DONNELLY GARMENT CO. v. NATIONAL LABOR RELATIONS BOARD (DONNELLY GARMENT WORKERS' UNION et al., Interveners), 151 F.2d 854

SANBORN, Circuit Judge. This is a petition of the Donnelly Garment Company to review and set aside an-order of the National Labor Relations-Board, entered June 9, 1943 (50 N.L.R.B.. 241), requiring the disestablishment of the Donnelly Garment Workers’ Union and the-abrogation of its contracts with the petitioner. The Board, in its answer, has requested this Court to enforce the order.

The National Labor Relations Board, on April 27, 1939, upon charges filed by the International Ladies’ Garment Workers’ Union (hereinafter referred to as “the International”), issued a complaint, subsequently amended, against the Donnelly Garment Company, of Kansas City, Missouri,, a manufacturer of women’s garments, doing a nationwide business, charging it with having engaged in unfair labor practices-within the meaning of Section 8(1), (2) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.

Briefly stated, the charges were that the-Company had fostered, dominated and supported the Donnelly Garment Workers’ Union, an independent union of the Company’s-employees (which, for convenience, will be called the “plant union”), and its alleged-predecessor, the “Nelly Don Loyalty League”; that the Company had entered; into a closed-shop agreement with the plant union for the purpose of assisting it; that the Company, in April, 1937, discriminatorily discharged, and had refused to reinstate, two employees, Sylvia Hull and May Fike, for joining and assisting the Inter-r national.

In its answer, the Company denied that it had engaged in any unfair labor practices, and asserted the existence, on the part of the International, of a conspiracy to force the Company, by fraud, violence and secondary boycott, to compel its employees, against their will, to join the International, and that the Board, its agents and representatives were furthering this unlawful conspiracy. The Donnelly Garment Workers’ Union (the plant union) was permitted to intervene.

It admitted in its answer that the Company and the plant union had entered into a closed-shop agreement, but denied all of the other allegations of the complaint. The International was also permitted to intervene, in support of the charges against the Company. Upon the issues made by the pleadings, a hearing was had in 1939 before a Trial Examiner appointed by the Board.

He excluded evidence which the Company and the plant union deemed to be relevant and material, including proffered testimony of employees tending to show that the plant union was not dominated and supported by the Company, and evidence that the International was engaged in an unlawful conspiracy to force the Company to compel its employees to join the International against their will.

The Trial Examiner, in his intermediate report, found the facts in favor of the Board, except as to the alleged discriminatory discharge of May Fike and as to the alleged discriminatory discharge and refusal to reinstate Sylvia Hull. He found that May Fike had not been discriminatorily discharged; and found that Sylvia Hull had been excluded from the plant of the Company because of union membership and .activities, but was not discriminatorily discharged.

The Board’s decision of March 6, 1940, sustained the rulings and adopted the recommendations of the Trial Examiner, except that the Board determined that May Fike had been discriminatorily discharged .and was entitled to be compensated for her loss of wages.

The Board ordered the 'Company to cease and desist from engaging in the unfair labor practices found to exist; to disestablish the plant union as the representative of its employees for purposes of collective bargaining; to cease' and desist from giving effect to its contracts with the plant union, except “the substantive features * * * relating to rates of pay, wages, hours of employment, or other conditions of employment”; to reimburse the employees for amounts deducted from their wages as dues for the plant union; to reinstate May Fike and to reimburse her for any loss in wages.

The Company filed in this Court its petition for a review of the order of the Board. The Board answered the petition and asked that its order be enforced. The validity of the order was challenged by the Company upon two grounds: (1) lack of due process, and (2) lack of an adequate evidentiary basis for the order.

This Court thought that the Board, by refusing to receive and to consider the proffered evidence of the employees of the Company indicating that their freedom of choice of a bargaining representative had been in no way interfered with and that the plant union was uninfluenced, undominated and unsupported by the Company, had clearly denied the Company and the plant union due process of law. See Donnelly Garment Co. v. National Labor Relations Board, 8 Cir., 123 F.2d 215.

We expressed the opinion that bias and prejudice on the part of the Trial Examiner and the Board was not shown by the record; that the Trial Examiner had not erred in confining the issues to those tendered by the complaint; and that the Board was not required to try the International for an alleged conspiracy, nor to try the charge that the Board had conspired or colluded with the International. We concluded that there was a lack of due process in the proceedings before the Board in that competent and relevant evidence offered by the Company had been excluded.

We said, in that connection (page 224 of 123 F.2d) : “The truth is that a controversy tried before a court or before an administrative agency is not ripe for decision until all competent and material evidence proffered by the parties has been received and considered.” We also said (page 225 of 123 F.2d): “Our conclusion is that the petition of the Board for enforcement of the order under review must be denied.

We think that the least that the Board can do, in order to cure the defects in its procedure caused by the failure of the Trial Examiner to receive admissible evidence, is to vacate the order and the findings and conclusions upon which it is based; to accord to the petitioners [the Company and the plant union] 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 final paragraph of our opinion reads as follows (page 225 of 123 F.2d): “The petition of the Board for the enforcement of its order is denied, and the case is remanded to the Board for further proceedings.” The mandate of this Court provided that the case be “remanded to said Labor Board for further proceedings not inconsistent with the opinion of this Court.” It is, we think, apparent that what this Court, in effect, ruled was that the Company and the plant union were entitled to a new trial upon the evidence already taken and such competent and material evidence as might be proffered upon a further hearing.

We were advising the Board that, in our opinion, it had not complied with the minimal constitutional requirements of due process. Under the order of this Court, the Board was at liberty to do whatever was necessary in order to give to the parties the full and fair hearing to which they were constitutionally entitled. If the Board thought that this Court was wrong in its conclusion that the proceedings which preceded the Board’s order were lacking in due process, the Board was, of course, at liberty to apply to the Supreme Court for certiorari.

The Board entered an order setting aside its decision and order of March 6, 1940, and reopened the record for a further hearing “for the purpose of taking additional evidence in accordance with said opinion and decree” of this Court. The Board designated as the Trial Examiner to conduct the further hearing the same Trial Examiner who had presided at the original hearing and who, during that hearing, had expressed the opinion that evidence of employees of the Company which this Court ruled to be competent and material was immaterial and valueless.

The Company presented to the Board a request that it designate another Trial Examiner to conduct the hearing. The basis for the request was that the examiner designated was biased and prejudiced. Attached to the request was an affidavit of prejudice signed by the Secretary of- the Company, stating that he believed that the examiner had prejudged the evidence which this Court had held must be received and considered. The basis for the affiant’s belief was stated in detail.

It consisted of rulings and remarks of the examiner, made during the original hearing, relative to the admissibility and worth of evidence proffered by the Company and rejected. The intervener plant union concurred in the request for the designation of another Trial Examiner. The Board refused the request. It stated that this Court had decided “that the Trial Examiner and the Board had been free of any bias or prejudice.” The further hearing was conducted by the Trial Examiner during the summer of 1942. He permitted Mrs. James A.

Reed (Nell Quinlan Reed), the President of the Company (who had by reason of illness been unable to appear at the original hearing), to testify. He admitted the evidence of eleven of the employees of the Company tending to show that the employees voluntarily formed the plant union and that the union had at all times been free from employer influence, domination, and support. He then ruled that other similar employee-testimony would be cumulative and refused to admit it. He rejected other offers of proof made by the Company and the plant union. He struck out so much of Mrs.

