National Labor Relations Bd. v. Lane Cotton Mills Co.

• Decision Date: 05 January 1940
• Docket Number: No. 9071.,9071.
• Citation: 108 F.2d 568
• Parties: NATIONAL LABOR RELATIONS BOARD v. LANE COTTON MILLS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 568 (1940)

NATIONAL LABOR RELATIONS BOARD v. LANE COTTON MILLS CO.

No. 9071.

Circuit Court of Appeals, Fifth Circuit.

January 5, 1940.

Charles Fahy, General Counsel, National Labor Relations Board, Robert B. Watts, Associate General Counsel, National Labor Relations Board, and H. G. Ingraham, Attorney, National Labor Relations Board, all of Washington, D. C., for petitioner.

Alfred C. Kammer, Charles Rosen, Henry P. Dart, Jr., and Alfred C. Kammer, all of New Orleans, La., for respondent.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This matter was heard on the objections of the petitioner to interrogatories filed by respondent with its answer to a petition to enforce an order of the National Labor Relations Board.

On March 24, 1939, the National Labor Relations Board filed its order rendered against the Lane Cotton Mills Company in proceedings had before the Board prior thereto. Respondent filed its answer to this petition, alleging as facts certain matters which it contended rendered the order illegal and invalid, and that it wished to establish these facts by the testimony of the members of the Board. The answer alleged that the order was entered without the full and fair hearing to which respondent was entitled; that, on the hearing, the evidence was taken before a trial examiner, and that thereafter the Board ordered the proceeding transferred to itself without any intermediate report, proposed findings, or conclusions to which exceptions could be taken; that, without serving upon respondent any intermediate report, proposed findings, or conclusions, and without affording respondent any opportunity to file a brief, make oral arguments, or to be heard in any manner, the Board issued its findings of fact and conclusions of law, and rendered its order thereon on June 13, 1938; and that, on July 2, 1938, respondent filed its petition in this court seeking review of the proceedings.

It appears that, after these proceedings were had as alleged by respondent, the Board set aside its order of June 13, 1938, and the petition for review was dismissed. Thereafter, without notice, the Board issued its proposed findings, conclusions, and order, which were identical with those made and rendered on June 13, 1938, and entered an order allowing respondent to file exceptions thereto and to request oral argument and permission to file briefs. Exceptions were filed, and, pursuant to requests and notices, oral arguments were had and briefs were filed by respondent No one appeared in support of the proposed decision and order, and respondent was not served with a copy of any brief in opposition to the one filed by it.

On November 19, 1938, the Board made its final decision, which it now seeks to enforce. It is substantially the same as that rendered on June 13, 1938. Respondent alleges in its answer that neither the Board nor any member thereof saw or heard the witnesses; that the Board did not read or give judicial consideration to the evidence; that the only consideration given to the record and evidence was that given by subordinate employees; that the decision was made and prepared by said employees, known as the reviewing section, and not by any member of the Board; and that, therefore, there had been no valid findings, conclusions, decision, or order rendered in the proceeding. Respondent now contends that petitioner did not review the evidence and form its own conclusions therefrom, but relied entirely upon the report and findings of its subordinates, when entering the order of June 13th, and that at no time thereafter did it actually consider the matter on the record, arguments, and brief, but that the subsequent proceedings were had as a mere matter of form to cure what petitioner conceded to be a fatal defect in the proceeding, and that the order now before the court is, in reality, the order of June 13th.

With its answer to the petition for enforcement of the order, respondent filed its interrogatories. In so far as they are material here, these interrogatories seek to establish, by the depositions of the Board members, the allegations outlined above as having been made in respondent's answer. In answer to petitioner's objections, respondent places its principal reliance on the decision of this court in the case of National Labor Relations Board v. Cherry Cotton Mills, 5 Cir., 98 F.2d 444, 447. Petitioner contends that the case at bar is distinguishable from the Cherry Cotton Mills case, and that, if it is not, the former opinion of this court is not in harmony with the other cases on the subject.¹

On subsequent unreported proceedings before this court in the Cherry Cotton Mills case, the Board was allowed to dismiss without...