*1 fund, erty wheth- suc- legal or to the beneficiaries their or in said of er said trust interest trust his re- condition, so far terminated should be cessors in interest. That concerned, have manifestly as the Custodian spect to interests therein Property Cus- exists testa- at the time. If the acquired been the Alien trix’s have language was not intended to todian.” this matter significance, literal then the time complaint at the shows that would of in- for the determination be one property from received trustees had tention in light of extraneous circum- court, completion of probate on the stances, attempted and it not to be could estate, they of the decedent’s administration judgment reached on the on motion qualified in the Circuit had as trustees pleadings, such as the Custodian has done. Circuit, Law- the 8th Court of rence Judicial Hence, might even if the trial court have Dakota, a court County, state South jurisdiction, had interfering without equitable jurisdiction, had general of prerogative, state court enter declara- estate administering the trust since tory that, judgment vest- effect on and control under the direction ing of the beneficial Ger- interests concedes here he The Custodian court. Custodian, man nationals in the the testa- the fed- not an order from was eral entitled to purpose trix’s demanded, providing postpone- for a court, his as ment of distribution to longer them was no deliver to directing the trustees “to being served a continuation of the trust corpus accumulated plaintiff entire (Cf. Restatement, Trusts, on 3 Scott § Ger- constituting income the shares of said Trusts, 337; South Dakota § Code He admits now nationals.” man 59.0215), and that the Custodian there- proper federal for the would not have been fore was entitled to have the trust terminat- court, payment-decree against trus- ed as interest, his adjudication such an tees, possession, to oust the state court’s pleadings on the would now seem be le- accounting right. control tend, “We do gally academic judicially unnecessary. however,” brief, says “that in his he jurisdiction to On the situation, the federal district court has circumstances appeal have determined will accordingly determine and should be dismissed. testamentary postponing provision for ‘ces- until distribution of the trust fund France, Eng- sation of hostilities between inoperative Germany’ to the land thirteen-eighteenths in the trust interest property which has vested the Alien Property Custodian.” What the Custodian therefore has accomplish by taking appeal NATIONAL LABOR BOARD RELATIONS declaratory judgment obtain v. NATIONAL BROADCASTING that, as to his interest in effect undivided Inc., CO., et al. assets, have the the trust he was entitled to No. 368. terminated before trust the “cessation France, England between hostilities Appeals, Second Circuit. Court But, plead- Germany.” on the face July 27, 1945. go far can ings, which is as as we judgment, Custodian’s motion controversy seem to have would question or appeal, taking of the since the moot become peace terms because, though formal have imposed, hostilities between yet been conquered Germany France, England and officially to been declared have herself directed The testatrix ceased. made or said time to be “at distribution practicable.” “As soon thereafter as soon thereafter as practicable” appear language to mean as soon the face cessation of hostilities as it after prop- the trustees to deliver the possible for *2 Rockwell, Alvin Counsel, Gen. Mal- J. Halliday, Counsel, colm F. Gen. Associate Joseph B. Robison and Dominick L. Manoli, Attys., G, Washington, all of D. petitioner. for Cahill, Gordon, Zachry Reindel, & City (John Cahill, New York T. A. L. Ash- Detmar,
by, Jr., Charles all F. of New City, counsel), York for National Broad- Co., Inc. casting Wood, S. New City Franklin York McDonald, (Joseph A. of New York City, counsel), Broadcasting American Company, Inc. Joseph Padway, Washington, D. A. Chicago platter which to include turners C., Friedman, 10; but, York Henry A. of New musicians, Local was the unit of Washing- City, Wilson, Robert A. platter Chicago, outside turners ton, Federation of C., D. American system-wide engineers included in units of *3 companies, Musicians. and technicians. the Since AFM Local the cer- and consented to CLARK, CHASE, SWAN, and Before tification of NABET without in such units Judges. Circuit proceedings, was di- no election further NABET the rected but as was certified SWAN, Judge. bargaining representative of the technical petition upon This case is before us respectively, employees NBC ABC of and of the for of an order Board enforcement Chicago.4 outside brought proceedings consolidated made in NA companies notified Thereafter Act, 29 U.S.C.A. of under they bargain BET with Com- Broadcasting National § AFM respect platter in turners because Inc., NBC, and pany, hereafter called disputed validity of of the certification Inc., Company, Broadcasting