Reed’s testimony as related to events subsequent to July 15, 1939, the date of the termination of the first hearing. He received, as rebuttal, testimony offered by the Board tending to strengthen its case in chief, and allowed the Company and the plant union a limited surrebuttal. The intermediate report of the Trial Examiner was filed November 27, 1942. It recites that he had accorded the Company and the plant union an opportunity to introduce all of the competent and material evidence which was rejected at the prior hearing, and that the report was based upon the entire record.

The findings of the Trial Examiner, in so far as they relate to controversial matters, are, in substance, as follows (50 N.L.R.B. 244) : Under the heading, “Respondent’s [the Company’s] Responsibility for the Activities of Various Employees,” the Trial Examiner found: That instructors and thread girls (members of the plant union), of whom there were some 44, were supervisory employees and representatives of the Company; that Rose Todd, who was active in the formation and administration of the plant union, was in fact a supervisor and was regarded by the other employees “as a person in whom the management had confidence and whose views reflected those of the management”; that Hobart Atherton, who was employed in the maintenance department of the Company, and who was active in the formation of the plant union, was a supervisory employee in charge of that department; that Florence Strickland, of the pattern department, Lena Tyhurst, of the inspection department, Martha Gray, of the outlet store, Ortense Root, of the sample department, Heath Cowan, of the receiving department, Marvin Price, of building maintenance, Ted Scholes, of the cutting department, and Mary Bogert, of the dividing department [all of whom had been active in the organization known as the Loyalty League), were supervisory employees.

The Trial Examiner, under the heading, "Events Prior to the Effective Date of the Act [National Labor Relations Act],” found: That prior to 1934 no effort had been made to organize the employees of the Company: that in 1934, the Interna tional established an office in Kansas City, Missouri, and announced in the papers that an attempt would be made to organize the garment workers of Kansas City; that on March 15, 1934, and December 4, 1934, the International held open meetings, to which the employees of the Company were invited; that supervisory employees of the Company, including Mrs.

Reeves, then production manager, and Mrs. Hyde, personnel manager, attended the meetings in a group; that at least a dozen of the employees joined the International and that several became active in its behalf; that employees were called to the office of Mrs. Reeves, questioned about their interest in the International, and warned against joining it; that Mrs.

Gray, “in charge of respondent’s [the Company’s] outlet store,” said that it was a “shame” that an employee had joined the International; that a substantial number of employees were laid off or discharged shortly after they joined the International; that about 12 employees, in June, 1934, discussed joining the International at the home of Glynn Brooks Yamell, an employee of the Company and a member of the International; that Yarnell was discharged in July, 1934, although she had worked for the Company since 1924; that, within a few months, all except one of the employees who had met at her home were either laid off or discharged; that the International, on December 6, 1934, filed a charge against the Company under

Section 7(

a) of the National Industrial Recovery Act, 48 Stat. 198, asserting that eight employees had been laid off because of their having joined the International; that testimony in that proceeding was completed, but, before it was decided, the Act was declared unconstitutional; that in the latter part of 1934 and the first part of 1935, all of the other employees who were known to have joined the International were transferred from the main factory of the Company to a temporary branch factory which was used during the busy season; that when the use of the temporary building was discontinued, the employees, most of whom had several years’ service, were laid off, while employees working in the main factory were retained; that, as a result of these events, employees became hesitant about joining the International, and those who joined denied having done so, and employees who had not joined were careful not to talk with those suspected of having joined, for fear of discriminatory treatment with respect to their jobs; that in February, 1935, Martha Gray, “in charge of the * * outlet store,” and Florence Strickland, “in charge of the pattern department,” formed an organization among the employees, known as the “Nelly Don Loyalty League”; that it was initiated at a meeting at the home of Mrs.

Gray, attended by about 50 employees representing the various sections of the factory; that, within a few days, substantially all employees had joined; that Florence Strickland, in circulating membership cards, stated that Mrs. Donnelly (Mrs.

Reed) would close her doors before she would have a union shop, and that employees should sign the cards to keep their- jobs; that a statement was circulated along with the membership cards to the effect that the employees protested against and would resist outside interference with the business of the Company or with their relations to the Company, and that they recognized that they had had generous and fair treatment from Nelly Don (Mrs.

Reed), President of the Company, and reposed confidence in her rather than in “professional agitators who are sent here to create discontent among employees of the company.” The Trial Examiner found that Florence Strickland refused to allow Virginia Stroup, an employee who was president of the International Local, to become a member of the Loyalty League, becatise Stroup belonged to “another organization” ; that Lena Allison, an instructor, refused membership to Frances Reidell on the ground that she was a member of the International; that on February 8, 1935, a mass meeting of the employees was held dm big Working hours, on the second floor of the building occupied by the Company, presided over by Martha Gray, who explained the meaning of the word “loyalty”; that meetings of the Loyalty League were regularly held on the second floor of the building, upon notices transmitted by Mrs.

Wherry, factory manager, or by the switchboard operator of the Company, and transmitted to the employees in each

section by their instructor; that each

section had a representative in the League, elected by the employees in the section; that virtually all of the Company’s supervisory employees, including Mrs. Reeves, Mrs.

Hyde, Dewey Atchison, Martha Gray, and Florence Strickland, were members of the Loyalty League; that “the League had songs of loyalty and sponsored the wearing of pins bearing the initial ‘L’ as a demonstration of loyalty to Nell Quinlan Reed”; that, by means of the League, the Company fostered an organized employee resistance to outside unions; that evidence of these events, which preceded July 5, 1935, the effective date of the National Labor Relations Act, is competent because the League continued to exist after the Act went into effect, and for the purpose of evaluating what afterwards transpired; that the League was dominated and controlled by the Company and was used by it to prevent its employees from joining the International or any other outside labor organization.

Under the heading, “Events Prior to April 27, 1937; Interference, Restraint, and Coercion,” the Trial Examiner found: That from the time that the Supreme Court decided that the National Industrial Recovery Act was invalid until March, 1937, the International made no further effort to organize the employees; that during this time the League continued in existence and new employees were solicited to join; that on February 26, 1937, there appeared in the Kansas City Star an

article stating that the International had announced a campaign to organize the Company’s employees and had appropriated a large sum to be spent in a drive for recognition of the International as the collective bargaining agent for the Company’s employees; that on March 2, 1937, Mary Sprofera and Inez Warren, shipping clerks, during working hours went through the factory and secured the signatures of approximately 800 factory employees to a pledge reading as follows: “We, the undersigned, as members of the Donnelly Garment Company wish to make it known we are positively happy and contented with the positions which we hold with the organization and refuse to acknowledge any union labor organization.

We are thankful for the real humanitarian interest extended by our employer, Mrs. Reed;” that, with six exceptions, the instructors and thread girls did not sign the petition initially; that three employees, Sylvia Hull, Mamie Carlson and Elsie Greenhaw, at first refused to sign; that two of them subsequently signed for fear of losing their jobs, their names being later erased; that in the afternoon of the day the pledge was signed, Mary Sprofera and Inez Warren took it to Mrs. Reed at her home and presented it to her; that, as the result of arrangements made between Mrs.

Reed and the representative of the Kansas City Star, a picture of these employees presenting the pledge to her appeared on the front page of the paper, accompanied by the statement that Mrs. Reed was going to place the pledge in the cornerstone of the new building she was planning to erect. The Trial Examiner found that Mrs. Reed, shortly thereafter, expressed to her office manager, Mrs. Keyes, a wish that all the employees would sign the pledge; that Mrs.

