National Labor Relations Board v. Ford Motor Co., 8399.

Decision Date05 December 1940
Docket NumberNo. 8399.,8399.
Citation114 F.2d 905
PartiesNATIONAL LABOR RELATIONS BOARD v. FORD MOTOR CO.
CourtU.S. Court of Appeals — Sixth Circuit

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Charles Fahy and Robert B. Watts, both of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and H. G. Ingraham, all of Washington, D. C., on the brief), for petitioner.

Alfred McCormack, of New York City (Frederick H. Wood, Alfred McCormack, and Cravath, de Gersdorff, Swaine & Wood, all of New York City, and Louis J. Colombo, of Detroit, Mich., on the brief), for respondent.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

Upon charges filed with the petitioner's Regional Director at Detroit, by the International Union, United Automobile Workers of America, accusing the respondent of engaging in unfair labor practices as defined and condemned by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., a complaint was issued on June 26, 1937, alleging violations of the provisions of Section 8(1), (2) and (3) of the Act. Following a hearing before a trial examiner, subsequent transfer of the proceedings to the Board, and numerous procedural steps before the Board and here, the order sought to be enforced was issued on August 9, 1939.

To the petition for enforcement the respondent filed answer accompanied by a cross-petition to review and set aside the petitioner's order, pursuant to Section 10(f) of the Act. Collaterally it presented motions for orders to compel the Board to answer the allegations of its cross-petition, to direct the Board to supplement the record, and to file additional parts of the record, together with a petition for a commission to take depositions of various officers and employees of the Board in respect to the practice by which decision was reached. The petition for a commission to take depositions was denied as being within the decision announced by us June 10, 1938, in Ford Motor Company v. N. L. R. B., 6 Cir., 99 F.2d 1003, affirmed 305 U.S. 364, 59 S.Ct. 301, 83 L.Ed. 221, though on petition for certiorari based upon other grounds of challenge. The motions were passed to the hearing and will be disposed of by this decision.

After the Board had set aside its original order upon our grant of its petition to withdraw its first enforcement petition as disclosed by the above citations, a revised decision was announced as having been made upon reconsideration of the entire record. It comprised revised findings of fact and conclusions of law, and included an order commanding the respondent to cease and desist from:

(a) Discouraging membership in International Union, United Automobile Workers of America or any labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment because of their membership in, activity in behalf of, or sympathy toward any such labor organization;

(b) Threatening, assaulting, beating, or in any other manner interfering with, restraining, or intimidating, directly or indirectly, members of International Union, United Automobile Workers of America or any other labor organization of its employees distributing or otherwise disseminating union literature in the vicinity of its River Rouge plant;

(c) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by circulating, distributing or otherwise disseminating among its employees statements or propaganda which disparages or criticizes labor organizations or which advises its employees not to join such organizations;

(d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act.

In addition to its cease and desist provisions the order directed the respondent to take affirmative action which included reinstatement to their former positions of 24 of its employees, without prejudice to their seniority and other rights; that they be made whole for loss of pay during the period following their discharge, except that any monies received by such employees during that period for work performed upon federal, state, county, municipal or other work-relief projects, should be paid over to the appropriate fiscal agency for such governments as supplied the funds for the projects. The order likewise contained the usual provisions for the posting and maintaining of notices that the cease and desist provisions of the order and its requirements for affirmative action would be complied with by the respondent.

The answer and cross-petition challenge the validity of the order and allege that it must be set aside or denied enforcement on numerous grounds, including failure of the trial examiner to act fairly, impartially, and in a judicial manner, and because he openly showed his bias and prejudice at the hearing and his belief from the beginning that the respondent was guilty of the unfair labor practices charged in the complaint. They attack the decision of the Board because of its reliance upon an erroneous "background" for the unfair labor practices; because the Board failed to consider facts and circumstances which ought to have been considered; because its findings, conclusions, and order with respect to the respondent's publications are not authorized by the Act and do not embrace the basic facts needed to sustain them; because the order is erroneous as a matter of law, even if the findings are correct; and because it is too broad in scope and so not authorized by the Act.

The unfair labor practices charged to have been engaged in by the respondent include assaults alleged to have been made under its authority or sanction upon certain union organizers, employees, and others, to prevent distribution of union literature in the so-called riot of May 26, 1937, and upon May 27, 1937; the distribution of anti-union literature among its employees by the respondent; the taking and publicizing of a so-called "Vote of Confidence" by employees expressing approval of the respondent's labor policy; and the discriminatory discharge of 24 employees for union activity. The evidence held by the Board to sustain its findings of unfair labor practices, either directly or by reasonable inference, together with that supporting the challenge to its inferences, the circumstances constituting the background considered, and those which are urged should have been considered, will be briefly treated in relation to the specific findings of the Board and the challenge to the validity of particular provisions of its order. We are obliged first to consider the more general charge of unfairness and partiality in the hearing by the trial examiner, and whether the respondent was thereby prejudiced or denied that due process which, above and beyond all else, constitutionally protects those charged with violations of law from captious and arbitrary exercise of authority.

The grievance, with respect to the hearing as conducted by the trial examiner, is directed principally to a bias said to have governed the examiner's conduct toward witnesses, his interference in the examination, in a highly partisan manner, for the purpose of eliciting testimony favorable to the Board's case, and by a hostile and abusive attitude toward witnesses called by the respondent, tending to intimidate them. It led him also, it is asserted, to arbitrary limitations upon cross-examination by respondent's counsel, and to an abusive attitude toward him, which, it is said, encouraged the Board's witnesses to color their testimony so that it damaged the respondent's cause, and added to the intimidation of its witnesses.

We may accept as fundamental, the axiom that a trial by a biased judge is not in conformity with due process of law. Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243; Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct. 651, 56 L.Ed. 1038; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292, 294, 57 S.Ct. 724, 81 L.Ed. 1093. Not all departures from strict propriety, however, justify a reviewing court in setting aside decision in a hearing upon which so much time and effort has been spent as upon this. Material prejudice to the interest of the complaining litigant must clearly appear. It may be conceded that the trial examiner in the present case overstepped the bounds of that judicial propriety which contestants have a right to expect not only from courts but from administrative tribunals, and is so conducive to public confidence in their adjudications, and that he manifested a peculiar concept of the nature of the judicial function he was called upon to exercise. Indeed, the Board does not condone his lapses. We must keep in mind, however, that ultimate decision was not his but that of the Board; that he made no intermediate report or recommendation; that there were substantially no objections preserved on the record to his rulings upon the admission or exclusion of evidence, and no motion to suppress evidence made either before the examiner or the Board prior to the announcement of the Board's original decision. There is no contention here that material evidence taken by the examiner was suppressed, or that the respondent was not given full and adequate opportunity to affirmatively develop its defense against the charges contained in the complaint. The injudicious conduct of the trial examiner reaches no such clearly prejudicial impropriety as was held to invalidate the decisions of the Board in ...

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