National Labor Relations Board v. Prettyman

• Decision Date: 13 February 1941
• Docket Number: No. 8547.,8547.
• Citation: 117 F.2d 786
• Parties: NATIONAL LABOR RELATIONS BOARD v. PRETTYMAN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

117 F.2d 786 (1941)

NATIONAL LABOR RELATIONS BOARD v. PRETTYMAN et al.

No. 8547.

Circuit Court of Appeals, Sixth Circuit.

February 13, 1941.

COPYRIGHT MATERIAL OMITTED

Richard C. Barrett, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and Robert Kramer, all of Washington, D. C., on the brief), for petitioner.

Arthur J. Wiltse, of Ann Arbor, Mich., for respondents.

Before HICKS, SIMONS and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This is a proceeding by the National Labor Relations Board to enforce its order issued pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., against respondents, Horace G. Prettyman and Arthur J. Wiltse, co-partners, doing business as the Ann Arbor Press.

After charges were filed against respondents by the International Typographical Union, a labor organization, the petitioner issued a complaint against respondents on April 23, 1938, alleging, in addition to jurisdictional matters, that since September 1, 1937, they had engaged in unfair labor practices within the meaning of Section 8(1) (2) (3) and (5) of the Act.

Respondents answered and denied the jurisdiction of the Board and all allegations of the complaint. An examiner was designated and a hearing was had in which respondents participated and at which proof was heard. The Trial Examiner filed his intermediate report containing findings of fact and conclusions of law supporting the allegations of the complaint. Respondents filed exceptions which, after hearing, were overruled by the Board and a finding made that respondents had violated Section 8(1) (2) (3) (5) and Section 2(6) (7) of the Act. The Board issued a cease and desist order requiring the respondents (a) to withdraw all recognition from and completely disestablish an Association of its employees, (b) to bargain collectively with the International Typographical Union as a representative of its employees, (c) upon application, to reinstate their employees who went on strike and those who had been discriminatorily discharged for union activities, placing those for whom employment was not immediately available upon a preferential list, (d) to make whole the employees discriminated against for union activity for any loss of pay they may have suffered by reason of such discrimination and to make whole for loss of pay any strikers who, five days after application, were not reinstated or placed upon a preferential list, and (e) to post appropriate notices.

Petitioner seeks to have the cease and desist order enforced.

Respondents resist enforcement on the following grounds: (1) That their business was intrastate and did not directly affect commerce among the states; (2) That the Board's hearings were arbitrary and they were denied due process of law; (3) That the Board based its order in part on incompetent evidence and that its order is not supported by substantial evidence; (4) The Board erroneously denied the complainant's motion to dismiss the proceeding; (5) That they had settled their controversy with the complainants before the Board entered its order.

Respondents are co-partners, operating a commercial printing establishment with their only plant and offices at Ann Arbor, Michigan. They annually purchase about $5,000 worth of repair parts for their plant, approximately 66 2/3; percent or $3,333 worth of which are purchased outside Michigan. During 1937, respondents acquired $163,813.47 worth of raw materials, $26,487.52 or 16 percent of which were imported from points outside Michigan. During 1937, respondents produced $400,631.90 worth of printed material, of which amount, four percent, or $17,945.97, was sent to customers outside of the state. About $150,000 of the total $400,000 production consisted of various periodicals, most of which were addressed by respondents and delivered by them to the Ann Arbor post office, the postage being paid by customers of respondents. In most cases the periodicals were mailed out of the state. Respondents also print matter for national manufacturers and dealers such as General Motors Corporation and Nash Kelvinator Corporation. Some of these materials are mailed by respondents to points outside Michigan at the direction of their customers, and some delivered to the customers in the state and by them distributed throughout the country.