Keyes requested an employee, Pauline Shartzer, to circulate the pledge among those who had not signed it; that the signatures of all employees, including supervisors, excepting the three employees who had refused to sign, were obtained and presented to Mrs. Reed; that, by permitting Mary Sprofera, Inez Warren and Pauline Shartzer to circulate the pledges in the factory during working hours, under the circumstances outlined, the Company interfered with, restrained and coerced its employees in the free choice of a collective bargaining agent.

The Trial Examiner found that on March 6, 1937, the Kansas City Journal-Post carried an

article stating that David Dubinsky, President of the International, at a meeting of 700 union members in Kansas City, had launched a movement to organize the employees of the Donnelly Company; that this announcement was followed by a letter to the Company from the International, under date of March 9, 1937, requesting a conference between the International and the Company; that the Company did not reply to the letter; that a meeting of all the employees of the Company took place during working hours on the afternoon of March 18, 1937, on the second floor of the building occupied by the factory; that employees were notified orally by their instructors that they were to attend; that the instructors had been notified by Mrs.

Wherry or over the Company’s telephone system; that most of the supervisory employees attended the meeting, including Mrs. Hyde, Mrs. Gray and Mrs. Reeves, and the instructors and the thread girls; that Rose Todd, with the assistance of Hobart Atherton, “both of whom were officials of the League and supervisory employees,” called the meeting; that Rose Todd presided; that chairs for the meeting were rented by the League; that the meeting was sponsored by the League and its officials; that Mrs.

Reed was invited to address the meeting; that she brought with her the letter which the Company had received from the International “requesting a conference”; that the letter was read to the employees; that Mrs.

Reed then expressed her pleasure at having received the “loyalty” pledge which had been presented to her on March 2, stated that the Company was an institution to be proud of, that it had taken care of its employees by keeping the factory in operation during the depression, and that she intended to continue to run the business; that she spoke of threats of violence that the International was alleged to have made against employees of the Company, and promised protection against such violence. The Trial Examiner found that the Board’s witnesses testified that Mrs.

Reed said that she would close her factory before she would permit it to be unionized, and would not allow “Dubinsky or any other ‘sky’ to tell her how to run her business”; that the Company’s witnesses testified that Mrs. Reed stated that “Neither Dubinsky or any other but-tinsky is going to intimidate me or the company into forcing you [the employees] to join the International against your will.” The Trial Examiner found that it was unnecessary to resolve the conflict in this testimony, and that Mrs. Reed’s own version of her speech constituted an unfair labor practice.

The Trial Examiner found that the meeting was sponsored by the League; that supervisors were present; that the employees must have been aware of the anti-union character of the meeting; that, while many of them may have feared the alleged threats of the International, the Company, instead of permitting them to decide what attitude they would adopt toward the International, “seized upon such fears as may have existed to build up and strengthen a militant employee opposition toward that labor organization”; that Mrs.

Reed’s remarks indicated that the International was the common enemy of both the Company and its employees, and promised protection against it; that she labelled David Dubinsky a “but-tinsky” who was seeking to force the employees to join the International; that, while Mrs. Reed “sought to appear as a disinterested defender of the * * * employees in the exercise of their right to join or not to join a labor organization,” her remarks made it plain that the Company’s attitude toward unionization had not changed and that membership of any of the employees in the International was not to be tolerated.

The Trial Examiner found that the Company, by its sponsorship and domination of the March 18, 1937, meeting of its employees and by Mrs. Reed’s talk at that meeting, interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in

Section 7 of the Act. The Trial Examiner found that on April 22, 1937, the Kansas City Journal-Post carried an announcement by the International that Sylvia Hull, one of the Company’s operators, had been named as a delegate to a convention of the International; that the next day, when she went to work, she was subjected to a demonstration by other employees, who demanded to know what authority she had to represent them at the convention, sang Loyalty League songs, and demanded the surrender of her Loyalty League pin (which she surrendered upon being paid its cost) ; that the instructor in the

section where Sylvia Hull worked was present, but did not order the demonstrators back to work; that Mary Bogart, in charge of the dividing section, was present and pointed Sylvia Hull out to some of the demonstrators; that Mrs. Hyde, employment manager, appeared and told the demonstrators to go back to work; that the demonstrators stated they would not work while Sylvia Hull was there; that Mrs.

Hyde took Sylvia Hull down to the office; that a number of the demonstrators followed, shouting that they would not return to work until they heard Sylvia Hull say she would go home; that she then said, “I will go home, I didn’t know the girls felt this way about it or I wouldn’t have done it”; that Mrs. Hyde told Sylvia Hull that she would have to go home; that she replied that she did not want to quit but would go home for the day; that she gave to Mrs.

Hyde a telephone number through which she might be reached; that on the same morning a similar demonstration took place near the machine operated by Fern Sigler, who was wearing an International pin; that this demonstration subsided when Mr.

Baty, the factory manager, accompanied by Rose Todd, ordered Fern Sigler from her machine to the office; that, as she left the floor, the operators shouted, “we are not going to work as long as she remains here”; that when Baty insisted on sending Fern Sigler home, she argued with him that she had a right to join the International and that it was the-duty of the Company to control its employees; that Baty replied, “We don’t go in for the Wagner Act, we are just running our business here not a law office”; that Rose Todd then stated, “We are going to run an open shop as long as the majority feels that way”; that the conference was participated in by Baty, Mrs.

Hyde, Rose Todd, and Fern Sigler; that Fern Sigler was sent home; and that Baty promised to talk to the operators and quiet them-down and to recall Fern Sigler when the unrest had subsided, but that, despite his promise, Baty did nothing to allay antagonism toward the International. The Trial' Examiner found that the Company approved of and encouraged the demonstrations and took advantage of them to show its hostility to the International and its support of anti-International activities, and’ thereby interfered with, restrained and coerced its employees in violation of the rights guaranteed them under

Section 7 of the Act. He also found that the Company, by using the League and its officers for the purpose of impeding and preventing-the organization of the Company’s employees by the International, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed bisection 7 of the Act.

Under the heading, “Domination and interference with the formation and administration of the D.G.W.U. [the plant union]' and contribution of support; interference,, restraint, and coercion,” the Trial Examiner made the following findings: That shortly after the March 18, 1937, meeting, a committee composed of Rose Todd, Hobart Atherton, and Sally Ormsby, employed Frank E.

Tyler, an attorney; that when-Tyler asked for a retainer [of $500], Rose Todd borrowed $1,000 from the First National Bank of Kansas City, upon the unsecured note of the Loyalty League, deposited the money in the Loyalty League-checking account, and gave to Tyler a League check signed by Todd as president and Hartman as treasurer; that, while the first conference with Tyler related to the possibility of obtaining an injunction against the International, Tyler, after the National Labor Relations Act was held constitutional, on April 12, 1937, suggested the formation of an independent union; that on April 27, 1937, a mass meeting of all the Company’s employees was held during working hours, on the second floor of the building in which the Company’s plant was located, upon notice given by the instructors, who had been notified by Mrs.

Wherry or over the telephone system; that instructors and thread girls attended the meeting along with the operators in their sections; that chairs for the meeting were rented and paid for by the Loyalty League; that Rose Todd, who was still the President of the League, presided at the meeting; that she stated that Mr. Gossett and Mr.

