On Petition to Review and Set Aside and on Request for Enforcement of an Order of the National Labor Relations Board.
Before JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.
This case bids fair for the unenviable distinction of being the Jarndyce v. Jarndyce of labor law. The complaint was issued November 6, 1937. The case has been once before this Court.*fn1 It was remanded to the Board and is now again before the Court on petition by Berkshire to review and set aside the Board's order, and on petition by the Board for enforcement. Berkshire makes much of the long interval which has elapsed and urges that it has thereby been denied speedy justice and due process of law. The delay is greatly to be regretted and is contrary to the express general policy of the Act. It is to be noted, however, that the case has been vigorously contested at every stage of the proceedings by Berkshire. No criticism is implied of counsel for pressing a client's position in every stage of litigation. That is what he is retained for. But contested litigation obviously takes more time than the decision of a matter on undisputed facts or findings. Berkshire, however, makes no charge that the delay was intentional or designed to prejudice its position. Nor does it show that the delay was prejudicial except insofar as it affects the back pay order of the Board, a matter to be discussed more fully later. The delay occasioned by protracted hearings involving weeks of testimony, hundreds of pages of record and innumerable motions, exceptions and the like, and one appeal, cannot be called lack of due process of law.
Other procedural points raised by Berkshire will be considered before turning to questions concerning proof of unfair labor practices. When the case was here before it was ordered remanded to the Labor Board for that body to consider whether there was evidence that one of its members had shown such bias that it was improper for him to participate in the decision. Shortly after the Court's order, the term of that member expired. Upon the petition of the Board the Court resettled its order permitting the Board's former order to be set aside and the whole case to be remanded for further argument, reconsideration, findings and order. The Board, at its further hearing and pursuant to the order of this Court, did not go into the question of the bias of former member Smith. Berkshire complains thereof. We think there is no merit in this complaint. The old order was set aside, the case was reconsidered in its entirety by the new Board, two members of which had not been on the Board at the time of the first order. We see no reason, therefore, why attention should have been deflected from this proceeding to examine the alleged bias of the former member.
Berkshire urges error in failing to permit it to adduce certain other matters including some interoffice communications among Board members, testimony disclosed by Congressional investigation, and so forth. These points were considered individually in our former opinion and the discussion need not be repeated again here.
Prior to the second hearing Berkshire filed an application for a subpoena asking for the production of certain documents "and such portions of the minutes of American Federation of Hosiery Workers, Branch No. 10, as are relevant to the allegation in the Board's complaint that said strike was caused by unfair labor practices on the part of the respondent." Berkshire now complains that the Union was not required to produce all of its minutes, pointing out that only those portions of the minutes which witness Adams, who produced the records, thought relevant to the cause of the strike were put in evidence. It may be noted that the terms of the subpoena required only those portions of minutes to be produced. Berkshire's complaint narrows down to the fact that it was not allowed to go over all the minutes to find stated therein that the cause of the strike was economic and that the trial examiner did not do this. However, the Board did find that some of the motivating factors of the strike were economic in nature. Fundamentally, unfair labor practices have their roots in economic strife between employer and employees. Where the causes contributing to a strike consist of unfair labor practices and employee desires for wage betterments, the latter should not excuse the employer from the legal consequences that flow from its conduct which transcends the permissible bounds under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.
Complaint is also made that some of the papers brought in response to the subpoena were carbon copies that were not signed. Witness Adams who produced them said, as to the copies, that he did not know where the originals were. Berkshire maintains that it was error to admit the papers under this set of facts for it is not shown that the originals were lost or destroyed, the only condition under which copies would be admissible under the best evidence rule. We have no quarrel with the best evidence rule as Berkshire states it and as worked out by the decisions. But the statute says that the technical rules of evidence shall not be controlling, § 10(b), 29 U.S.C.A. § 160(b). We think that the absence of originals was accounted for well enough and, in any event, the error, if there was error, is harmless, for the reasons stated in the preceding paragraph.