Under the Supreme Court's latest pronouncement of constitutional power, the right of Congress to regulate interstate commerce is plenary and extends to all such commerce whether great or small. The amount thereof is of special significance only to the extent that Congress may be taken to have excluded commerce of small volume from its regulatory measure by express provision or fair implication. National Labor Board v. Fainblatt, 306 U.S. 601, 606, 59 S.Ct. 668, 83 L.Ed. 1014; National Labor Board v. Bradford Dyeing Association, 310 U.S. 318, 326, 60 S.Ct. 918, 84 L.Ed. 1226.

Under these cases the respondents' business sufficiently affected interstate commerce to bring it within the National Labor Relations Act. The Board had jurisdiction.

Frank H. Bowen, Regional Director of the National Labor Relations Board for the Seventh Region, which includes the State of Michigan, pursuant to charges filed by the International Typographical Union issued a complaint March 18, 1938, against respondent and issued notice of a hearing at Ann Arbor, Michigan, on March 31, 1938. On March 30, 1938, respondents instituted an action in chancery in the Circuit Court for the County of Washtenaw against Frank H. Bowen, Regional Director for the Seventh Region of the National Labor Relations Board, Harold A. Cranefield, Regional Attorney for the Board, John Doe, Trial Examiner for the Board, Harry H. Reifin and Louis Falstreaux, officers of the International Typographical Union, Local No. 154, and Independent Association of Ann Arbor Press Employees, Inc., seeking to enjoin the defendants officers of the National Labor Relations Board, from holding a hearing on March 31, 1938, or at any other time on the complaint issued against them by the National Labor Relations Board and enjoining defendants Reifin and Falstreaux from interfering with respondents' business by intimidating and coercing employees and former employees into joining International Typographical Union 154, and by making false statements to customers of respondents and false statements of their relations with their employees. They prayed for other relief not material here.

Without notice or hearing on March 30, 1938, the Michigan Court issued an injunction conformable to the prayer of respondents' petition. On April 18, 1938, the National Labor Relations Board by its attorney, Harold A. Cranefield, filed a motion in the State action for the dissolution of the injunction and that the bill of complaint be dismissed. The court requested briefs and took the motions under advisement and on November 22, 1938, entered a decree dissolving the injunction and dismissing the bill of complaint.

The National Labor Relations Board abandoned the proceedings against complainant commenced March 18, 1938, and instituted the present proceedings. The unfair labor practices on which the present complaint is based, were identical with the ones on which the hearing was enjoined by the Michigan Court.

The charges on which petitioner issued its complaint were filed with the Board in Washington, D. C., and notice of a hearing there was mailed to respondents April 25, 1938, and a hearing had from May 2 through May 12, 1938, before a Trial Examiner duly designated by the Board. Petitioner admits that the hearing was had in Washington solely to avoid interference by the State Courts of Michigan.

On April 30, 1938, respondents moved the Board to abandon the hearing in Washington on the ground that their residences and place of business and where the controversy arose with their employees was in the city of Ann Arbor, approximately 700 miles from Washington and that the trial in Washington would place an unreasonable burden on them in bringing witnesses to the hearing and that such a proceeding was unreasonable and arbitrary and denial of due process. They further claimed they were financially unable to make a proper defense to the matters set forth in the complaint at such a great distance from their residences and place of business. They further stated they were compelled to answer the complaint within five days and be prepared to go into a trial of the issues within nine days. Their motion was supported by the affidavit of the respondent, Arthur J. Wiltse. The motion was denied.

Respondents insist that the present hearing did not comport with the standards of fairness inherent in procedural due process for the reason that their place of business, all of their records and employees and all of their witnesses lived six hundred and fifty miles from Washington and that all of their employees who had any knowledge of the matters inquired about were their executives and to have transported them to Washington would have required the closing of their plant for ten days and imposed on them a heavy financial burden.

No particular form of procedure is required to constitute due process in administrative hearings. Its requirement must be measured in the light and purpose of such hearings. Under the National Labor Relations Act, hearings are not of an executive character purely, but require the...