Tyler, whom she had consulted, advised forming a plant union; that she further stated that the Loyalty League, being a purely social organization, would not take care of the situation; that another organization was necessary to represent them; that she pointed out that a union would have to be formed if they were to successfully resist organization by an outside union; that she told the employees that the new organization would be called the “Donnelly Garment Workers’ Union,” and that, although she was as distressed as they were at having to use the word “union”, it seemed to be necessary; that Mr.

Tyler was then introduced by Rose Todd; that Tyler stated, in substance, that, some weeks before, several of the employees came to his office and employed Mr. Gossett and himself as legal advisers of the employees; that he was acting as such; that, whether they believed in unions or not, he and Mr.

Gossett believed that it was to the employees’ best interests to organize their own individual unaffiliated plant union; that Tyler stated that one of the reasons for the organization was the fact that the International had sent a representative to its national convention and “in order to stop this and make it clear that you are speaking for yourselves through your own representatives whom you choose, we think your own union is desirable”; that he also stated: “I do not think this action can or will be considered as

an act of unfriendliness to your employer. I believe they recognize your right to take this step and it isn’t an unfriendly act to them. In fact, it is much better for them and yourselves for you to have your own union with your own representatives rather than having a group trying to represent outsiders from New York”; that Rose Todd then said: “Well, we are together as an entire group of employees.

Let’s form this organization”; that it was decided by a unanimous vote, without discussion, by the approximately 1300 employees to form such a union; that a nominating committee of five was appointed by Rose Todd to select a General Chairman and eight Group Chairmen to serve as representatives and officers of the new organization; that membership cards, previously prepared, were distributed; that Tyler then read the by-laws, which he had. prepared, which were unanimously adopted without alteration; that the officers named by the nominating committee were unanimously elected; that the 1300 membership cards were collected, and the meeting declared adjourned.

The Trial Examiner found “that the concept of an independent union originated with respondent’s [the Company’s] supervisory employees and further, that the respondent [Company] through the activities of its supervisory employees gave approval, and lent assistance and encouragement to the D.G.

W.U. [the plant union].” Under the heading, “Membership and participation by other supervisors in the D.G.W.U. [the plant union],” the Trial Examiner made findings that Dewey Atchison, production engineer, joined the plant union at the April 27, 1937, meeting, but resigned on July 14, 1937; that instructors and thread girls regularly attended the meetings of the union; that other supervisory employees, named by the examiner, attended and took

part in meetings; that at the meetings where officers were elected, there were few, if any, contests; that Rose Todd continued on as chairman; that at various times the question as to whether department heads and instructors should have the right to membership was raised; that Rose Todd took the position that, aside from the executives of the Company, Mr. Keyes, Mrs. Keyes, Mr. Green, Mr. Baty, and Mrs.

Hyde, all employees were eligible; that employees at various times expressed the view that the presence of instructors and department heads at meetings prevented other employees from speaking freely of their complaints; that, through its supervisory employees, the Company continued its control and direction of the plant union. Under the heading, “The contracts; closed-shop, check-off and piece-work rates,” the Trial Examiner made the following findings: That on April 28, 1937, the day following the organization of the plant union, Rose Todd presented the membership cards to Mrs.

Reed, stating that the plant union had been organized by the unanimous vote of the employees and represented a majority; that Mrs. Reed assured her that the Company would consider the matter; that on May 6, 1937, the Group Chairmen of the plant union met with Mrs. Reed, and told her that they would want a contract covering hours, wages, and working conditions, “which up to now have been satisfactory,” and that they desired a closed shop; that Mrs. Reed at once replied, “I understand that is very essential to industrial peace”; that the representatives of the plant union told Mrs.

Reed they wished to pay part of Rose Todd’s salary, and that Mrs. Reed, in agreeing, stated, “I do not feel at the present time that you [Todd] need give all of your time to the union”; that Tyler thereafter prepared a proposed agreement containing a closed-shop provision, which was approved by the Group Chairmen of the plant union on the morning of May 27, 1937; that it was presented to Mrs. Reed, who stated, in effect, that the spirit of the agreement was satisfactory, but that changes in phraseology might be needed; that Mrs.

Reed and other representatives of the Company met with Tyler and Rose Todd at three o’clock that same afternoon, and that' Tyler, after the conference, reported to the Group Chairmen that the Company had suggested a few modifications of the proposed contract, which he recommended should be accepted; that on June 22, 1937, a supplemental agreement covering minimum wages for time workers and minimum weekly guarantees to piece workers, was entered into; that the terms of this contract were not submitted to the membership of the plant union for approval before or after its execution, although it fixed wages for a year and had a provision for an automatic extension; that the plant union demanded a minimum wage of $16.50 a week for the lowest paid piece workers; that Rose Todd stated that the International had announced that it was seeking a $16 weekly minimum in the garment industry, and that she thought it would be a good idea to improve on that to defeat efforts of the International to organize the Company’s employees.

The Trial Examiner found that, by its terms, the original agreement of May 27, 1937, was to remain in effect for a period of two years, while the supplemental wage agreement was to expire July 1, 1938, subject to the provision for automatic extension from year to year unless either party notified the other in writing of a desire to terminate it; and that the two contracts have continued in effect without change.

The Trial Examiner found that in August or September, 1937, the Company agreed, at the request of the plant union, to a check-off of the monthly dues of its members (except the salesmen); that employees signed cards, prepared and distributed by the Company agreeing to permit the dues to be checked off; that the plant union kept no records of individual dues paid, and issued no receipts to members; that the checks for dues checked off, which were turned over each month to the plant union, range from $250 to $325 a month.

The Trial Examiner found, with respect to the committee consisting of Lulu Nichols, Josephine Spalito, and Rose Todd, appointed by the Group Chairman to adjust piece-work rates, that Nichols was a supervisory employee of the Company and that Spalito was her assistant; that it was their duty to fix piece-work rates for the Company; that the same persons, therefore, represented the Company and the employees in negotiations in regard to piecework rates, and that the employees were forced to become “members of an impotent collective bargaining agency * * Under the heading, “Respondent’s [the Company’s] contribution of support to the D.G.W.U. [the plant union,]” the Trial Examiner found: That the meeting at which the plant union was formed and the succeeding three or four membership meetings were held during working hours; that the meetings were held in the building where the factory was located; that prior to May 10, 1937, the Company did not lease the second floor, on which the meetings were held, and the plant union was permitted to use it as a meeting place without charge; that on May 10, 1937, the Company leased the second floor, and the plant union continued to use it as a meeting place until April, 1938, when the Company remodeled a portion of the first floor to serve as an auditorium; that thereafter the plant union used the auditorium for its meetings; that not until November, 1937, was the question of paying rent raised; that the first rental payment to the Company was made in April, 1938, and was at the rate of $3.00 for each meeting held during the preceding twelve months; that this payment of rent was an afterthought; that Rose Todd had announced in meetings that the use of the Company’s facilities was entirely proper; that meetings of the Group Chairman, who composed the executive committee of the plant union, were, prior to May, 1938, held in the office of Beulah Spilsbury, who was in charge of the designing department, and thereafter in the auditorium, and that no rental was paid for the use of Company property by the Group Chairmen; that notices of meetings of the plant union and of the meetings of Group Chairmen were given through the means of communication furnished by the Company; that Rose Todd, in giving notice of meetings, collecting assessments and giving instructions, used the messenger service of the Company; that piecework operators who served as Group Chairmen or officers were paid for time lost in attending to the business of the plant union; that Rose Todd continued to receive her full salary as an employee of the Company and, in addition, was paid $65 a month by the plant union; that she was permitted by the Company to devote as much time as she desired to the business of the plant union without deduction in pay; that she carried on such business during working hours; and that in organizing the employees at the Company’s St.

