National Labor Relations Board v. Indiana Michigan Electric Co v. 13 8212 16, 1942

• Decision Date: 18 January 1943
• Docket Number: No. 73,73
• Citation: 63 S.Ct. 394,318 U.S. 9,87 L.Ed. 579
• Parties: NATIONAL LABOR RELATIONS BOARD v. INDIANA & MICHIGAN ELECTRIC CO. et al. Argued Nov. 13—16, 1942
• Court: U.S. Supreme Court

318 U.S. 9

63 S.Ct. 394

87 L.Ed. 579

NATIONAL LABOR RELATIONS BOARD

v INDIANA & MICHIGAN ELECTRIC CO. et al.

No. 73.

Argued Nov. 13—16, 1942.

Decided Jan. 18, 1943.

Mr. Ernest A. Gross, of Washington, D.C., for petitioner.

Messrs. Eli F. Seebirt, of South Bend, Ind., and Murray Seasongood, of Cincinnati, Ohio, for respondents.

Mr. Justice JACKSON delivered the opinion of the Court.

The court below granted respondent Indiana and Michigan Electric Company's petition to remand the case to the Labor Board to hear additional evidence as to a course of depredations, including dynamitings, committed, it is alleged, by Local B-9 of the International Broth- erhood of Electrical Workers, on the Company's properties during the pendency of the case. It directed that the Board make findings on such evidence, include it in the transcript, and make such modifications, if any, in its order, as the evidence might require. The court expressly refrained from passing on questions as to the bias and partisanship of the Trial Examiner and the sufficiency of the findings and of the evidence raised by the Board's petition for enforcement and the answer thereto. The importance of the questions raised to enforcement of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., prompted us to grant certiorari.¹

For present purposes we take to be true the facts stated in the petition or offer of proof on the basis of which the court below directed a remand. These facts were stated on oath, and have not been denied. Petitioner says that we must hold that even if true they are immaterial. On this assumption of truth the case is follows:

On November 12, 1938, Samuel Guy, the Business Manager of Local B-9 of the International Brotherhood of Electrical Workers, filed in amended form with the Board charges that the Company had been guilty of several unfair labor practices. On the same day the Board through its Regional Director issued a complaint against the Company, setting November 28, 1938, as a hearing date, and events of violence ensued in the following sequence as related to the Company's steps in defense of the case:

The Company filed its answer on November 23, 1938. On the following day, four days before the hearing, cables at one of the Company's South Bend substations were dynamited. The hearings proceeded, and the trial examiner's intermediate report recommended generally against the Company.

On September 1, 1939, the Company filed its exceptions to the intermediate report. On September 5, three of its transmission line poles were sawed off, and on September 8, a transmission line tower was dynamited. On October 17, 1939, the oral hearing on the exceptions was set before the Board at Washington for November 9, 1939. Two days later another transmission line tower was dynamited. On October 28, two transmission poles at different locations were dynamited. Another transmission tower was so destroyed on October 30, ten days before the oral hearing, and two more at different parts of the system on November 23, 1939. All carried high voltage lines, and some were located along public highways or railroad tracks.

On February 19, 1940 the Company filed with the Board a petition to reopen the case and receive further evidence. This petition alleged the commission of the depredations upon its property as set forth above and further that: John R. Marks, Assistant Business Manager of Local B-9, and Earl Freeman, one of its members, both of whom had been witnesses against the Company, and three others, were arrested after February 1, 1940, and charged with the commission of some or all of the depredations, and with having conspired to commit them all. Except Marks, each had made confessions stating that Marks paid them sums of money aggregating $2,325 for committing such acts. One of them stated that Marks had caused the first dynamiting to intimidate the Company in connection with the hearing and three stated that he had caused the later ones to intimidate it in connection with the oral argument. The Company proposed by the evidence of dynamiting to discredit Marks and Freeman, on whose testimony the Trial Examiner appeared to rely. It also sought to discredit Guy, who also had been a witness, on the claim that he knew, or must have known, of the use of the $2,325 of the Union's money for the purpose of destroying respondent's property. But it claimed more. It asserted evidence of a conspiracy to destroy property to influence the pending case, which it contended was not a good-faith labor controversy, but an unlawful effort of Local B-9 to coerce the Company to require its employees to join the union.

