National Labor Relations Bd. v. Blackstone Mfg. Co., 9.

• Decision Date: 17 November 1941
• Docket Number: No. 9.,9.
• Citation: 123 F.2d 633
• Parties: NATIONAL LABOR RELATIONS BOARD v. BLACKSTONE MFG. CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

123 F.2d 633 (1941)

NATIONAL LABOR RELATIONS BOARD v. BLACKSTONE MFG. CO., Inc.

No. 9.

Circuit Court of Appeals, Second Circuit.

November 17, 1941.

Ida Klaus, and Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Frederick M. Davenport, Jr., and Mary Lemon Schleifer, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

J. Russell Rogerson, of Jamestown, N. Y., for respondent.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This case comes before us on a motion by the National Labor Relations Board under § 10(e) of the Act, 29 U.S.C.A. § 160(e), for an order enforcing its own order made in a proceeding under § 10(c). The order directed the respondent, the Blackstone Company, to bargain with a lodge of the International Association of Machinists, "certified" by the Board as bargaining representative of its employees; and also enjoined the respondent from telling its employees that their union activities might close down the plant. The respondent's objections to the motion are (1) that there was no adequate evidence to support the Board's findings on which its order was based; (2) that the form of the order was irregular so far as it enjoined, not only the respondent and its officers and agents, but also "its successors and assigns"; and (3) that the controversy has become moot because the respondent has sold all its property to its parent, the Jamestown Metal Equipment Company, and has dismantled its plant and stopped all business.

The first question is whether the union which the Board ordered the respondent to recognize, was in fact the lawful bargaining representative of its employees; and that depends upon the propriety of a "certificate" issued by the Board at the conclusion of a proceeding instituted under § 9 in March, 1938. The union had begun to organize the plant in the autumn of 1937 and by the next spring felt strong enough to petition the Board for a "certificate". At hearings before an examiner appointed in this proceeding the union appeared and offered in evidence 121 cards, each authorizing it to represent the signer; all the signers were or had been, employees, though a number were not members of the union. These cards had all been signed between April 26, and May 10, and all but two of them had been witnessed by the union's president, Chapman, or by a former president, Johnson. Chapman was called, authenticated those cards he had witnessed, and swore that when the union had petitioned for a "certificate" — on March 23, 1938 — the respondent had had 150 employees other than "supervisory and clerical", and that on May 11 it had had 111. (Obviously, therefore, some of the cards bore the names of employees not on the payroll at the later date. Nevertheless, the cards were evidence of a clear majority of all those still employed in May, even if all those who had left the company's employment were among the signers.) Upon this showing the union offered the cards in evidence, "with the condition attached that they are being introduced in evidence solely for examination by the Trial Examiner or the Board;" the excuse for this limitation being that the respondent might use the cards to discriminate against the signers. The examiner admitted the cards with this reservation over the respondent's protest, and the union, after calling Johnson to authenticate the signatures upon those cards which he had witnessed, closed its case. The respondent thereupon asked the examiner for subpoenas for all signers of the cards, and the examiner said he would consider the request. When the hearing went forward on the next day the union withdrew "the reservation and the cards" were "offered in evidence" unconditionally; but the respondent repeated its request for subpoenas. This was not granted, and the hearing was adjourned for six days more, after which it proceeded before another examiner, who closed the hearings without passing on the respondent's request. On his report the Board "certified" the union, finding as a reason for not issuing the subpoenas that the demand for them had been made "merely to obstruct the proceeding."

In National Labor Relations Board v. Dahlstrom Metallic Door Company, 2 Cir., 112 F.2d 756, 758, the Board had also refused a blanket request of the employer for subpoenas to all his employees; notwithstanding which we affirmed the order. We declared that "requests for subpoenas should be viewed sympathetically in order to ensure a fair hearing"; but that the Board's rule (§ 21, Art. II) was a reasonable one that the applicant should "specify the name of the witness and the nature of the facts to be proved by him". We sustained the refusal because what the respondent "specified" as to "the nature of the facts to be proved" by the witnesses was irrelevant. In the case at bar the respondent's only statement of "the nature of the facts to be proved" was that it wished "to cross-examine them" (the signers of the cards) "as to the authenticity of their signatures and as to the present status of any of the alleged authorizations contained on the cards". This...