National Labor Relations Board v. Whittenberg, 12021.

• Citation: 165 F.2d 102
• Decision Date: 30 December 1947
• Docket Number: No. 12021.,12021.
• Parties: NATIONAL LABOR RELATIONS BOARD v. WHITTENBERG et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

165 F.2d 102 (1947)

NATIONAL LABOR RELATIONS BOARD v. WHITTENBERG et al.

No. 12021.

Circuit Court of Appeals, Fifth Circuit.

December 30, 1947.

T. Lowry Whittaker, Chief Law Officer, 10th Region, of Atlanta, Ga., and A. Norman Somers, Associate Gen. Counsel, National Labor Relations Board, of Washington, D. C., for petitioner.

Scott Toothaker, of Mission, Tex., for respondents.

Before HUTCHESON, HOLMES, and LEE, Circuit Judges.

LEE, Circuit Judge.

This case is before the court on petition of the National Labor Relations Board for enforcement of its order issued against respondent on April 2, 1946. On March 10, 1945, the Board, upon charges filed by Local 35, Texas Fruit and Vegetable Workers Union, issued its complaint against respondent, alleging that it was engaged in various unfair labor practices in violation of the National Labor Relations Act.¹ Thereafter, in March, 1945, the Board held a hearing on the complaint where all parties were represented by counsel. Following the conclusion of the hearing, the stenographic notes taken by the official reporter at the hearing and the exhibits introduced in evidence were either lost by or stolen from the reporter. As a consequence, the trial examiner who presided at the hearing was unable to issue an intermediate report. After diligent but fruitless search had been made for the missing notes and exhibits, the Board's chief trial examiner issued an order directing that the hearing be reopened for the purpose of conducting a further hearing upon the issues framed by the complaint and other pleadings. On April 27, 1945, pursuant to notice, a hearing de novo was held on the matter in issue in the instant proceedings. All parties were represented at the hearing, participated in it, and were afforded full opportunity to be heard. The trial examiner then issued his intermediate report, and thereafter the Board issued its decision and order, adopting with slight modifications the intermediate report. The order is based on findings that respondent, in violation of sections 158(1) and (3) of the National Labor Relations Act,² discriminatorily discharged employee Harvey Anderson because of his union activity and interrogated employees as to their union membership, warned them against joining the union and threatened to discharge them if they did so. The order requires respondent to cease and desist from its unfair labor practices, to offer Anderson reinstatement to his former, or equal, position, with back pay, and to post appropriate notices.

On this appeal the Board argues two points: (1) The Board's findings that respondent has engaged in unfair labor practices within the meaning of sections 158(1) and 158(3) of the National Labor Relations Act are supported by substantial evidence; and (2) the proceedings before the Board were regular and proper.

In its brief respondent argues (1) that the Board's petition for enforcement of its order constitutes a complaint within the meaning of the Labor Management Relations Act of 1947, supra, (Taft-Hartley), and that since the union has not complied with the provisions of that act, section 9(f), (g), and (h), the Board is precluded from proceeding with enforcement of its order; (2) that the Board has no jurisdiction since the second amended charge was not signed or sworn to as required by the regulations of the Board; (3) that the trial examiner exceeded his authority when he allowed a hearing de novo; (4) that the appearance of Charles J. Meske in any capacity was a violation of the Board's regulations; and (5) that the Board's findings of fact were not supported by the evidence.

As to the first jurisdictional point raised by respondent, the Taft-Hartley Act has no application to this case. The changes or amendments made by sections 9(f), (g), and (h) of that act are procedural changes which, according to the well-established rule, are applicable to pending cases only to the extent that the procedural steps dealt with have not yet been taken. Dunlap v. United States, D.C., 43 F.2d 999; Rule 86, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, Bowles v. Strickland, 5 Cir., 151 F.2d 419. The case at bar is an unfair-labor-practice proceeding with respect to which sections 9(f), (g), and (h), require compliance only as a condition precedent to the issuance of a complaint. The issuance of the complaint in this case is a procedural step which was taken on March 10, 1945, more than two years before the amendments in question were enacted, and it is therefore governed by the law in effect at the time it was taken. Respondent argues, however, that this petition for enforcement is the equivalent of a complaint. If so, of course, the new law would require compliance by the union with sections 9(f), (g), and (h). But the petition for enforcement is merely an application to this Court to give effect by its decree to an order of the Board which became final long prior to the passage of the Taft-Hartley Act; it is not a complaint within the meaning of the invoked sections. Respondent's point is without merit.

Respondent's second challenge to the jurisdiction of the Board on the ground that the second amended charge was not signed or sworn to as required by the rules and regulations of the Board is also without merit. There is general agreement that the original charge was in proper form and that the charge here objected to is a typewritten copy lacking only the written signatures of the union representative and...