Joseph plant she lost half a day without a salary deduction; that at a meeting of May 11, 1937, Rose Todd stated that union work would be conducted at a desk on the ninth floor of the plant and that she could be reached at any time necessary; that her desk was the plant union’s only office; that the business of the union was transacted there; that the records of the union were kept in a file case belonging to the Company; that Rose Todd collected money for the union on Company time; that when she took her vacation in December, 1937, she told the Group Chairmen that a Miss Riddle would be at the desk from 11 a. m. to 12:45 each day to transact union business; that the membership cards of the plant union were mimeographed after working hours by employees on a machine belonging to the Company; that copies of the plant union’s by-laws were made on a ditto machine of the Company; that the plant union had no typewriter, and a Company machine was used for typing minutes of meetings of the union and its Group Chairmen.

Under the heading, “The Alleged Discharges,” the findings of the Trial Examiner are: That Sylvia Hull, whose employment with the Company terminated April 23, 1937, had worked for the Company for nearly eight years; that she joined the International on March 23, 1937; that on April 22, 1937, it was publicly announced in a Kansas City newspaper that she had been selected by the International to represent the Company’s employees at the International’s convention; that, after the demonstration to which Sylvia Hull was subjected the following day at the plant, she went home with the understanding that she would be recalled; that she did not voluntarily quit her employment, and acquiesced, under pressure, in a one-day lay-off; that she was temporarily laid off by the Company because of her union activities and affiliations; that the Company thereby discriminated against her in regard to her tenure of employment, and thereby discouraged membership in the International, and restrained and coerced its employees in the exercise of the rights guaranteed in

Section 7 of the National Labor Relations Act; but that the Company, through the efforts of Mrs. Hyde, attempted to recall Sylvia Hull to work and had not discriminatorily refused to reinstate her. The Trial Examiner, in dealing with the issue of the alleged discriminatory discharge of May Fike, found that she was not discharged because of her union affiliations or activities.

In conclusion the Trial Examiner found that the activities of the Company set forth in his findings “tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.” He recommended to the Board the form of order which he thought should be entered by it. The Board, after hearing exceptions to the report of the Trial Examiner, entered its decision and order, on June 9, 1943, affirming his rulings and adopting, with certain unimportant exceptions, his findings, conclusions, and recommendations.

The Board’s order of June 9, 1943, which is the order now under review, directed the Company to disestablish the plant union as the representative of the Company’s employees; to cease giving effect to the contracts with the plant union; and to reimburse the employees for dues and assessments deducted from their wages by the Company on behalf of the plant union. In its decision, the Board said: “In remanding the case to the Board for further hearing, the Circuit Court directed that the respondent [the Company] and the D. G. W.

U. [the plant union] be permitted to adduce the previously proffered testimony of respondent’s [the Company’s] employees to show, in substance, that they formed and joined the D. G. W. U. of their own free will and that they were not influenced, interfered with, or coerced by the respondent in choosing that organization as their bargaining representative. In compliance with the Court’s mandate and pursuant to the respective offers of proof submitted by the respondent and the D. G. W. U. at the original hearing, the Board permitted the introduction of such testimony.

We have carefully considered all such evidence adduced by the respondent and the D. G. W. U. We find, however, that the testimony in question does not overcome more positive evidence in the record that the respondent committed acts of interference and assistance in the formation and administration of the D. G. W. U. which subjected that organization to the respondent’s domination and which removed from the employees’ selection of the D. G. W. U. the complete freedom of choice which the Act contemplates. Since we find the testimony here adduced totally unpersuasive that the employees voluntarily designated the D.

G. W. U., we are moreover impelled to adhere to the opinion, derived from our experience in administration of the Act, that conclusionary evidence of this nature is immaterial to issues such as those presented in this case. A consideration of all the evidence convinces us, and we find, that the respondent dominated and interfered with the formation and administration of the D. G. W. U. and contributed support thereto; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in

Section 7 of the Act.” We have set forth in detail the findings of the Trial Examiner because they state the facts which the Board contends are established by the evidence. Briefly stated, the determination of the Board that the plant union was sponsored, interfered with and dominated by the Company, is based upon the following conclusions:

(1) That the Company, prior to the effective date of the National Labor Relations Act, was hostile to the International and to outside unions; (2) that the Loyalty League was organized by supervisory employees of the Company for the purpose of resisting organization by the International; (3) that the plant union was an offshoot or successor of the Loyalty League; (4) that supervisory employees participated in the organization and in the administration of the plant union; (5) that the plant union did not function as a true bargaining representative of the employees, and that the Company, in effect, bargained with itself as to wages, hours, and working conditions; (6) that the Company made substantial contributions of its facilities to the plant union; and (7) that Mrs.

Reed’s speech to the employees at the March 18, 1937, meeting was coercive. In other words, the position of the Board is that the organization of the plant union was solely attributable to efforts of the Company and its representatives to prevent its employees from joining the International. The Company and the plant union contend that the determination of the Board is based upon a distortion and disregard of the competent and relevant evidence introduced and proffered by them during the hearings.

They contend that this evidence shows conclusively that the formation of the plant union was solely attributable to the fraudulent and violent methods which they assert were, at the time, being employed by the International to compel employers engaged in the garment industry in Kansas City and the Southwest to force their employees to join the International on penalty of having the business of the employers destroyed.

The Company and the' plant union contend that the circumstances surrounding the organization of the plant union were, in general, as follows: That the International, in the year 1937, was engaged in a campaign to organize the garment industry in Kansas City, including the Company, which was the largest local employer engaged in that industry; that on February 26, 1937, Meyer Perlstein, Southwest Regional Director of the International, publicly announced in the press that the plan was to send a letter to the Company within a week, suggesting a conference to establish collective bargaining on the question of wages and working hours, and stating: “ * * * If the firm refuses, we’ll go to the consuming public of the country and advise buyers of the wages and hours prevailing there now. ****** “Part of the union’s [the International’s] campaign directed against the Donnellj Garment Company will be to send six women to cities and towns where its garments are sold ‘advising retailers and labor organizations.’ * * * “The union [the International] claims only twenty-five members among the Donnelly workers, but officials said ‘hundreds of others are related to union members.’ “ ‘Within a year, we’ll have it completely organized.’ Mr.

Perlstein said, ‘As soon as we have enough members, we’ll call a strike. This will be in addition to carrying our side to the consumers.’ ” The Company and the plant union assert that this threat of a secondary boycott and a strike caused resentment and fear among the employees, and that they voluntarily, and without suggestion of any officer of the Company, circulated what has been referred to as the “loyalty petition , stating that they were contented, refused to acknowledge any outside interference, and were thankful for the humanitarian interest extended to them by Mrs.

Reed; that on March 6, 1937, David Dubinsky, President of the International, in the course of a speech made in Kansas City, said: “Reed [the husband of Mrs. Reed, President of the Company] will receive a polite letter within a few days inviting him to confer with Kansas City labor leaders about signing a union contract.

