Sardis Luggage Co. v. National Labor Rel. Bd.

Decision Date05 June 1956
Docket NumberNo. 15905.,15905.
Citation234 F.2d 190
PartiesSARDIS LUGGAGE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Samuel Lang, Sumter D. Marks, Jr., New Orleans, La., for petitioner.

David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Rosanna A. Blake, Atty., Washington, D. C., Theophil C. Kammholz, General Counsel, Samuel M. Singer, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

This is a petition by the company to set aside in part an N.L.R.B. order directing it to cease and desist from certain unfair labor practices and to reinstate four employees found to have been discharged or not recalled to work because of their union activities. The company does not oppose the requirement in the order that it cease and desist from interrogating and threatening its employees. However, it asserts that the direction that it reinstate the four employees in question should be set aside because of the Trial Examiner's bias in conducting the hearing and weighing the evidence, and lack of support for his findings of discrimination on the record considered as a whole. In its answer, the N.L.R.B. prays enforcement of the entire order.

The charge of bias in the conduct of the hearing is supported by reference to certain limitations placed upon petitioner's counsel in his cross-examination of witnesses, use of inadmissible evidence offered by the Board's counsel, and limitations placed on the Board's counsel during the direct examination of a witness, when the witness began giving testimony favorable to the petitioner. Thus, at one point the Trial Examiner refused to allow the use of a leading question on cross-examination, and at another time he so limited cross-examination of a witness as to forbid it altogether, practically speaking. He halted the examination of another witness, by the Board's counsel, with the comment, "I don't care to hear any more." Finally, he admitted the conclusory and hearsay statement by a witness that an employee involved here had been fired instead of his having quit, as is contended, and used it as a basis for a finding that in fact the employee was fired.

The Act requires that the rules of evidence be followed in Board hearings only "so far as practicable". 29 U.S.C.A. § 160(b). Therefore, departure from the rules of evidence is not erroneous in itself, and without more appearing, is no proof of bias on the part of the hearing officer. N.L.R.B. v. Local Union 1418, 5 Cir., 212 F.2d 846, 46 A. L.R.2d 1118; N.L.R.B. v. East Texas Steel Castings Co., 5 Cir., 211 F.2d 813. In order for such an allegation to be sustained

"It must appear * * * that the proceedings were characterized by fell expedition or determined purpose to reach a predetermined end, or were attended with suppressive and exclusionary rulings and actions, designed to prevent and preventing a fair hearing." Continental Box Co. v. N.L.R.B., 5 Cir., 113 F.2d 93, 96.

A reading of the record shows that this was not the case here. The Trial Examiner, in forbidding the use of a leading question on cross-examination "at this point," was only following the practice, which he regularly adhered to, of allowing the witness to give his testimony regarding an occurrence for the first time with as little interruption as possible, before subjecting him to questions, either on direct or cross-examination.1 Thereafter, the use of leading questions on cross-examination was allowed, and the question here excluded was later asked by petitioner's counsel and answered by the witness.

The cross-examination of Richard K. Holder was severely limited when, after having been put on the stand by the Board, he was able to remember little of relevance to the case. On cross-examination, petitioner's counsel attempted to develop evidence favorable to the company on the issue of surveillance, which was later resolved by the Trial Examiner in the company's favor. The Trial Examiner ruled that since the direct examination revealed nothing pertinent to the case, the petitioner would have to adopt the witness as its own in order to elicit the testimony sought. The petitioner points out that thereafter, the Trial Examiner cited Holder's testimony in the Intermediate Report, an apparent inconsistency with the previous ruling that it was irrelevant. However, the citation was only a passing reference in footnote, having little, if any, bearing on the issues under consideration here.

We cannot discern in what respect the petitioner suffered any real prejudice because of this ruling, or by the limitations placed on the Board's counsel in his examination of Victor Tidwell. Either of the witnesses might have been called by the petitioner in its defense; therefore, it cannot be argued that any important body of evidence was excluded. Moreover, the suggestion that the rulings demonstrate bias, if they did not result in prejudice, asks us to probe too far, we think, into the subjective intentions of the hearing officer. Finally, the use of the single conclusory statement, "Jack * * * was fired," in support of a finding of fact, does not indicate, any more than do the above grievances, a "determined purpose to reach a predetermined end."

The same is true of the Trial Examiner's findings of credibility. The petitioner states that while the evidence of bias at the hearing created only a suspicion of partiality, it was "fully revealed" when the Intermediate Report appeared. The revelation, however, was largely in the fact that all important issues of credibility had been resolved in the Board's favor. It has consistently been held that this is no proof of bias, unless the credited evidence is inherently unworthy of belief or the discredited evidence irrefutably true. N.L.R.B. v. Pittsburgh Steamship Co., 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602; Lloyd A. Fry Roofing Co. v. N.L.R.B., 1 Cir., 222 F.2d 938; Coca-Cola Bottling Co. v. N.L. R.B., 8 Cir., 195 F.2d 955; N.L.R.B. v. Houston & North Texas Motor Freight Lines, 5 Cir., 193 F.2d 394; N.L.R.B. v. Robbins Tire & Rubber Co., 5 Cir., 161 F.2d 798. As will be observed from the discussion of the evidence which follows, none of the rejected evidence had this quality of inherent veracity and none of the credited evidence carried the mark of obvious falsehood.

The unfair labor practices found to have been committed began a few months after the petitioner, a manufacturer of low-priced luggage, opened a new plant in Sardis, Mississippi. Production started on May 11, 1953, and by August, organizational activities by the United Furniture Workers, CIO, were underway. There is evidence that shortly thereafter the company, through its foremen, its plant superintendent, and even its president, began a campaign of consistent interrogation of employees regarding their sympathies and activities in connection with the union movement. This was accompanied by threats to close the plant if it was organized, and to discover which employees favored unionism and to "get them all" or "make it hard" on them. The petitioner, while not conceding that these unfair labor practices were committed, admits that there is substantial evidence in the record to sustain the Board's findings that the company's agents in fact engaged in all of these prohibited activities. It asserts, however, that there is a lack of substantial evidence to support the findings that it also discharged three employees and failed to recall another, because of their prominence in the union movement.

The petitioner contends that two of the alleged victims Mr. and Mrs. James Childress, were never discharged at all, but in fact quit. This is vigorously denied by both employees, and their testimony regarding the circumstances of their termination is irreconcilably conflicting with that of the petitioner's plant superintendent, Richard...

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  • Fairbank v. Hardin
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 17, 1970
    ...evidence approached the incredible and none of it had an earmark of inherent veracity as noted in Sardis Luggage Co. v. National Labor Relations Board, 234 F.2d 190, 193 (5th Cir. 1956). We are governed by the rule that a Hearing Examiner has wide latitude as to all phases of the conduct of......
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    • July 24, 1963
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