American representative platter NABET as of Federa- ABC.1 American hereafter called companies with turners and threatened the Musicians, organization tion of a labor they recognized the bar if it as strikes AFM, party hereafter called employees. gaining representative of such respondent proceedings and is named as a brought January On petition. to the Board’s The order proceedings, charging unfair the section requires ABC, re- be NBC and enforced 8(1) practices in labor and violation collectively Na- spectively, bargain with Act, (5) of the 29 U.S.C.A. 158(1) § Engineers tional Association of Broadcast collectively (5) refusing bargain in and Technicians, organization labor here- Copies NABET. the. after NABET. called were served and notice sequel proceedings The section are party prc> and it became representation proceedings under section to 9, By ceedings. its of March order 29 U.S.C.A. out of arose petition for us on enforce before jurisdictional dispute between ment, its unit deter reaffirmed dispute ri- between NABET. mination, companies had found that in val unions involved work known respects charged, in the Act violated industry “platter broadcasting turn- as NABET bargain and ordered them to ing.” Chicago broadcasting sta- 2. In the upon request. respondent platter companies,3 of the tions respondent companies Neither of dis- many years by turning had for been done putes validity or of the Board’s order of a local musicians who were members union, opposes granting of an order of en- in known as Local while urge, however, They forcement. companies’ plat- stations in cities pro- be so drawn as to enforcement order turning by ter had been done technicians reprisals from economic tect them NABET. Early who members were Respondent AFM va- AFM. attacks the negotiate 1944 AFM undertook con- opposes grant- lidity of the order companies tracts with the which would re- ing of enforcement. con- order It quire employ plat- them to musicians for Board’s determination that tends turning in all their after ter stations June unit, Chicago, appropriate outside initiating the 1944. NABET countered arbitrary employees is representation of technical proceedings. sists hear- After (1) NABET has unlawful because parties ings which all interest represented bargained plat- or participated, the Board determined that the never such, (2) as NABET appropriate bargaining collective turners unit ter
the two turntables
with instructions
studios
times
ords
1 61
placing phonograph
The work of
it for either
N.L.R.B. 21.
called
for “on
fixing
turntable-operators,
the air
lateral or vertical cut
“platter
appearing
used in
speed
playback”,
records
turners,”
broadcasting
accordance
on one of
the face
consists
adjust
some
rec
and,
them,
merged
moving
Our
ABC’s
59 N.L.R.B. No. 97.
Blue
opinion will not differentiate
after
unless it'
record,
with ABC
from
Network
the record has been
stations were
expressly
the turntable.
opening
on December
Co., Inc.,
the fader
so
formerly
states.
which was
played,
SO,
between
control,
owned
1944.
re-
pur-
support
equipment”
And “technical
company-dominated union.
pose
to ad-
“those
leave
contract was
as
the latter contention it asks
defined
Department
Board.
Engineering
facilities of
duce
before the
additional evidence
* * * on
play-
of NBC
used
the air
authoritatively
settled
It
prop-
back.” We think the Board could
ap
of an
determination
the Board’s
erly
rep-
conclude that these contracts did
bargaining
propriate unit
for collective
bargaining
resent
collective
appears to
will not
overturned unless it
platter
turning
though
work
even
arbitrary
capricious
exercise
be an
or
performed
employees who
not ex-
it were
Plate
Pittsburgh
administrative discretion.
clusively engaged
work,
in such
were
National Labor
Glass Co. v.
Board,
platter
Chicago
turners
stations
*4
908,
146,
L.Ed.
61
85
313 U.S.
S.Ct.
companies.
Relations
v.
National Labor
argued
January
It is also
1944 the
that in
134,
Publications,
111,
64 S.
Hearst
companies
entered into valid contracts
1170; Marlin-Rockwell
851,
Ct.
employ
platter
musicians as
turn-
Corporation
National Labor
Chicago
in
ers
stations outside
after June
Board, 2
certiorari
1,1944. But
Board’s
March
decision of
85 L.
313 U.S.
denied
representation
1945 states
at
that
neither
found that
Ed.
The Board
proceeding
argument
as well as
oral
at the
skill is
technical
essential
musical nor
complaint
in
proceeding
admit-
it was
operation
its determi
and made
turntable
alleged agreements
ted that
been
had
bar
collective
nation on the basis of the
subject
made
to the Board’s determination
AFM contends that
gaining history.5
proper representation proceeding
in a
that
NABET
barren
that
of evidence
record
turners,
platter
except
Chicago, would
in
It
platter turners.
bargained for
has ever
represent-
in a
be included
musician’s unit
Chicago
re
that outside
is true
by AFM.
never
ed
This condition was
employees
companies
had no
spondent
have
We conclude that
Board’s unit
met.
