth Circuit.

December 20, 1951.

Elmer Davis, Ch. Law Officer, NLRB, Fort Worth, Tex., David P. Findling, Assoc. Gen. Cnsl. NLRB, A. Norman Somers, Asst. Gen. Cnsl. NLRB, Washington, D. C., for petitioner.

George E. Seay, W. D. White, Dallas, Tex., for respondent.

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

HUTCHESON, Chief Judge.

Exonerating the trial examiner of specific charges of unfairness and bias, and adopting substantially whole his findings, conclusions and recommendations, the Board found¹ Respondent: (1) subject to the Act, 29 U.S.C.A. § 151 et seq.; (2) in violation of Sec. 8(a) (1), in respect to statements made to and questions asked of its employees; and (3) in violation of Secs. 8(a) (1) and (3), in respect of the discharge of six employees.

Based on these findings, it entered its order requiring respondent to cease and desist,² and to take affirmative action.³

Respondent not having complied therewith, the Board is here by petition to enforce its order. Respondent, on its part, vigorously, indeed vehemently, assails the proceeding before the Board as (1) without jurisdiction; (2) arbitrary, biased and unfair; and (3) as based on findings, conclusions, and recommendations of the examiner which are not only erroneous but so fantastic, so bizarre, so contrary to ordinary right reason as that the wish appears father to the thought, the finding the product of the examiner's blind faith in the goodness of the Board's cause.

Insisting, as it did before the Board, that in this case, as in Phelps case, N. L. R. B. v. Phelps, 5 Cir., 136 F.2d 562, 563, the partiality and bias of the examiner has vitiated the hearing, it urges upon us that a judgment based on his findings and conclusions may not stand, the order of the Board must be vacated, and the matter remanded to it so that Respondent may be accorded the fair and impartial trial guaranteed to it by law.

Further, invoking N. L. R. B. v. Pittsburgh S. S. Co., 340 U. S. 498, 71 S.Ct. 453, 95 L.Ed. 479 and N. L. R. B. v. Russell, 5 Cir., 191 F.2d 358, it insists that if this is not to be done, enforcement of the order should be denied, because, viewed upon the record as a whole, the findings are without legal support.

We find ourselves in disagreement with Respondent's position of no jurisdiction in Board and Court. In N. L. R. B. v. Gulf Public Service Co., 5 Cir., 116 F.2d 852, 854, the controversy, arising over the efforts of the Board to extend the actual, to the limits of the theoretical, jurisdiction, then being in its early stage, we pointed out the absence from the act of any "standard of degree by the use of which it can be said, as a matter of power rather than of wise policy, that a particular amount of probable direct interference with interstate commerce is too little to come within its cognizance".

In other cases, and particularly in N. L. R. B. v. Mid-Co Gasoline Co., 5 Cir., 183 F.2d 451, we have reaffirmed this view. Upon the authority of those cases and the many others they cite, we reject Respondent's first position.

Of its second position, that the record discloses a hearing conducted with such partiality and unfairness as to amount to a denial of due process, we agree with Respondent that it does present "the usual picture of supporting findings arrived at by a process of quite uniformly `crediting' testimony favorable to the charges and as uniformly `discrediting' testimony opposed." N. L. R. B. v. Caroline Mills, 5 Cir., 167 F.2d 212, 213.

We cannot say of it, though, that it presents anything more than so many of these hearings have presented, a picture of administration, at its most, unjudicial, worst, administration which, keeping the promise of a fair hearing to the ear, breaks it to the hope. In N. L. R. B. v. Robbins, Tire & Rubber Co., 5 Cir., 161 F.2d 798, quoted with approval in National Labor Relations Board v. Pittsburgh, 337 U.S. 656, 659, 69 S.Ct. 1283, 93 L.Ed. 1602, we have declared that this alone would not be sufficient to characterize a hearing as legally unfair. We adhere to that ruling.

Here the record shows no overt acts, no evidence of advocacy external to the report, so that what we said and did in Phelps' case supra, is without application, and we will not, as we did there, vacate the order and remand the whole matter to the Board for another trial.

When it comes, however, to Respondent's third point, that the findings of the examiner are without reasonable support in the evidence, the matter of the examiner's attitude stands differently. In connection with our determination of whether, as claimed by the Board, the findings are fairly supported by legal evidence, or, as claimed by the Respondent, are without sound legal foundation, we must, to the extent that the record supports them, give due weight to the claims of the respondent. These are: that the findings were not the result of correct reasoning applied to legal evidence, but of the wish being father to the thought; that they were influenced by, indeed were the result of, the examiner's assuming the role of advocate, rather than of judge; that in support of the charges, inference is based on inference, presumption piled on presumption;⁴ and that, beginning with inadmissible hearsay, and proceeding on suspicion and conjecture,⁵ they represent a made or synthetic case.

In announcing our determination, it will serve no useful purpose to unduly prolong this opinion by discussing in detail the evidence relied on by the examiner as to each of the unfair labor practices found. It is sufficient to say that a survey of the record and of the appendices of Respondent and Board inescapably shows that the findings and order are without factual or legal basis, and that one of the main reasons that this is so is that the examiner completely forgot: that, in the hearing conducted by him, the Board was cast in the role of accuser, the examiner in that of judge; that the burden was upon the Board to prove its charges by competent and credible evidence, and not upon the Respondent to disprove them; and that the examiner was obligated by virtue of his office to hear all the witnesses, and to make his determination, fairly and impartially, without predilection for any, or predetermination as to the result.

Turning to the evidence in respect of the discharges, because they are the gravamen of the Board's case, — indeed they are the pivot on which it turns, it is at once evident that, to the mind of the examiner, the burden was not on the Board to prove that they were for union activity, but on the Respondent to prove that they were for cause, and also that, to his eager credulity, straws in the wind, offered in support of the Board's case, became hoops of steel, and trifles light as air were confirmations strong as proofs from Holy Writ.

It was this attitude, so evident in the long and argumentative report of the examiner, couched in the language not of adjudication, but of advocacy, and this attitude alone, which enabled the examiner, upon the foundation of a conversation,⁶ testified to alone by Bain, a dischargee, to rear the whole superstructure of the findings that Bain and all of the other dischargees were discharged for union activity.

It was this attitude,⁷ and this alone, which enabled the examiner to disregard and discredit the positive testimony, not only of every employee of the Respondent, but of disinterested witnesses, customers of the Respondent, who testified positively to the discourtesies to them for which Bain and Veazey were discharged.

It was this attitude which enabled him to find, too, that the discharges were made for union activity; in the face of the positive testimony of Respondent and its officers, that they did not know that the men discharged were members of the union, that they did not even know that any effort was being made to unionize their men; in the complete absence of testimony of any witness that he had conveyed such information to the responsible officers of the company; and in the face of the undisputed testimony, that there were other members of the union than the men discharged, and that Pickard, one of the dischargees, was not one of those Bain claimed to have named.

It was this attitude which enabled him to accept as established, without any testimony to support it, and in the face of the positive testimony to the contrary, the theory of the union and the Board, that Bain's testimony, as to his conversation with Hillin, and Hillin's subsequent going on the deer hunt with Atwell and other officers of the company, was sufficient evidence: that Hillin had repeated this conversation to Atwell, one of Respondent's officers; that...