UNITED STATES SUPREME COURT DECISIONS ON-LINE

Before the National Labor Relations Board, a union charged an employer 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 clubjuris

Page 330 U. S. 220

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. 330 U. S. 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. 330 U. S. 225-238.

3. Upon examination of the whole record, it cannot 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. 330 U. S. 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. 330 U. S. 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. 330 U. S. 233-236.

6. The power of the Circuit Court of Appeals under § 10(e) to require the Board to take additional evidence cannot be employed to enlarge the statutory scope of judicial review. Pp. 330 U. S. 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. 330 U. S. 236-237. clubjuris

Page 330 U. S. 221

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. 330 U. S. 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. 330 U. S. 238.