# Bethlehem Steel Co. v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · May 12, 1941 · 120 F.2d 641

URL: https://www.frixlaw.com/law-library/cases/1490623

## Case

- **Full name:** BETHLEHEM STEEL CO. Et Al. (PLAN OF EMPLOYERS’ REPRESENTATION AT THE STEELTON, PA., PLANT OF BETHLEHEM STEEL CO. Et Al., Interveners) v. NATIONAL LABOR RELATIONS BOARD; ASSOCIATION OF EMPLOYEES AT THE MARYLAND PLANT OF BETHLEHEM STEEL CO. v. SAME
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** May 12, 1941
- **Citations:** 120 F.2d 641; 74 App. D.C. 52; 8 L.R.R.M. (BNA) 962; 1941 U.S. App. LEXIS 4625
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stephens, Vinson, Edgerton
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1490623

## Opinion text

120 F.2d 641 (1941)
BETHLEHEM STEEL CO. et al. (PLAN OF EMPLOYERS' REPRESENTATION AT THE STEELTON, PA., PLANT OF BETHLEHEM STEEL CO. et al., Interveners)
v.
NATIONAL LABOR RELATIONS BOARD.
ASSOCIATION OF EMPLOYEES AT THE MARYLAND PLANT OF BETHLEHEM STEEL CO.
v.
SAME.
Nos. 7503, 7538.
United States Court of Appeals for the District of Columbia.
Argued February 17, 1941.
Decided May 12, 1941.
*642 *643 Alfred McCormack, of New York City, pro hac vice, by special leave of court (Richard H. Wilmer, of Washington, D.C., and Fontaine Broun, of New York City, on the brief), for petitioners Bethlehem Steel Co. et al.
S. Ralph Warnken, of Baltimore, Md., for petitioner Association of Employees at Maryland Plant of Bethlehem Steel Co.
Ruth Weyand, Atty., National Labor Relations Board (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, and Ernest A. Gross, Asst. Gen. Counsel, all of Washington, D. C., on the brief), for respondent.
Douglass D. Storey, of Harrisburg, Pa., for intervener Plan of Employees' Representation at Steelton, Pa., Plant.
Robert H. Driskill, of Washington, D. C., for intervener Plan of Employees' Representation at the Cambria Plant.
Lee Pressman, of Washington, D. C. (Joseph Kovner and Anthony Wayne Smith, both of Washington, D. C., on the brief), for intervener Steel Workers Organizing Committee.
Before STEPHENS, VINSON, and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
Bethlehem Steel Corporation and its iron and steel producing subsidiary Bethlehem Steel Company, here called petitioners, ask us to review and set aside [1] an order of the National Labor Relations Board. [2] Charges *644 of unfair practices were filed with the Board by the Steel Workers Organizing Committee (S.W.O.C.), a union affiliated with the Congress of Industrial Organizations (C.L.O.), and a complaint was issued. Hearings before a Trial Examiner occupied several months. The Examiner issued an intermediate report, to which petitioners filed exceptions, and the case was argued orally before the Board.
The Board dismissed a number of charges, including violence, discriminatory discharge, offering inducements not to join S.W.O.C., and conducting a "back-to-work" movement so as to interfere with employees in the exercise of their rights. But the Board found that petitioners had dominated, interfered with, and contributed support to ten labor organizations, called "Plans of Employees' Representation," located respectively at the Company's Cambria, Lackawanna, Lebanon, Steelton, Maryland, Bethlehem, and Concentrator Plants, Rankin Works, Leetsdale Works No. 1 and Leetsdale Works No. 2, and had expressed to employees their animus against S.W.O. C.; that the Company petitioner had surreptitiously given money to the Mayor of Johnstown, Pennsylvania, to insure continuance of his anti-union attitude and conduct, and that the Corporation petitioner must be held responsible therefor; that petitioners had employed detectives to obtain, by surveillance, information about union activities; and that by this conduct petitioners, had interfered with, restrained, and coerced employees in the exercise of the rights, guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157 , to form or join labor organizations and to engage in concerted activities for the purposes of collective bargaining, etc. The Board concluded as matter of law that by dominating, etc., the Plans, petitioners had engaged and were engaging in unfair labor practices within the meaning of Section 8(2) of the Act, 29 U.S.C.A. § 158 (2), and that by interfering with, restraining and coercing their employees in the exercise of rights guaranteed by Section 7, petitioners had engaged and were engaging in unfair labor practices within the meaning of Section 8(1) of the Act. The Board's order directs petitioners and their officers, agents, successors and assigns to cease from dominating or interfering with, or contributing support to, the Plans of Employee Representation at the ten named plants; from interfering with the formation or administration of any other labor organization; from recognizing the Plans as representing employees; and from in any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, to form or join labor organizations and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. The order also requires petitioners to withdraw all recognition from the Plans and completely disestablish them as employee representatives for bargaining purposes, and to post notices of compliance.
In its answer to the petition, the Board asks enforcement of its order. Two of the Plans intervene in support of the petition. S.W.O.C. intervenes in support of the order. A petition of the Plan (now the Association of Employees) at the Maryland Plant, to set aside the order, is consolidated with these proceedings.