If he refuses to meet with us, we shall start our campaign”; that on March 9, 1937, Perlstein prepared a letter which was mailed to the Company concerning alleged grievances; that the Company did not reply to the letter because it regarded the letter as a mass of falsehoods; that the International was without authority to represent the employees, and they were protesting against being represented by it; that as a preliminary to the planned campaign against the Company, the International, about March IS, 1937, called strikes against three smaller garment manufacturers in Kansas City, which were located not far from the plant of the Company ; that the pickets of the International took possession of the buildings or building which housed these factories; that pickets, imported by the International, carried on a program of terrorism and violence; that employees of those factories who were trying to go to their work were beaten and kicked, and their clothing was torn or stripped off; that the Kansas City newspapars were filled with articles and pictures descriptive of what was taking place in these plants; that the plants were closed; that the employees of the Donnelly Company were fully aware of what was going on at these plants, and knew that the same tactics were to be employed to force the Company to compel its employees to join the International, in entire disregard of their rights and wishes; that it was the intention of the International to use the same methods to procure the organization of the Donnelly plant that had been used at other plants in Kansas City and in other cities of the Southwest region under the jurisdiction of Perlstein; that on March 18, 1937, upon premises not leased or controlled by the Company, its employees voluntarily held a meeting arranged by Rose Todd and Hobart Atherton, employees of the Company; that, at the meeting, the violence at the strikes at the Gemes, Gordon, and Missouri Garment companies and the threats that were being made against the employees of the Donnelly Campany were discussed; that the question of what action might be taken by the employees against the threatened assaults was considered; that someone was sent to ask Mrs.

Reed to speak to the meeting; that she made a short talk; that a stenographic transcript of her talk was made, and represents all that she said; that she left the meeting immediately after she finished her talk; that shortly after this meeting, Rose Todd, Hobart Atherton and Sally Ormsby, on behalf of themselves and other employees, consulted the law firm of Gossett, Ellis, Dietrich & Tyler, of Kansas City, relative to securing protection against the anticipated attack of the International; that Mr..

Tyler advised the possibility of obtaining an injunction, and asked for a retainer fee of $500; that the committee took the liberty of borrowing money from the First National. Bank of Kansas City, and paid this retainer; that the money was later repaid through voluntary contributions of fifty cents each by the employees; that on April 1, 1937, Meyer Perlstein publicly stated, with respect to the campaign to organize the employees at the Gernes, Gordon, and Missouri plants: “These three firms will soon have union shops.

If not, they will never again manufacture dresses;” that after the Supreme Court, on April 12, 1937, had sustained the constitutionality of the National Labor Relations Act, Mr. Tyler suggested to Rose Todd, Sally Ormsby, and Hobart Atherton the advisability of the employees organizing an independent union as a matter of self-protection; that on or about April 22, 1937, an

article appeared in the Kansas City press, stating, in effect, that Sylvia Hull, an employee of the Company, had been named a delegate to the International’s Convention at Atlantic City, to be held on May 3, to ask the International to indorse and support a strike against the Company “for failure to negotiate a contract for higher wages, shorter hours and improved conditions”; that Sylvia Hull had not been authorized by any of the emplcpyees of the Company to represent them; that the

article was given to the press by Perlstein; that the publication of this

article caused other employees to hold a demonstration against Sylvia Hull when she came to work the following day; that she was not physically molested and voluntarily went home; that she later attended the convention of the International at Atlantic City, where she delivered a speech, which had been prepared for her, containing false statements concerning the Company, and asking that the convention vote funds to support a strike at the Donnelly plant; that she never sought to return to her work at the plant but became a paid worker for the International; that on April 27, 1937, all of the Company’s employees, with the exception of those having authority to hire, discipline or discharge, voluntarily attended a meeting, held after working hours on premises not leased or controlled by the Company, and, upon the advice of Mr.

Tyler, their counsel, and for their own self-protection, by unanimous vote, organized their own union and elected its officers and a bargaining committee; that the Company did not, directly or indirectly, influence the formation of the union or contribute to its support or participate in its administration; that the plant union, after negotiations, entered into collective bargaining contracts with the Company covering wages, terms and conditions of employment, and providing for a closed shop and exclusive representation by the plant union; that these contracts provided for better wages and working conditions than prevailed in other comparable plants in the locality under contracts negotiated by the International; that the contracts negotiated by the plant union with the Company have been complied with, and all complaints which have arisen have been satisfactorily adjusted; that on May 25, 1937, Perlstein publicly urged a boycott of Donnelly products and announced that retailers would be visited and urged to refuse to buy such products, under threat of having their stores picketed, and that $250,000 had been appropriated by the International to finance its campaign; that the International sent out representatives to urge retailers to boycott the products of the Company under threat of a secondary boycott; that circulars were widely distributed, containing false statements as to wages and working conditions in the Donnelly factory, as a ground for appealing to the public to refrain from buying the Company’s products.

The Company and the plant union further assert: That the employees whom the International contends (were discriminatorily discharged by the Company in 1934 and 1935 were not discharged because of their union affiliations or activities; that the evidence relative to events which occurred prior to the effective date of the National Labor Relations Act furnishes no basis for an inference that the Company was hostile toward outside unions.

That the “Nelly Don Loyalty League,” organized in 1935, was a voluntary association, formed for social purposes, and that it never functioned as a labor union or a representative of the employees; that it collected no dues and held no regular meetings ; that it was not the predecessor of the plant union and did not assist or influence the formation of that union; that the League continued to exist and operate after the formation of the plant union, exactly as before.

That the instructors, thread girls, and other employees, whom the International asserts, and the Board found, were supervisory employees, ineligible for membership in the plant union, were in fact not supervisory employees, and that employees holding comparable positions in plants organized by the International were regarded as eligible for union membership. That the Company refused to provide for a check-off of union dues in its contracts with the plant union, and only consented to deduct them after each employee had individually authorized the Company, in writing, to make the deduction.

That the use by the plant union of typewriters, mimeograph machines and other facilities belonging to the Company was never consented to or known by the Company. The picture drawn by the International and the Board is that of an employer which, solely because of hostility to the International, has influenced, and coerced its employees into forming a plant union and entering into a closed-shop agreement, thus depriving them of their freedom of action and choice and making them, in effect, the bondservants of their employer.

The picture which the Company and the plant union present is that of a group of employees, on friendly terms with their employer, satisfied with their wages and working conditions, and desirous of avoiding strikes and labor troubles, who, upon the advice of their counsel and for their own protection against an unjustified and unlawful attempt by the International to force them to become, and to force their employer to make them become, members of that union against their will, voluntarily formed and have satisfactorily administered their own completely independent union.

The question as to which is the true picture, in so far as that presents a question of fact, is not a matter with which this Court can concern itself. Our sole function is to determine whether the Board, acting within the compass of its power, (1) has held a proper hearing, (2) has made findings based upon substantial evidence, and (3) has ordered an appropriate remedy. National Labor Relations Board v. Bradford Dyeing Association, 310 U.S. 318, 342, 60 S.Ct. 918, 84 L.Ed. 1226; Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F.2d 903, 907.

The Company and the plant union assert that the trial accorded them was unfair because of (1) the Board’s refusal to designate another examiner to preside at the hearing after remand; (2) the bias and nonjudicial attitude of the Trial Examiner and the Board throughout the entire case; (3) the failure to give consideration to employee testimony; (4) the refusal to permit the Company to prove a conspiracy on the part of the International, by fraud and violence, to force the Company’s employees to become members of that union; (5) the receiving, over objection, of the evidence of the Board relating to events which occurred in 1934 and 1935, and the refusing to receive evidence of the Company relative thereto; (6) the Trial Examiner’s direction of the order of proof and his limitation of testimony; (7) the exclusion of competent and material evidence. 1.

