National Labor Relations Board v. Red Spot Electric Co.

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NATIONAL LABOR RELATIONS BOARD v. RED SPOT ELECTRIC CO. et al.

No. 12804.

United States Court of Appeals Ninth Circuit.

June 20, 1951.

191 F.2d 697

versies submitted to them but shall give assurance that they are impartial, free, to use the words of the section, from any ‘bias or prejudice’ that might disturb the normal course of impartial judgment.” (Emphasis supplied.)

It is not enough that the judge, despite his predetermination of essential facts, may put them aside and conduct a fair trial but that there also shall be such an atmosphere about the proceeding that the public will have the “assurance” of fairness and impartiality. Here we find the respondent judge, in the presence of another attorney, deprecating the action of petitioner‘s attorney, Marshall, an able member of the bar of this court, for defending petitioner, having the presumption of innocence of the charge which that officer of this court has devoted his proper professional services to resist.

There are several other district judges available to hear and determine petitioner‘s motion for reduction of bail. Here are applicable the words of the Berger opinion

255 U.S. at page 35, 41 S.Ct. at page 233: “* * * for of what concern is it to a judge to preside in a particular case; of what concern to other parties to have him so preside“? Such queries apply a fortiori in this prosecution of alleged Communists, likely to excite the widest public attention.

The petition for the permanent writ of prohibition ordering the respondent judge to take no action in any matter affecting petitioner respecting his contentions regarding bail or in connection with his prosecution under the above indictment is granted and the writ ordered issued.

BONE, Circuit Judge (dissenting).

The record before us fails to convince me that it is our duty to disqualify Judge Carter from taking any further action in the above entitled matter. My conclusion that the petition fails to show disqualifying personal bias or prejudice rests upon the reasoning in such cases as

Price v. Johnston, 9 Cir., 1942, 125 F.2d 806, 811;

Loew‘s Inc. v. Cole, 9 Cir., 1950, 185 F.2d 641, 646, and see comments of Judge Yankwich in the same case in the lower court.

76 F. Supp. page 872;

Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278;

Foster v. Medina, 2 Cir., 1948, 170 F.2d 632.

I would dismiss the petition for a writ of prohibition.

A. Norman Somers, Asst. Gen. Counsel, NLRB, Washington, D. C., Louis S. Penfield, Attorney, NLRB, San Francisco, Cal., for petitioner.

No other appearances were entered.

Before ORR and POPE, Circuit Judges, and FEE, District Judge.

JAMES ALGER FEE, District Judge.

The National Labor Relations Board moves for summary entry of decree of enforcement of an order of the Board, which was entered by rule, and which automatically, without examination, adopted the intermediate report of the Trial Examiner, wherein it was found that respondent was engaged in commerce, had in violation of the Act discriminatorily discharged sixteen employees and had interfered with, restrained and coerced employees in the exercise of rights guaranteed by the Act. The action of the Board in adopting automatically the intermediate report is explicitly authorized by regulations¹ based upon a section of the Act,² where, as here, the respondent did not file exceptions thereto. No appearance has been made by respondents in this Court.

In this posture of the case, it is strongly urged that this Court has no authority to examine the record, but is imperatively compelled to order enforcement summarily. There is no language in the enactment which points to the conclusion so desired. The whole structure of the law demands judicial consideration when an order of enforcement is prayed.³ If mechan-ical sanctions were required, these could have been provided without the necessity of appeal to the courts.

The General Counsel here seems to seek a plenary power to have the order enforced, no matter how unjust it might be and even though the Board itself has never actually examined the record. This mechanistic approach cannot be justified. Since the problem is not the right of the party litigant, but solely the jurisdiction and authority of this Court, certain analogies serve us here. Even where there was a default in a case of equitable cognizance, the practice of many trial courts, reflecting the ancient chancery procedure, has been to take proofs before decree.⁴ Also, it has been the custom for appellate courts to take notice of manifest error to which no exception has been taken.⁵ The postulates of jurisdiction of the Board⁶ and of the Court⁷ itself must be examined without fail. The proposition of automatic enforcement of an order of a trial examiner, unexamined by the Board, was certainly not contemplated by the amendments of the Act. On the other hand, the whole tenor thereof effectually negatives the idea. The adoption of the interpretation urged would be a retrogression toward the outmoded concepts now discarded.⁸

In any event, it has now been held that the amendments of the Act required a stricter rule of construction than hitherto and that the courts have a much broader sphere of action in determining what orders are to be enforced.

