National Labor Relations Bd. v. Cherry Cotton Mills, 8751.

• Decision Date: 29 July 1938
• Docket Number: No. 8751.,8751.
• Citation: 98 F.2d 444
• Parties: NATIONAL LABOR RELATIONS BOARD v. CHERRY COTTON MILLS.
• Court: U.S. Court of Appeals — Fifth Circuit

98 F.2d 444 (1938)

NATIONAL LABOR RELATIONS BOARD v. CHERRY COTTON MILLS.^*

No. 8751.

Circuit Court of Appeals, Fifth Circuit.

July 29, 1938.

Charles Fahy, Gen. Counsel, National Labor Relations Board, Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, and David McCalmont, Jr., National Labor Relations Board, all of Washington, D. C., for petitioner.

W. H. Mitchell and Chas. A. Poellnitz, Jr., both of Florence, Ala., for respondent.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

The National Labor Relations Board has filed a petition for enforcement of an order directed against Cherry Cotton Mills. The petition states that the matter was heard by a trial examiner designated by the Board, was on March 30, 1936, transferred by the Board to itself, that oral argument by respondent Cherry Cotton Mills was heard by the Board on March 9, 1936, and on Dec. 30, 1937, "the Board, having duly considered the matter and being sufficiently advised in the premises, and being of the opinion upon all the testimony and evidence in said case that the respondent had been and then was engaging in certain unfair labor practices affecting commerce," stated its findings of fact and conclusions of law and entered its order thereon. The petition is signed and sworn to by the Chairman of the Board and another member.

The respondent answered under affidavit of its President that the order was illegal and invalid for want of a fair and open hearing, especially in that no copy of the examiner's report, if any, was furnished respondent; that at the argument before the Board counsel for the complainant was present but made no argument, and if they filed a brief respondent was given no copy; that no proposed findings of fact were submitted to respondent before the final order; and that the Board never at any time read or gave judicial consideration to the evidence submitted at the hearing, but the same was considered only by "hirelings" not vested by law with judicial duty and responsibility; by reason of all of which the order if enforced would deprive respondent of its liberty and property without due process of law. There was a prayer to be allowed to take the depositions of the members of the Board and of others named. By an amendment of the answer it was further alleged that the Board had referred the case for analysis and a report of proposed findings of fact and conclusions of law to its "Review Division," whose report was not served on respondent nor any opportunity given to be heard respecting it before it was adopted. A prayer was added to set the order aside. The respondent also filed interrogatories for discovery under Equity Rule 58, 28 U.S.C.A. following section 723, to be answered by the three members of the Board; and a petition for a commission to take the depositions of named witnesses residing more than one hundred miles from the place of sitting of the court who are alleged to know how the case was handled by the Board and how the decision was reached. The Board, by its counsel, objects to the interrogatories propounded to the Board members on the grounds that Equity Rule 58 is applicable only to equity proceedings in the District Courts; that additional evidence in a proceeding like this can be taken only under the provisions of Sect. 10(e) and (f) of the National Labor Relations Act, 29 U.S.C.A. § 160(e, f); that the matter of each of the interrogatories is irrelevant to the issues, and not competent to be enquired of by this court; that the allegations are vague and not shown to be based on reliable information, and are a "fishing expedition"; and that some of the interrogatories relate to intra-office confidential communications, and some call for conclusions only. Opposition was also filed to the taking of the depositions. We at present will deal only with the proposed interrogatories and depositions.

As has been stated, the petition of the Board to this Court states that the Board considered the case before it and upon all the testimony and evidence made its findings of fact and issued its order. The answer alleges that the Board did not consider the evidence but referred it to others for suggested findings of fact and that with no opportunity to respondent to know of or criticize the suggestions, they were adopted by the Board without further enquiry or investigation. The issue thus tendered is, we think, one which this court is under duty to entertain and decide. One party is asking the court to enforce the order; the other is asking that it be set aside. Our jurisdiction arises under Section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C.A. § 160(e) (f). We are there given power "to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board. * * * The jurisdiction of the court shall be exclusive and its judgment and decree shall be final," except as orderly reviewed. Since the jurisdiction is exclusive, there cannot be a flank attack in some other federal court upon the validity of the order. The scheme of the law is that the Board's order shall not be self-executing, but shall be specially presented for enforcement or annulment to one of the courts named in the statute with the broad powers just quoted, and there only may the order be judged. Ordinarily its intrinsic merits will be the issue, and the language of the statute is mainly addressed to the...