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a motion for judgment notwithstanding the verdict to the trial judge in order that he might exercise his discretionary power to determine whether there should be such a judgment, a dismissal or a new trial. In the absence of such a motion, we think the appellate court was without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.

It has been suggested that the petitioner could have presented affidavits to the Circuit Court of Appeals to support his claim for a new trial, and that that court could thereupon have remanded the question to the District Court to pass upon it. Such a circuitous method of determining the question cannot be approved. For Rule 50 (b) specifically prescribes a period of ten days for making a motion for judgment notwithstanding the verdict. Yet the method here suggested would enable litigants to extend indefinitely the prescribed ten-day period simply by adoption of the expedient of an appeal. Furthermore, it would present the question initially to the appellate court when the primary discretionary responsibility for its decision rests on the District Court.

Reversed.

6 This general suggestion was made by the Advisory Committee on Rules for Civil Procedure in its recent recommendation to us for modification of Rule 50 (b). The Committee said: "Even on appeal, if the appellate court sets aside his verdict, he may present to the appellate court affidavits to support his claim to a new trial, and the appellate court has power to receive the affidavits and remand the case to the trial court with instructions to consider the affidavits and determine whether a new trial should be allowed.” Report of Proposed Amendments, supra, 66.

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Syllabus.

NATIONAL LABOR RELATIONS BOARD v.

DONNELLY GARMENT CO. ET AL.

NO. 38.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR

THE EIGHTH CIRCUIT.*

Argued October 16, 1946.-Decided March 3, 1947.

Before the National Labor Relations Board a union charged an em

ployer with unfair labor practices, including the 'formation and domination of a plant union to forestall the efforts of the complaining union to organize the employees. The Trial Examiner rejected an offer by the employer to prove through the testimony of 1,200 employees that they had not been coerced to join the plant union and excluded evidence that the formation of the plant union followed strike threats and violence by the complaining union against other plants. The Board ordered disestablishment of the plant union. The Circuit Court of Appeals found no basis for setting aside the proceedings as unfair on the ground that either the Examiner or the Board was biased, held that the Board properly limited the evidence to issues raised by the complaint, and found no impropriety in the exclusion of evidence offered to prove misconduct on the part of the complaining union. However, it found that the employer had been denied a fair hearing in not being allowed to present testimony of its employees that the plant union was truly independent and that they had joined it voluntarily. Accordingly, it denied enforcement of the order and remanded the case to the Board "for further proceedings not inconsistent with the opinion of this Court.” The Board denied the employer's application for a new examiner and assigned the case to the original examiner for further hearing. This time the Examiner heard eleven of the 1,200 employees named in the offer of proof rejected in the earlier proceeding and allowed the president of the employer corporation to testify fully; but excluded all evidence of events subsequent to the termination of the first hearing. Upon findings and recommendations substantially the same as previously made, the Board issued virtually the same order. The

*Together with No. 39, International Ladies' Garment Workers' Union v. Donnelly Garment Co. et al., also on certiorari to the same Court.

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Circuit Court of Appeals denied enforcement "for want of due process in the proceedings upon which the order is based." Held:

1. Upon the record, there was no want of due process in the Board's proceedings. Pp. 225–238.

2. In view of the nature of the administrative process with which the Board is entrusted and in the light of the statement in the Court's opinion in the first review that "the least that the Board can do ... is ... to accord the petitioners an opportunity to introduce all of the competent and material evidence which was rejected by the Trial Examiner; and to receive and consider such evidence together with all other competent and material evidence in the record before making new findings and a new order," the remand on the first review did not require a proceeding de novo before the Board nor a rehearing on issues as to which the original hearing was adequate. Pp. 225–228.

3. Upon examination of the whole record, it can not be said that the Board disregarded the ruling of the Circuit Court of Appeals that the Board should consider testimony of employees to the effect that they voluntarily organized and joined the plant union and that the union's affairs were uninfluenced by the employer. Pp. 222-231.

