National Labor Relations Board v. Air Associates, No. 292.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSWAN, CLARK, and FRANK, Circuit
Citation121 F.2d 586
Decision Date15 October 1941
Docket NumberNo. 292.

121 F.2d 586 (1941)


No. 292.

Circuit Court of Appeals, Second Circuit.

July 9, 1941.

As Amended on Denial of Rehearing October 15, 1941.

121 F.2d 587
121 F.2d 588
Robert B. Watts, Laurence A. Knapp, Ernest A. Gross, Richard C. Barrett, and David Findling, all of Washington, D. C., for petitioner

Scandrett, Tuttle & Chalaire, of New York City (Walter Chalaire Soia Mentschikoff, both of New York City, of counsel), for respondent.

Before SWAN, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

In answer to a petition by the National Labor Relations Board for enforcement of its order against respondent, the latter asserts that it was denied a fair and impartial hearing, that the Board's findings of fact are not based on substantial evidence, and that changed circumstances have made enforcement of the Board's order unjust and inequitable.

Respondent rests its contention as to the absence of a fair and impartial hearing on the alleged bias of the trial examiner. That would be a serious matter, if there was such bias and (equally important) if it affected, or probably affected, the Board's findings and order. Cf. Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, 304, 305, 57 S.Ct. 724, 81 L.Ed. 1093; Tumey v. Ohio, 273 U.S. 510, 523, 535, 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. For a fair trial is a civil right of "peculiar sacredness"1 guaranteed by the Constitution. It is for that reason that, if the misconduct of a trial judge, in the presence of a jury, probably affected the jury in such manner as to have influenced their verdict, judgment must be reversed. United States v. Minuse, 2 Cir., 1940, 114 F.2d 36, 39; Mason v. United States, 2 Cir., 1933, 63 F.2d 791, 793.

If there were equivalent factors here, the record would be contaminated and unquestionably the Board could not lawfully act on it. But here the fact-finder was the Board, not the trial examiner. Even if bias against respondent was manifested in the examiner's intermediate report and recommendations, that bias became immaterial, since the Board ignored that report and relied solely and directly on the evidence in the record. The Board, patently, is not in the same position with respect to its examiner as is the jury with respect to the trial judge; no one would say that the judgment of a trial judge, sitting without a jury, should be reversed because of inflammatory remarks addressed to him by a lawyer for one of the parties to the suit; the Board must be presumed to be capable of resisting any unfair attitudes expressed to it by its subordinates, including its attorneys or the trial examiner, cf. N.L.R.B. v. Ford Motor Company, 9 Cir., 1941, 118 F.2d 766. That the Board disregarded the examiner's report serves to answer respondent's objections concerning bias, if any, disclosed in his report.

Respondent, however, urges that the examiner was biassed and that, accordingly, the testimony taken before him, and on which the Board directly relied in making its own findings, was incurably infected. In making this point, respondent apparently admits that, as the Board found, the examiner committed no prejudicial error; yet, it is contended, the examiner's

121 F.2d 589
bias alone, although not resulting in such error, renders the whole proceeding an unconstitutional invasion of respondent's rights. The evidence which respondent has painfully gleaned from a long record does not make out a convincing case of the examiner's bias. Even assuming, however, that it were proved, either by the record or otherwise, that the examiner was biassed against respondent, we would find no reason, merely because of that fact, for upsetting the Board's order, since respondent does not assert that the examiner committed any error in the admission or exclusion of evidence, nor is there any indication that he conducted himself in a manner which either was likely to intimidate any of the witnesses or to prevent any of them from giving any relevant testimony as to what they believed to be the facts. An examination of the record shows no such unfairness as to constitute a denial of due process. Cf. Cupples Co. Manufacturers v. N. L. R. B., 8 Cir., 1939, 106 F.2d 100, 113. Where such unfairness is charged, "each decision must be based upon the peculiar facts of the case involved and the kind and degree of the impropriety * * *"; N. L. R. B. v. Ford Motor Co., 6 Cir., 1940, 114 F.2d 905, 9092; cf. Press Co., Inc., v. N. L. R. B., App.D.C.1940, 118 F.2d 937. There was, at most, error without prejudice; such error is harmless and no ground for reversal.3 A harmless error is a blank cartridge

Respondent argues, by analogy, that, since due process historically required that a decision of a jury selected by a biassed sheriff be disregarded, even without direct proof that the jury itself was prejudiced, the Board is required to reject testimony taken by an examiner who is biassed, even without a showing that the bias affected the record. The historical material gathered by respondent is interesting, but does not help its case: The sheriff picked those from whom the jury was selected; and, as a jury, made up of men hand-picked by a prejudiced sheriff, might well be untrustworthy, it was not inappropriate to presume, even conclusively, that such a jury would be unfair and, therefore, that the sheriff's prejudice would yield harmful results. Respondent refers to a case in Elizabeth's reign in which, as respondent puts it, "the mere fact that the sheriff and one of the coroners and one of the parties to the litigation wore the same livery was held sufficient to justify granting the venire to another coroner in order to prevent voiding the judgment". The use of the word "mere" is surprising. For in the word "livery" are compressed several hundred years of English judicial and "constitutional" history: Many a powerful baronial magnate would assemble a band of faithful retainers; he supplied them with coats, known as "liveries," marked with his distinctive badge; he used his liveried adherents for divers purposes, including that of tempering with and coercing juries; that evil persisted, despite royal efforts to suppress it, during the 14th, 15th and 16th centuries.4 If, then, a sheriff

121 F.2d 590
"wore the same livery" as one of the parties to the litigation, that was the equivalent of the situation which would exist today if Al Capone were involved in a law suit and the jury commissioner were one of Capone's gang. There is nothing similar here: The prejudiced sheriff selected the persons from whom the jury would be chosen; but the trial examiner is selected by and does not select the members of the Board — and they are the fact-finders and decision-makers here

It is conceivable that, even in a trial before a judge without a jury, the conduct of the judge might be so unfair as to give rise to sufficient inference of a prejudice in his findings to warrant a reversal of a judgment entered by him. But here the trial examiner made no decision and his tentative findings were disregarded. He was like a master, appointed by a court, merely to take and report testimony; but, absent a showing of harmful error in the admission or exclusion of evidence or of intimidation of witnesses, or the like, no court would order a retaking of the testimony heard before such a master solely because he was biassed, for, in such circumstances, his bias could have no practical hurtful consequences on the ultimate outcome of the trial.

And so here. That an officer, even if his only function is to take and report evidence, should conduct himself in a seemly manner is highly desirable; if, deplorably, he does not do so, he renders a serious disservice to the governmental agency which he serves, and he should, at a minimum, be severely admonished by those who employed him. But his bad manners, if they have no effect on the testimony, surely do not require the delays and expense which would be involved in its retaking. Courts do not sit to conduct a school of etiquette or to censure...

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