National Labor Relations Board v. Oregon Worsted Co., 8675
| Decision Date | 28 January 1938 |
| Docket Number | 8676.,No. 8675,8675 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. OREGON WORSTED CO. (two cases). |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Thomas I. Emerson and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., and Bertram Edises, Atty., National Labor Relations Board, of San Francisco, Cal., for petitioner.
Coan & Rosenberg and Abe Eugene Rosenberg, all of Portland, Or., for respondent.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
Respondent employer moves the court for an order requiring the petitioner to certify to the court a so-called report of respondent showing compliance with the recommendations of the trial examiner's report.
The motion is based on the theory that since such report states that respondent has complied with the recommendations of the trial examiner, the case is ended and the Board has lost its jurisdiction to make any orders we are called upon to enforce, whether in addition to or modification of the recommendations.
We do not so hold to be the character of the recommendations of the trial examiner. The remedy of the statute, National Labor Relations Act, 29 U.S.C.A. § 151 et seq., is in the orders of the Board to cease and desist and take the designated affirmative action. The recommendations of the trial examiner are no more than recommendations to the Board as to its action.
The Board may accept or reject any and add to the accepted recommendations such other orders as seem warranted by the evidence and its findings. In this case, the facts proved before the examiner are claimed by the Board to support an order made by it for reinstatements and payment of back wages, on which no recommendations at all were made by the examiner. Hinc illæ lachrimæ.
While performance of all the recommendations by the examiner covering every phase of the complaint may lead the Board, in its administrative discretion, to dismiss the petition, such performance gives no right to the respondent to insist on such dismissal. The objective of the act is the Board's orders and the examiner is not the Board for such objective. The regulation (Art. I, § 5) defining the trial examiner as the Board, its member, agent, or agency conducting the hearing, does not make the examiner the Board in other Board functions.
Furthermore, a mere report by respondent that there has been performance of the examiner's recommendations does not establish it as a fact. It is a mere ex parte statement upon which the Board may take further evidence as to its verity — but here again to determine the administrative question whether it will continue the proceeding for all or part of the remedial action sought. Since the recommendations of the examiner for Board orders may be rejected or added to by the Board, performance by the respondent of the recommended acts offers no reason for the respondent not excepting to the examiner's findings or the procedure before him.
Motion denied.
I have concurred in this decision, though it may well be that we have the discretion to consider the question whether the portions of the record sought to be brought before us may affect our action in some way not sought by the respondent's motion. If we have such discretion, it does not seem wise to exercise it in view of the requirement of the statute for prompt disposition of the other questions of paramount importance in the litigation.
The argument on the motion covered a wider area than the issue raised by it. It succeeded a similar wider area of discussion of the same questions in the case of National Labor Relations Board v. American Potash & Chemical Co., No. 8681, subject to further briefing. Several of these questions arising in that discussion, pertinent, as I see it, to this further briefing, are here stated for guidance in that briefing, as well as the briefing in the case at bar. What is here stated is my personal viewpoint, in which my associates have expressed no opinion.
The Employees' Mutual Council is alleged and found by the Board to be a union of employees of respondent, dominated in its formation and conduct by the respondent, their employer. It has not appeared amicus curiæ or otherwise, yet we are called upon by the Board to order its paralysis in its major function as a labor union. It is a situation foreign to American concepts of justice, in which the court must exercise meticulous care in the determination of the rights of the absent parties to be affected by our action.
Among other orders made on June 11, 1936, by the Board, sought by the Board to be ordered by this court, are that the employer, the single respondent, shall cease and desist from domination of or interfering with the union, and in addition:
If we grant an order that the respondent shall "withdraw all recognition" of the union and "post notices * * * That the Employees' Mutual Council is disestablished, and that respondent will refrain from any recognition thereof," our order will prevent the union in the future from bargaining with the respondent for better wages, hours, or other working conditions, and make useless its right to strike to attain such betterment.
We have held we cannot exercise such power over the freed union in National Labor Relations Board v. Pacific Greyhound Lines, Inc., 9 Cir., 91 F.2d 458. Petitioner's briefs in both the cases now under submission seek to have us overrule the principle so established in that case.
In that case we confirmed the findings of the lower court that the employer, as charged, had dominated the union, first, in its organization, and, second, in the conduct of its affairs thereafter. The violations by the employer of the provisions of the statute against unfair labor practices were as subversive of the purposes for which the act was created to...
To continue reading
Request your trial
-
National Labor Relations Bd. v. Sterling Elec. Motors
...Board v. Cowell Portland Cement Co., supra. Cf. Wallace v. Hudson-Duncan & Co., 9 Cir., 98 F.2d 985, 992; National Labor Relations Board v. Oregon Worsted Co., 9 Cir., 94 F.2d 671, 673. Realizing this attitude, the Board in brief and argument sought to justify its order disestablishing the ......
-
National Labor R. Board v. American Potash & C. Corp.
...order, not the propriety of the order. We are concerned only with the latter. The motion is denied. National Labor Relations Board v. Oregon Worsted Co., 9 Cir., 94 F.2d 671, 672; National Labor Relations Board v. Biles-Coleman L. Co., 9 Cir., 96 F.2d 197, 198; National Labor Relations Boar......
-
License of Topik, Matter of
...to, reject, or modify the recommendations of the A.L.J. as warranted by its review of the evidence and findings. N.L.R.B. v. Oregon Worsted Co., 94 F.2d 671, 672 (9th Cir.1938). Therefore, we conclude that the Commission may preliminarily delegate its peer review authority to an A.L.J. purs......
-
National Labor Relations Bd. v. Elkland Leather Co.
...recommendation. International Ass'n of Machinists v. National Labor Relations Board, App.D.C., 110 F.2d 29; National Labor Relations Board v. Oregon Worsted Co., 9 Cir., 94 F.2d 671. A decree will be entered enforcing in full the order of the ...