On February 28, 1940 the Board denied the Company's petition. It held that 'the matters recited therein have no relation to the issues in this proceedings.' The Board went on to make findings on the issues, expressly reciting that it did so 'upon the entire record in the case.' While the Board did not designate all of the testimony for printing, it has certified it all to us, it has stricken no testimony of any witness in question from the record and has made no finding that any specific parts of it were not relied upon.²

The report of the Trial Examiner, Dudley, had held the Company's attitude to be hostile and obstructive toward the effort to unionize its men, relying substantially on events as to which Guy, Marks, and Freeman had testified. The Board's findings made but little reference to the activities of Guy and no reference at all to Marks, but reached the same conclusion as to the attitude of the Company. The examiner had recommended ordering immediate and full reinstatement of Freeman and that he be made whole for all lost wages. The Board did not follow that recommendation. The examiner had recommended an order that the Company withdraw all recognition from respondent Michiana Association as representative of employees upon the ground of company promotion and domination, and the Board so found and so ordered. The examiner had also recommended that the Company be ordered to cease and desist coercing employees in their right, among other things, to 'join or assist the International Brotherhood of Electrical Workers, Local B-9.' The Board order dropped the name of the union, but ordered respondent generally to cease and desist from interfering with its employees in the exercise of their rights 'to join or assist labor organizations.'

On December 13, 1940, the Board petitioned for enforcement of its order and on July 29, 1941, the Company petitioned the Circuit Court of Appeals for a remand to the Board pursuant to § 10(e) of the National Labor Relations Act. This petition referred to the earlier petition to the Board and set forth under oath in addition that: Marks, Freeman and another member of the Brotherhood had been convicted of one of the dynamitings described in the petition and sentenced to terms of from two to fourteen years in the state penitentiary; and two others had pleaded guilty of other of the depredations. Marks had said he obtained all of the money to purchase dynamite and pay the dynamiters from the treasury of International Brotherhood of Electrical Workers, Local B-9. The petition also recited that during the hearings the Trial Examiner asked a conference with the Company attorney and urged settlement of the case. He was told of the dynamiting of November 24, 1938, and given references to articles about the practices and methods of the officers of this union, and to the record in Boyle v. United States, 259 F 803, in which the Circuit Court of Appeals for the Seventh Circuit had affirmed a conviction of Michael J. Boyle, its International Vice-President, and severely condemned his methods in labor matters. The examiner replied, 'Well, your Company will be required some time to recognize B-9 and you might as well do it now.' On three separate later occasions different attorneys or officers of the Board were informed of the depredations, but continued to urge the Company to cease resistance in the case. The truth of these statements has not been denied. Finally, the Company asserted in its petition to the Court that on reopening it would be able to prove that the Board's witnesses (not limited to Guy and Marks and Freeman) were of such character that they are not entitled to credit and belief, and that the case had no relation to the purposes of the National Labor Relations Act.

The court below stated as one ground of the Company's case for remand that the tendered evidence was material for the purpose of 'impeaching the credibility of witnesses before the Board on whose testimony the Board relied for its finding of ultimate facts.' After referring to the testimony of Guy and Marks, it said that 'at the time of the trial, the evidence adduced on the trial of the criminal cases in the Indiana State Court involving these witnesses, was not available to respondent or to the Board. The new evidence is of such character that its consideration by the Board would probably produce a different result.' In support of its remand it went on to say that the question whether the supervisory employees whose activities had been found by the Board to constitute coercion on the part of the Company 'were acting on their own behalf and that of their co-employees, or at the behest of the respondent, is the crux of the case. * * * The new evidence may throw some light on the issue of employer domination.'

Section 10(e) of the National Labor Relations Act authorizes the Circuit Court of Appeals to order additional evidence to be taken when it is shown 'to the satisfaction of the court that such additional evidence is material,' and that there were reasonable grounds for the failure to adduce the evidence at the hearing.³ In Southport Petroleum Co. v. National Labor Relations Board, 315 U.S. 100, 104, 62 S.Ct. 452, 455, 86 L.Ed. 718, we sustained the Board's contention and held that an application for leave to adduce...