plat
exclusively
work of
in the
engaged
arbitrary
capri-
was not
or
determination
work has
turning;
in
cities this
other
ter
supported by
cious but
substantial evi-
engineer in the control
been done
dence.
his
incident
other duties.
room as an
Nevertheless,
NBC
the contracts between
2. The second contention oif
NABET
all contained
since
have
represen
examiner
the trial
at the
that
substantially
provision
as follows:
hearing unlawfully excluded evi
tation
NABET
equipment
domi
that
was
NBC
other than dence
“No
technical
however,
record,
any
union.
scarce
operated by
nated
The
lighting shall be
television
ly justifies
assertion
Employee
that
evidence
than a Technical
person other
rejected.6 Counsel for
NBC,
was offered
as hereinbefore defined.”
operators
subject
the turntable
We conclude that
“In
Board stated:
compelling
this
On
Chicago
in units
outside
be included
circum-
absence of
employees,
in
opinion
of technical
while those
Chi-
stances,
we are
cago
history
in
should be included
units of musi-
bargaining
is determina-
collective
proceeding.
cians.”
The
in this
tive of the
hearing
Sep
representation
operating
At the
on
work has
turntable
status of
following
long-standing
crystallized
tember
occurred:
custom
* * *
hand,
Examiner
“Trial
Paradise:
Companies.
Lo-
the one
in the
On
May
stipulated
Chicago
agreements
that the National As-
from
in
has had
cal 10
Engineers
broadcasting
infancy
sociation of Broadcast
very
of the radio
the
industry
organization
op-
Technicians is a labor
within
turntable
have covered
meaning
development
and,
of the National Labor Rela-
of broad-
erators
casting
* * *
Act,
Companies
techniques,
?
tions
have
O’Donoghue:
Chicago by
operations
adjusted
Yes.
“Mr.
in
their
Padway:
say
I want to
“Mr.
this. We
placing
in the broadcast-
turntables
their
say yes
say
they
operated
and we won’t
no.
won’t
Put
can be
where
studios
peo-
conveniently by
at this
employees
on the record
time. Our
in musi-
most
opinion
ple
NABET,
hand,
are of the
so-
studio en-
the other
units. On
cians’
gineers,
organization
called,
units,
a labor
employees
is not
within
technical
mem-
company-dominated.
Act,
predecessor,
and that
and its
N.A.B.E.T.
bers of the
proceed-
is not an issue in this
performed
Since that
work outside
turntable
have
you
ing,
years.
take it if evidence were offered
Chicago
I
The location
for at least
probably
engineer’s
refuse to take it. Am I
booth
the turntables
right on that?
of this situation.
inevitable result
was
with the
proceeding
evidently
representation
familiar
was
NABET. The
require
hearings
practice ordinarily
April
initiated in
sepa-
September
in a
tried
unit de-
of domination to he
were held in
issue
rate
ac-
proceeding
made
and he seems to
termination
certification were
objection
quiesced
procedure.
January
until
No
November 24th.
this
Not
days
trial examiner
set for
to it was
before the
three
before the date
voiced
nor,
appears,
any
bargain
criticism hearing
so far as
the refusal
charges.
AFM in
oral ar-
ruling
its
Then at the
of his
made
did AFM file its
gument
hearing
post-
January
applied
at
before the
for a
30th
report.
investigation
the trial examiner’s
ponement pending
practice was
general
days
In our
charges
brief states that
before.
filed three
adopted
representation proceedings
opinion
of discretion
there was no abuse
delay
would ensue
postpone-
order to avoid the
denial of
the trial examiner’s'
hear-
investigation
from the
detailed
ment.
precede
adjudication
ings which must
AFM’s
adequate
No
excuse is shown
be-
of unfair labor
issues.7 We
majority
filing
and a
adoption
practice is with-
lieve
of such
opinion
motion to
the court are
Pitts-
in the Board’s discretion.
proceedings for additional evi-
remand the
*5
146,
case,
burgh
313 U.S.
at
Plate Glass
subject
be denied.
on
should
dence
The motion
156,
914,
1251,
85
Mr.
page
61 S.Ct.
L.Ed.