4. Discriminatory treatment by the Board is not established by the fact that evidence as to the effect of violence by an outside union on the formation of the plant union was limited to events within six months of the formation of the plant union, whereas evidence of coercion by the employer in the formation of the plant union was admitted though related to a period two years prior to the formation of the plant union. Pp. 231-232.

5. The Board was not bound on the second hearing to admit evidence of the complaining union's misconduct, inasmuch as there already was evidence in the record to apprise the Board of alleged misconduct by the complaining union if on that score the Board chose not to entertain charges of unfair labor practices against the employer. Labor Board v. Indiana & Michigan Electric Co., 318 U.S. 9, distinguished. Pp. 233-236.

6. The power of the Circuit Court of Appeals under $ 10 (e) to require the Board to take additional evidence can not be employed to enlarge the statutory scope of judicial review. Pp. 234-235.

7. The Board's denial of the employer's application for the designation of a new examiner for the hearing on the remand was not improper. Pp. 236-237.

219

Upinion of the Court.

8. The Circuit Court of Appeals not having considered the question of the sufficiency of the evidence to sustain the findings on which the order of the Board was based, the case is remanded to

that court for determination of this issue. Pp. 237–238. 151 F.2d 854, reversed.

A cease-and-desist order of the National Labor Relations Board, 21 N. L. R. B. 164, against an employer was denied enforcement by the Circuit Court of Appeals, which remanded the case to the Board. 123 F. 2d 215. A second order of the Board, issued after a further hearing, 50 N. L. R. B. 241, was also denied enforcement. 151 F. 2d 854. On petitions of the Board and the complaining union, this Court granted certiorari. 327 U. S. 775. Reversed and remanded, p. 238.

Ruth Weyand argued the cause for the National Labor Relations Board. With her on the brief were Solicitor General McGrath, Stanley M. Silverberg, Gerhard P. Van Arkel, Morris P. Glushien and Fannie M. Boyls.

Clif Langsdale argued the cause for the International Ladies' Garment Workers' Union. With him on the brief was Clyde Taylor.

Robert J. Ingraham argued the cause for the Donnelly Garment Co., respondent. With him on the brief was Burr S. Stottle.

Frank E. Tyler argued the cause and filed a brief for the Donnelly Garment Workers' Union, respondent.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

On March 6, 1940, the National Labor Relations Board, on finding that the Donnelly Garment Company had engaged in labor practices condemned as "unfair” by the Opinion of the Court.

330 U.S.

Wagner Act, issued an order against the Company “to effectuate the policies” of the Act. The Circuit Court of Appeals for the Eighth Circuit denied enforcement of the order and remanded the case to the Board. 123 F. 2d 215. After carrying out what it conceived to be the directions of the Court, the Board again found against the Company. The Court below denied enforcement of the Board's second order "for want of due process in the proceedings upon which the order is based.” 151 F. 2d 854, 875. The correctness of this ruling is now before us, for we brought the case here, 327 U. S. 775, to rule on important issues in the administration of the Wagner Act. This protracted litigation has given rise to a swarm of questions. In view of the fact that the case comes to us after it has been twice before the Board and three times before the court below, on a record of thirteen volumes with a total of more than 5000 pages, even an earnest attempt at compactness cannot avoid a somewhat extended opinion.

The case presents limited legal phases of one of those bitter, unedifying conflicts with which American industrial history is unfortunately replete. For other litigation growing out of this strife, see 20 F. Supp. 767; 21°F. Supp. 807; 304 U. S. 243; 23 F. Supp. 998; 99 F. 2d 309; 119 F. 2d 892; 121 F. 2d 561; 47 F. Supp. 61; 47 F. Supp. 65; 47 F. Supp. 67; 55 F. Supp. 572; 55 F. Supp. 587; 147 F. 2d 246; 154 F. 2d 38. It has its roots in a campaign by the International Ladies' Garment Workers' Union (hereafter designated as International) to unionize the women's garment industry in Kansas City, Missouri. Because of its importance, the Donnelly Garment Company (to be called Company for short) became the particular target of these unionizing efforts. These continued with varying intensity over a period of years but met with little success among the Company's employees.

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