National Labor Relations Board v. Biles Coleman L. Co.

• Decision Date: 23 June 1938
• Docket Number: No. 8764.,8764.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BILES COLEMAN LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

98 F.2d 16 (1938)

NATIONAL LABOR RELATIONS BOARD v. BILES COLEMAN LUMBER CO.

No. 8764.

Circuit Court of Appeals, Ninth Circuit.

June 23, 1938.

Weter, Roberts & Shefelman, of Seattle, Wash., for Lumber Co., petitioner on motions.

Robert B. Watts, Acting Gen. Counsel, National Labor Relations Board, and Bertram Edises, Atty., National Labor Relations Board, both of Washington, D. C., for Labor Board, respondent on motions.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

DENMAN, Circuit Judge.

The National Labor Relations Board has petitioned for our enforcement of its order that the Biles Coleman Lumber Company, a corporation, respondent, cease and desist from certain unfair labor practices, reinstate certain employees, perform certain acts, and otherwise to effectuate the purposes of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.

The Lumber Company answered the petition and pleads, as an affirmative defense, that the Board's order of which enforcement is sought was made in proceedings in which the Lumber Company was denied due process under the Fifth Amendment to the Constitution, U.S.C.A.Const. Amend. 5.

We are required to consider such claimed affirmative defense since "all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority are open to examination by the court". National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 47, 57 S.Ct. 615, 629, 81 L.Ed. 893, 108 A.L.R. 1352.

Upon information and belief the Company alleges that, prior to the hearing before the Board and thereafter, no member of the Board: "* * * read all of the testimony in the case, or read or examined all of the exhibits filed, or read a sufficient portion of the testimony and exhibits to be competent to judicially appraise and weigh the evidence or to form a basis for the findings of fact, conclusions of law, and Order.", and "* * * That the Findings of Fact, Conclusions of Law, and Order were prepared by employees or subordinates of the Board and were never, in advance of signature thereof by the Board, submitted to the respondent or its attorneys, and the said respondent was never given any opportunity to object to the form or substance thereof."

The Board moves to strike these allegations on the ground that they do not show an absence of due process in the Board's action with reference to its findings, conclusions and order.

The allegation that no member of the Board "read a sufficient portion of the testimony and exhibits to be competent to judicially appraise and weigh the evidence or to form a basis for the findings of fact, conclusions of law, and Order", is an allegation of a conclusion of law. There is no allegation of fact as to the amount of testimony which was read to constitute a legal insufficiency for a judicial appraisal as to the weight of the evidence or to form a basis for the findings of fact, conclusions of law, and order.

This leaves the bare allegation that the Board had not read "all of the testimony in the case, or read or examined all of the exhibits filed". This is not an allegation of denial of due process. The Supreme Court has held that the "evidence thus taken may be sifted and analyzed by competent subordinates. * * * The requirements are not technical". Morgan v. U. S., 298 U. S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288.

Furthermore, so far as concerns reading "all" the testimony and examining all of the exhibits, it may well be that the brief admitted to have been filed by the Lumber Company may have made admissions...