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456;

National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453.

Therefore, simply because the power of a party in default to take action as of right may have been delimited by Congress, there is no intimation that the power of judicial scrutiny was destroyed when the Board came as suitors praying sanctions upon a report, neither the entry nor the contents of which has been considered by them. As a result, summary enforcement has been denied.

The record of this case has been meticulously and deliberately reviewed. The jurisdiction of the Board is clear. The Court has power to consider the cause. The findings of the Trial Examiner⁹ are each supported by substantial evidence.

Decree will enter enforcing order.

POPE, Circuit Judge (concurring).

I approve the judgment of the court as announced in the majority opinion, and agree that upon a petition of this kind we should carefully examine the record for the purpose of determining that the Board had jurisdiction to make its order and that it has not “traveled outside the orbit of its authority“. Such procedure is in conformity with the ancient practice of courts of equity when asked to enter a default decree.

With respect to other matters stated or suggested by the opinion, I do not think that the rule of

National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739, has been modified either by the language of the statute or by anything said in

Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, or in

Labor Board v. Pittsburgh SS. Co., 340 U.S. 498, 71 S.Ct. 453. The language of § 10(e) of the Act quoted and relied upon in the Cheney Lumber Company case has not been changed in the later Act.

Notes

1

29 C.F.R. §§ 101.12, 102.48.

2

29 U.S.C.A. § 160(c) provides for the recommended order of the examiner automatically becoming the order of the Board in the absence of exceptions thereto.

3

29 C.F.R. §§ 101.12, 102.48, seeks to provide that “objections” of a party not transmuted into “exceptions” for administrative review are waived. But such a self-serving proviso cannot limit judicial discretion in determining whether a mandatory order shall be issued and is therefore unenforceable. 29 U.S.C.A. §§ 156, 160(e). 29 U.S.C.A. § 160(e) limits court consideration of an objection made by a party only where this objection has not been urged before “the Board, its member, agent, or agency“. While it is probable that this proviso has no application to the power of the Court to refuse enforcement of an arbitrary or extrajudicial order, in this instance objections were made by Red Spot before the Trial Examiner, an agent of the Board.

4

Thomson v. Wooster, 114 U.S. 104, 110, 119, 5 S.Ct. 788, 29 L.Ed. 105.

5

Wiborg v. United States, 163 U.S. 632, 658, 16 S.Ct. 1127, 1197, 41 L.Ed. 289;

Clyatt v. United States, 197 U.S. 207, 221, 222, 25 S.Ct. 429, 49 L.Ed. 726.

6

In

National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739, it is said: “Since the court is ordering entry of a decree, it need not render such a decree if the Board has patently traveled outside the orbit of its authority so that there is legally speaking no order to enforce.” The other points of the opinion are subject to the change of the statutes.

7

United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263.

8

General Counsel for the Board dwells at length upon opinions prior to the amendment, but these, of course, give no light. Great emphasis is laid upon the congressional debate, but, in view of the passage of the Administrative Procedure Act, especially 5 U.S.C.A. § 1009(e), and the declared intent in this enactment to give final powers of interpretation to the courts, the words spoken cannot be fitted into the construction demanded by counsel.

9

If the Examiner has committed a flagrant error, the General Counsel should not seek enforcement, and, if he should, the Court is not powerless to prevent injustice under the present statute.

Case Details

Case Name: National Labor Relations Board v. Red Spot Electric Co.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 20, 1951

Citation: 191 F.2d 697

Docket Number: 12804

Court Abbreviation: 9th Cir.