The refusal of the Board to designate another Trial Examiner. The contention of the Company and the plant union is that the Trial Examiner who had conducted the first hearing, and was designated to hold the second hearing, had completely prejudged the case and that his rulings, set out in the affidavit of prejudice presented to the Board, demonstrated that he had a fixed opinion as to the worthlessness of evidence which this Court had ruled was admissible and must be considered.

The fact that we said in our former opinion that “it cannot be said that it appears from the record of the proceedings before the Examiner and before the Board that there was a denial of due process because of bias and prejudice or collusion” (123 F.2d 215, 219), was not a ruling that, in case the Board granted a further hearing, the same Trial Examiner would be a suitable person to conduct it, over the protest of the Company and the plant union.

A few of the Trial Examiner’s remarks, at the first hearing, about the value of the proffered testimony of the employees were : “No, I don’t think it is of any value in the issues in this case, to parade these people on the stand.

Now, if that is your idea, you may make as complete an offer as you care to with respect to that matter.” “I think I should tell you now that if there is any further testimony of that kind, you can put it in an offer of proof, because I don’t think it is material to the issues here * * *» “Now, I don’t consider that testimony, if it were given, of any value when they are put up here on the stand and testify under oath, with the respondent [the Company], and in some cases, the foreman and the superintendent present.

It might result in coercion, and it might not.” With all due respect to the Trial Examiner, who conducted himself with courtesy and patience under conditions which were not always tranquil, it is hard to believe that he could be entirely impartial in weighing evidence which he, sincerely, considered to be of no value or materiality. We think that a party to a controversy such as this who believes and has substantial grounds for believing that he cannot have a fair trial before a certain trial examiner, should not be forced to present his case to that examiner.

We realize, of course, that the Board is at liberty to conduct its proceedings in its own way, through its own instrumentalities, subject only to the condition that the proceedings shall measure up to the constitutional requirements of due process. The unfairness of trying issues of fact to those who may have prejudged them has been dealt with in Winebrenner v. United States, 8 Cir., 147 F.2d 322, 328-329. 2. The alleged bias and nonjudicial attitude of the Trial Examiner and the Board.

It is contended that it appears from the record that the Trial Examiner and the Board had prejudged the case and were determined to convict the Company at all events, disregarding its testimony whenever necessary to make a finding favorable to the Board. In order to sustain a railing to that effect, it seems to us that it would be necessary to be able to demonstrate from the record to a moral certainty the existence of such a mental state. The presumption is the other way, Cupples Co. Manufacturers v.

National Labor Relations Board, 8 Cir., 103 F.2d 953, 958, and inquiry into the mental processes of the Board members is not a function of this Court. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129. The record is persuasive, as we have already pointed out, that the Trial Examiner had, upon the first hearing, reached the conclusion that the testimony of employees upon the issue whether their plant union was or was not dominated by the Company should be disregarded.

We think, however, that a ruling by this Court that the proceedings of the Board lacked due process because of its alleged bias and prejudice against the Company and the plant union is not justified. 3. Failure to consider employee testimony. The employee testimony which the Company and the plant union contend was given no consideration by the Board is that which was thought by the Examiner and the Board, upon the first hearing, to be immaterial, and which we held to be competent and material (123 F.2d 215, 222-223).

Upon the second hearing, the Trial Examiner received the testimony of eleven of the Company’s employees relative to how and why they came to organize the plant union and what sort of an organizan tion it was and is. He then ruled that further evidence of employees would be cumulative. There was .other similar employee testimony in the record of the first hearing, as the Board points out, but it is, of course, obvious that that evidence had, prior to the remand, been ruled by the Board to be immaterial, and had therefore not been considered.

Although the plant union complains that the Trial Examiner heard none of the employee testimony proffered by it, it is apparent that this testimony would have been no different than the testimony of the eleven witnesses produced by the Company and that the testimony received was for the benefit of both. The ruling by the Trial Examiner that further employee evidence would be cumulative was equivalent to a ruling that all of the employees offered as witnesses would have given the same evidence as that which was received.

We are satisfied that the Examiner was justified iri limiting the number of witnesses as he did. There is much force in the contention that, while the employee evidence was received, it was still regarded by the Board as being entirely immaterial and worthless. The Board was of the opinion, and is apparently still of the opinion, that the ruling of this Court relative to the admissibility of such evidence was and is erroneous. The Board is, of course, entitled to its opinion in that regard.

The Board’s attitude toward this employee evidence was well expressed by its counsel at the second hearing, after an employee had stated that she had joined the plant union of her own free will. As already pointed out, the Trial Examiner states that he has based his findings upon the entire record. He makes no specific reference to the employees’ testimony as to the plant union being their voluntary and uninfluenced choice.

The Board, in its order adopting the findings of the Examiner, said with respect to such evidence: “Since we find the testimony here adduced totally unpersuasive that the employees voluntarily designated the D.G.W.U. [the plant union], we are moreover impelled to adhere to the opinion, derived from our experience in administration of the Act, that conclusionary evidence of this nature is immaterial to issues such as those presented in this case.” The Board argues that its statement relates merely to testimony that the employees formed and joined the plant union of their own free will and were not influenced, interfered with, or coerced by the Company; that this testimony was not material, because of positive evidence in the record that the Company had interfered with and assisted in the formation of the plant union, which rendered that organization incapable of acting as the bargaining agent of the employees.

It is our understanding that, when an employer is charged with an unfair labor practice which he denies having committed, the Constitution of the United States guarantees him a fair trial of the issue; that one of the requirements of a fair trial is that any evidence which is competent and material shall be received and considered, and that the strength of the testimony against him has no bearing upon the admissibility of his testimony or his right fully to present his defense.

The rule contended for by the Board that the introduction of positive and direct evidence of guilt renders pertinent “conclusionary” evidence of innocence immaterial might make for expedition in the trial of controversies before the courts and administrative agencies, but it is not in accord with present basic ideas of fairness.

If one were of the opinion that it appeared from the undisputed evidence in this record that the plant union was, as a matter of law, a company-dominated union and that all reasonable and fair-minded men could, from the evidence, reach no other conclusion, one might believe that the failure of the Board to consider what it terms “conclusionary” evidence, no matter how material, was harmless error, ’the Board, however, had the burden of proof; it was the sole judge of the facts, of the credibility of witnesses, and of the weight of their evidence.

Unquestionably it could have found from the competent evidence introduced and proffered by the Company and the plant union that the latter was not company-dominated, or the Board could have determined that the evidence was insufficient to justify the conclusion that the plant union was company-dominated.

It seems to us that the Company and the plant union are justified in contending that the evidence of the employees tending to show lack of domination and interference by the Company received no different or greater consideration upon the second hearing than it did upon the first, and that it was disregarded in both hearings. 4. Refusal of evidence of conspiracy on the part of the International.

The contention is that the Company and the plant union were entitled to show that the International, at and prior to the time of the formation of the plant union, was engaged in an unlawful conspiracy to force the Company, by the use of fraud and violence, to compel its employees, regardless of their wishes, to join the International. This Court, in its former opinion in this case, said (page 225 of 123 F.2d): “We are of the opinion that the Trial Examiner did not err in confining the issues to those which were tendered by the complaint filed by the Board.

We are satisfied that the Board was not required to try the International for alleged conspiracy nor to try the charge that the Board had conspired or colluded with the International.” This statement, we think, was based upon the theory that the clean hands doctrine was not necessarily applicable to proceedings before the Board, and that, while the Board might, if it saw fit, inquire whether it was being taken advantage of to further unlawful or unworthy activities of the complaining union, it was not compelled to do so. The case of National Labor Relations Board v.