Berkshire also complains of the conduct of the trial examiner at the hearing. Insofar as those objections are based upon the examiner's alleged willingness to admit irrelevant testimony their consideration need not add greatly to the length of the opinion. As this Court pointed out in National Labor Relations Board v. Botany Worsted Mills, 1943, 3 Cir., 133 F.2d 876, certiorari denied 1943, 319 U.S. 751, 63 S. Ct. 1164, 87 L. Ed. 1705, responsibility for the decision and order in one of these cases is that of the Board, not the trial examiner. If the Board bottoms its decision on irrelevant or otherwise improper testimony that is subject to review by the court when the question comes up on enforcement proceedings. But the admission of irrelevant testimony, otherwise harmless, while certainly not to be commended because it wastes the time of the litigants and clutters up the record, is not a reason for refusing a petition to enforce an order supported by adequate, competent testimony. So, even if it were true, that the trial examiner let in irrelevant testimony offered by the Board and confined the employer to proof relating to the case, the result is bad trial practice but not lack of due process of law if the ultimate decree is backed by substantial evidence. The same is true of complaints that a hearing room audience became boisterous or that the trial examiner permitted "incitative" speeches by counsel to please the audience.It is, of course, part of the duty of a trial examiner or a trial judge to insure decorum at a hearing. But a Labor Board hearing is not a jury case and what might be sufficient courtroom disturbance to be grounds for mistrial in a jury case is not necessarily a basis for setting aside an order based on the record in this type of hearing. An inspection of the record, however, discloses that there really was substantially nothing to complain of in the hearing in this case.Any disturbance in the smoothness of the hearing prior to the first appeal to this Court came because all the lawyers involved seemed to disregard the presence of the trial examiner and conducted their own arguments among themselves. Had the examiner asserted himself a little more vigorously, the stenographic record would have been shorter. But that is not a matter of which Berkshire is in a justifiable position to complain. Also without merit is the contention that error was committed in allowing counsel for the Board and Branch 10 to examine four witnesses called by Berkshire as for cross-examination.
Since the complaint of the conduct of the hearing was urged with some earnestness at both the first and the second argument of this case we have gone back over the record and read, consecutively, a great portion of the transcribed notes of the hearing. We do not find, through this laborious examination, any evidence of an atmosphere which was so unfavorable to Berkshire as injuriously to affect its rights. On the contrary, without indicating an agreement with the trial examiner in all the rulings, we think his attitude was fair and impartial to both sides under conditions which it is understatement to describe as difficult.
The Company attacks the findings made by the Board. We shall review those findings but in so doing must adhere to certain well defined criteria. The findings must be sustained if they are supported by substantial evidence. The credibility of witnesses was for the Board to determine. And, where one of several inferences may be drawn from the evidence, the one deduced by the Board must prevail.We turn then to the evidence and findings.
The Board found that the Company has dominated and interfered with the administration of the Association,*fn2 contributed to its support and has thus interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in § 7 of the National Labor Relations Act.*fn2
The relevant factual history of this case dates back to 1933.*fn3 There was no labor organization at Berkshire's plant prior to the National Industry Recovery Act. Immediately preceding the Act there was an unsuccessful attempt by Company officials and supervisory employees to establish a plan of employee representation presented by Berkshire's purchasing agent. The plan was rejected at the various meetings of employees called to hear and discuss it. Shortly afterwards there was a strike at the plant which was settled by agreement of the hosiery manufacturers of Reading to arrange an election to determine collective bargaining representatives. Union candidates*fn4 won the election but Berkshire did not recognize the Union and defeated nonunion candidates were subsequently to play a prominent part in the Association later formed at Berkshire. The first meeting of the Association was held shortly after the strike. While it does not appear clearly from the evidence that the Association was conceived and sponsored by Berkshire, the latter's abortive attempt to form an employee's association prior to the 1933 strike, the character of the Association and the events which followed after its formation certainly permit the inference drawn by the Board that Berkshire's ...