7,
March
papers show
on
that
Reed said:
Justice
1945,
by
Regional
AFM was notified
“
*
* *
hardly
It can
said that
be
charges
care-
that
had been
Director
its
employ-
an
of a labor union
domination
fully investigated
refusing
he was
to
question
unit
er is
of what
irrelevant
complaint.
a
thereupon
AFM
filed
issue
rep-
appropriate
labor
is
for the choice of
request
of the
of a review of the dismissal
certainly
but
is a collateral
resentative
it
April
charges, and
Chairman
17th the
* *
*
In
investigation.
matter in that
Padway
Mr.
of the Board wrote
that the
short,
rep-
pertains directly
domination
to
complaint
Board had concluded that a
but influences the choice of
resentation
nothing
not
should
be issued. There
casually.”
only
unit
papers
motion
to
that a remand
indicate
any-
produce
for additional evidence would
only
In
case not
did
thing new or additional to what
Board
acquiesce
appear
AFM
counsel far
investigated.
already
Determination
has
practice
requiring
of
issue
an
the
of domination to be tried
or not to
in-
whether
file
after
separate
in a
vestigating
practic-
labor
of unfair
proceeding, but the record shows inexcusa
part
initiating
discretionary
Board. See
ble
of
es
Labor
Indiana
proceeding.
during
pend- National
Relations Board v.
Both
Co.,
Michigan
&
Electric
318 U.S.
representation proceeding and
ency of the
579;
19,
394, 87
63 S.Ct.
afterwards,
ample opportunity
L.Ed.
there
Jacobsen
Cir.,
bring
Board, 3
AFM to
to the attention of
National Labor
the v.
Relations
96,
company
120
charges of
F.2d
domination of
previously
Yes.
Examiner Paradise:
found
the Board in
“Trial
complaint proceeding
company
to be
dom-
inated,
O’Donogliue:
purpose
But for the
National Labor Relations Board v.
“Mr.
organization
Corporation,
hearing,
?
Falk
a labor
it is
308 U.S.
60 S.Ct.
of this
purpose
396;
Padway:
previously
of this
For the
where
“Mr.
dis-
organization
organization
appears
hearing
rep-
labor
within
established
is a
in a
saying
proceeding
that, I
do not foreclose
resentative
under a different
the Act.
parties
organization
myself
apprised
name
from establish-
have been
or our
any
proceeding
hearing
in advance
that
is dom-
that
identity
right?
litigated,
would be
be all
Matter of
inated. Will
right.”
Co.,
Baltimore
Paradise: All
Transit
Examiner
59 N.L.R.B.
“Trial
No.
excep
35;
7
and where the evidence has
Board’s brief states
fortuitous-
The
ly
employer participation
practice
general
have been
disclosed
tions
organization,
recognized
formation of the
“where the constitution
of a
Matter of
Douglas
rep
participating
Co.,
organization
486;
Aircraft
in a
53 N.L.R.B.
labor
Mfg.
Stamping
proceeding
Co.,
Matter of
Toledo
on its face disclos
resentation
organiza
vinced shown, company union is not a former argument be- AFM. straining At the oral Co., 2 Cir., Oil 138 N.L.R.B. v. Standard proceed- 10 Board in the section fore 885; & Westinghouse Manu Electric F.2d Padway said: ing Mr. Cir., N.L.R.B., 112 facturing 2 F.2d Co. v. per 312 61 affirmed curiam U.S. tell what do can’t to “We 1108; 736, 85 logical AFM’s L.Ed. and here hope will do we but directly original namely, points recognition such to refuse evidence to thing, proper Ap- is domination. This the first occasion to Circuit Court of gets until to Appeals AFM had contest the Board’s as Court let peals and practice,” proceedings 10 “consistent since serted there deter- then open only real relief here and proceed representation no review of direct it. N.L. Pittsburgh ings. Co. Plate Glass La R.B., supra; Federation of American rep- great fear N.L.R.B., 60 S.Ct. bor v. by the proceedings answered resentation receive 347. L.Ed. And refusal hearing which statutory requirement aof appropriate ground for relevant evidence had, if delay. And must whatever be addition grant of a motion to adduce certainly anyhow, will it must had be Mer York al evidence. N.L.R.B. v. New determine time to take little additional Co., Cir., chandise pri- party not a can establish whether or claims, and support of its ma case short, facie been accorded has not hearing. Our only thus force an extended entitled, hearing full it is practice as upholding holding here seeking, opportunity, and is now at its first Board, discretionary with notwithstand- it, procure only way open pub- statute own and the Board’s Indeed, hearing. right seem full rules, seriously disturb- lished seems me surprised I am clear rather to me so Glass ing. Pittsburgh I Plate read the objection vigorous and as at the Board’s case, supra, support cited contrary practice “to leave the sertion of clusion, contrary, pointing rather to the aggrieved right file parties to their vigorous even without to the reference under Section of the Act” —a opinion Chief for the doubtful, all more since it Justice very dissenting point to the followed, it consistently as the Board Justices erroneously refused. relevant evidence was quoted in note self showed in its brief suggestion For that has no that rele- case case, opinion. And in Madden may be in a vant evidence refused involving supra, 147 F.2d hearing charges may filed un- because emploj'ees of the Baltimore Transit only evi- der section it holds that the Company Com Coach Baltimore