Indiana & Michigan Electric Co., 318 U.S. 9, 63 S.Ct. 394, 87 L.Ed. 579, de cided January 18, 1943, deals with this same question. It was held in that case that, while the misconduct of the party making charges of unfair labor practices against an employer does not deprive the Board of jurisdiction to issue a complaint or conduct a proceeding, such misconduct may properly be considered by the Board in determining whether it should institute or continue a proceeding upon the charges, and that the Board properly may be required to receive evidence and make findings on that issue.

The Supreme Court said (page 19 of 318 U.S., page 400 of 63 S.Ct.): “The Board might properly withhold or dismiss its own complaint if it should appear that the charge is so related to a course of violence and destruction, carried on for the purpose of coercing an employer to help herd its employees into the complaining union, as to constitute an abuse of the Board’s process.” The Company and the plant union here have at all times contended that the International, by the use of fraud and violence, was endeavoring to force the Company to herd its employees into the International, and that the charges filed by the International with the Board were not filed in good faith, but for the purpose of influencing the result of an action for an injunction brought by the Company to prevent the International from carrying out its threats.

That the charges of misconduct made by the Company and the plant union against the International are not without substance is shown by the record. We think that if a further hearing were to be held, the application of the Company and the plant union to this Court for permission to adduce before the Board additional evidence of the alleged misconduct of the International should be granted. 5. Evidence as to events in 1934 and 1935. The Board based its findings of hostility of the Company to outside unions upon evidence of events which preceded the enactment of the National Labor Relations Act.

The Company and the plant union regarded such evidence as incompetent and immaterial, and objected to its introduction. It is true that an employer’s attitude prior to the Act toward the unionization of his employees may be an unfair criterion by which to judge his subsequent attitude. No doubt, an employer is entitled to the benefit of the presumption that he intends to comply with the law. We see no reason, however, why the Board may not show what the labor situation was at a plant shortly prior to July 5, 1935, for whatever light that may-throw upon subsequent events.

It must be remembered that in this case the Board was contending that, prior to that date, the Loy alty League was formed for the purpose of resisting the International and that the plant union formed in 1937 was an outgrowth of or a substitute for the League. It is argued that the Company and the plant union were not permitted to introduce evidence relative to these past events which the Board contended showed anti-union sentiment on the part of the Company.

This argument appears to be based in part upon the refusal of the Trial Examiner, during both the first and the second hearing, to receive evidence relative to the methods which the International, from the beginning, was using in its efforts to organize the Company’s employees, and in part upon the assertion that, during the second hearing, the Examiner, over the objection of the Company, permitted the Board to examine witnesses relative to events that occurred in 1935, but refused the same privilege to the Company.

The testimony specifically referred to as having been improperly received, over objection, related to the Loyalty League, which, as already pointed out, the Board contended was an instrumentality of the Company to resist the International, and which the Company and the plant union asserted was a mere social organization. What motivated the formation of the League and what purpose it served were proper subjects of inquiry, and we think that the rulings of the Trial Examiner relative thereto did not deprive the Company or the plant union of a fair trial. On the second .hearing, the Trial Examiner permitted Mrs.

Reed, the President of the Company, to cover the entire field in her testimony, although' he subsequently struck out so much of her evidence as related to matters subsequent to July 15, 1939.

We think, however, that the Trial Examiner, in view of the importance which he ascribed to events preceding the enactment of the National Labor Relations Act, should have received evidence proffered by the Company on the second hearing to show the methods employed by the International to organize the employees of the Company and that the Company was not guilty of the charges of discriminatory treatment of its employees made by the International under the National Industrial Recovery Act.

We should hesitate to rule that the Trial Examiner’s failure in this regard amounted, alone, to a denial of due process, but if the Company’s attitude toward outside unions prior to the National Labor Relations Act was to be regarded as a matter of controlling consequence, the Company should, we think, have been afforded a full and fair opportunity to prove that its attitude was not what the International asserted it to be. 6. The Trial Examiner’s direction of the order of proof.

It would be a rare case in which the direction of the order of proof would be of sufficient consequence to amount to a denial of due process. The refusal of the Examiner to permit the Company to complete its examination of the witness Wave Tobin prior to putting on its employee testimony did not make the second hearing unfair. The order of proof is a matter addressed to the discretion of the trial tribunal. United States v. Manton, 2 Cir., 107 F.2d 834, 844. 7. Exclusion of competent and material evidence.

The Company and the plant union contend that, to refute the evidence relied upon by the Board and the International as indicating that the contracts with the plant union were a sham, evidence that contracts containing similar provisions were made by the International should not have been rejected. We know of no reason why evidence that provisions similar to those in the contracts between the Company and the plant union were not unusual and were included in contracts of the International itself should not have been considered pertinent.

It at least bore upon the “imponderables” which the Board has the power to appraise. International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 79, 63 S.Ct. 83, 85 L.Ed. 50; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 599, 61 S.Ct. 358, 85 L.Ed. 368.

The Trial Examiner refused to receive evidence proffered by the Company (1) to show that, under the customs existing in labor unions and particularly in the International in the year 1937, instructors, head cutters, and head pattern makers or those holding equivalent positions, regardless of titles, were usually regarded as eligible to union membership and were received into such unions; (2) to show that Wave Tobin organized strikes in the Gernes, Gordon and Missouri Garment companies in Kansas City in March, 1937; that she, as agent and representative of the International, was in charge of and directed the strikes and the violence perpetrated in connection with them, and to show, by her, the nature of the violence and that it was intended that the same methods should be employed against the Company and its employees; (3) to show, by the records of the Kansas City Joint Board of the International, that in the garment plants in Kansas City having contracts with the International, head cutters, head pattern makers, head examiners and instructors, whether known as such or not, are treated as eligible for union membership and are active members of the International, and that the eligibility and acceptance of such employees as union members is customary in the garment industry; (4) to show substantially similar facts by Erwin Feldman, counsel for garment companies which have contracts with the International.

The Company and the plant union, in support of their claim that the employees formed their own union in order to protect themselves against violence and misrepresentation and to prevent the Company, under threat of the destruction of its business and their jobs, from herding them into the International against their will, had a right to show what methods the International was resorting to in its organizing campaign in Kansas City. Such testimony would have substantiated the evidence of the employees that that was the reason they organized the plant union.

The employees were interested witnesses whose testimony might be discounted. The testimony of those who conducted the strikes for the International could not well be disregarded. Most of the testimony relating to the alleged fraud and violence of the International is in the record in the form of offers of proof, but it was not received or considered by the Trial Examiner or by the Board. The other offers of proof referred to, should not, we think, have been rejected.

If the issues had been tried before a jury, evidence that employees holding positions similar to those of the employees who were asserted by the Board to be ineligible to union membership, were regarded by the International and other large unions as eligible to union membership, would, in our opinion, have been admissible. We do not mean that the jury would have been bound by such evidence, but that the evidence would tend to indicate that employees holding similar positions were not usually considered by employers and employees in the garment industry to be representatives of the management.

Our conclusion is that the Company and the plant union have not yet had the full and fair trial to which they are constitutionally entitled. It is apparent that the Board was convinced, upon the first hearing, that it had before it and had considered all of the competent and relevant evidence which it was required to receive and consider. It believes now that it has fully met the requirements of due process, has complied with the mandate of this Court, and is entitle

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