adduced, in view dence there to be court, pany, injunction reversing an Board, already facts known against the conduct of election ordered required change in would not have deciding the Board after result. -The issue there one of the ef- question domination, D.C.Md., 58 F. repre- bargaining agent of a fectiveness quite Supp. properly: said “It senting plurality employer’s plants *7 clearly Congress not that the intention of independence separate the place the Board should in an on the ballot (an upon units which Board’s issue the employer organiza an election dominated changing views seem been to to- have (N.L.R.B. Corporation, tion v. Falk view, wards the latter 51 Yale 155— L.J. 162); majority and the that the held ; 396) and it is inconceivable that it should Board, having picture it, a full before could pro summary have been intended that the favor broader bargaining the unit because provided by 9(c) cedure section advantages, steps even if of its must be delayed complaint proceedings while under It, stop company taken the domination. to Indeed, being section were conducted.” together below, with the decision the Board makes its own answer to its by has been taken the court “But, practice says when it in its brief: rendering original the as reinforc- decision plainly, the Board’s refusal a com to issue requirement the that the Board must ing plaint upon charge that is not to relevant Donnelly consider relevant evidence. Gar- proceedings in the issues the nor instant N.L.R.B., Cir., ment 123 F.2d Co. does the evidence to be adduced course, 223. Of had the Board here de- Moreover, any bearing upon have them. NABET, if termined that even judicial authority both Act make dominated, must nevertheless em- be the may clear that in its discretion ployees’ representative, we have refuse to issue and its action problem faced with different of re- respect subject judicial in that is not to view. prosecutor review.” action in motion, opinion prosecute denying refusing hardly AFM’s to can be made review; grounds, subject only two further which relies on are direct relevancy by pressed of reference to not and are essen- procedure posi- tially would seem to be inconsistent with Board’s a more com plete acquiesced seeking demonstration AFM first is that counsel tion. The practice holding in the far as promoted by so relations will not be concerned, only intending proceedings are otherwise. to attack it And the second elsewhere. only delayed Not AFM these has not guilty of inexcusable proceedings slightest, far so filing charges to 10. As under section shows, they record but attained second, accept the fall we must if cases, almost speed unknown must) (as I view think we representation hearing since even oc- complete 10 is- irrelevancy of only certainly curred last fall. While we any right of sue here and absence ought expedition decry not to does when it review of the not to Board’s decision occur, yet proper suggest it is this complaint. noted that But it is to be speed likely is not case where result, charges, AFM did without file safeguard rights which Act aims to again and that same filed the protect. contrary, On the weeks the few just hearing in before the Janu- needed at most to determine if ary, en- proceedings on the real one, will will case cause harm but to no election, e., i. results of force the impress litigants all the as a real endeavor steps temporaneously taking of with the completely final secure fair and settle- ef- putting into the Board for its decision litigation ment fair otherwise bids fect. inexcusable This does not seem like to leave substantial union interests dissatis- question delay; prompt as to it does outcome, merely fied with the but many proceedings how footless collateral means which been achieved. it has right necessary preserve are proceeding to full party. which it is a direct ground answered seems also The first opin- quotation from the record background ion, light viewed simple own and its of the Board’s here, “that the Board stark submission POFF v. PENNSYLVANIA R.R. refusing permit no error committed inquiry representation proceedings an 351. No. sup- (Italics legality NABET.” into the Appeals, Second Circuit. Court bowing plied.) Clearly counsel Board, hear- July 9, ruling so that the clear reserving expressly proceed, might but pro- any “in right to establish only ceeding it is dominated.” Not proceeding, completely quite another seen, one only but, it is the as we have *8 judi- really raised can where the judicially. view cially or reviewed counsel seems otf background, intent thus made the result so clear appropriate upon his mischoice turn trial, though no one midst of words and, quite thereby; be misled or could result obviously, no different day all argued had he followed English. precise choice careful most than harsher a result to me seems This courts of law in federal reached abolished. exception has been where Procedure, rule Civil Rules of Federal sug- 723c. I following section U.S.C.A. litigants parties, like gest these important court, not suffer hasty, rights because of damaging loss misleading, mistakes of counsel though not trial, tranquility and that during