The Board's ultimate findings, which are succinctly stated, rest on basic findings which occupy 100 pages of the record. These basic findings meet all tests except brevity, and their length does not invalidate them. We shall not undertake to summarize all of these basic findings. Some of them, together with some items of evidence, inferences, and comments, are to approximately the following effect:
(1) Petitioners created most of the Plans and issued their charters. In material respects, the charters are nearly identical. In 1918, petitioners devised them, and distributed copies to employees at some of the plants together with an announcement that the Plan "is to be established." In the course of a few years the charters were put into operation by the Company, at its various plants. For years the Company recognized that the Plans were created by it, or by it and the Corporation, as a unilateral act. Thus a pamphlet entitled "Hints to Foremen in Meeting the New Employee," which the Company distributed at some of the plants about 1920, instructed foremen to explain to new men that "the Company * * * has adopted the Plan of Employees' Representation" and that it "is one of the most important policies of the Company."
(2) Although majorities have voted in various Plan elections, it is not found, and there is no evidence, that a majority of the men in any of the plants have ever approved of the Plans, or have ever been given *645 an opportunity to vote for or against them. [3]
(3) Petitioners have continued not merely to hold out the Plans as a part of Company policy but to facilitate and encourage voting in the Plans; to represent to employees that the Plans are beneficial to them; and to advise employees to support the Plans and not to join other unions — specifically, not to join the C.I.O. (S.W. O.C.). Up to 1937 the charters required the Company to pay all the expenses involved in the conduct of nominations and elections, and to pay Employees' Representatives, for time spent in Plan meetings or in any Plan activities, at the rate they ordinarily received for their work.
(4) The charters of the Plans preclude independence and embody Company dominance. The Plans have no power to admit, exclude, expel, control or discipline members. All non-supervisory employees, whatever their characters, abilities, or sympathies, automatically become members as soon as they have worked for the Company for 60 days. The charters severely limit the power of the Plans to choose their own representatives. "Employees' Representatives" must be (1) employees of the Company, (2) of at least one year's standing, (3) working in the department which elects them, and (4) adult American citizens. However much Plan members may wish to select as their representative a good bargainer or administrator who does not meet all four of those requirements, the Plan charters prevent it. The charters authorize practically no action by the membership, other than voting for Employees' Representatives. While the Employees' Representatives meet as a "General Body" or "Committee of Representatives" and choose committees, the charters also provide for Joint Committees composed of a group of Employees' Representatives and a group of Management Representatives. The two groups have equal voting power in the Joint Committees. There is a "Management's Special Representative", who may be and sometimes is invited to attend meetings of the Employees' Representatives. The charters provide for no meetings of members and set up no machinery for formulating demands or for controlling or instructing representatives. Meetings are not held in practice. The charters made no provision for the raising of funds, by dues or otherwise. Independent action in such circumstances is obviously impossible.
(5) Until 1935, the charters of the Plans could not be amended without the concurrence of Management Representatives in the Joint Committees on Rules. In 1935 and 1936, the charters were amended to permit further amendment by a two-thirds vote of the Employees' Representatives; but with important exceptions. One exception is that no amendment which "might prevent the Plan from operating as a fair method of selecting representatives of the whole body of employees of the Company and as a fair method of collective bargaining" [4] can be made without the approval of the Joint Committee on Rules, in which the Company has half the voting power. Counsel for petitioners, and also counsel for the Association of Employees at the Maryland Plant, in identical language in their respective briefs, describe the exception which we have just quoted as being "in effect, a condition upon which the Company Petitioner will deal with the representatives of its employees in accordance with the procedure outlined." In other words, the Company requires, as a condition of dealing with a Plan, (1) that the Plan shall continue to receive and retain as a member, regardless of his conduct, principles, or views, every non-supervisory employee whom the Company sees fit to employ, and (2) that the Company shall have a voice in determining the fairness of any desired changes in the method of choosing Plan representatives or of Plan bargaining. This insures the permanence of a large degree of control by petitioners over the subjects of Plan membership, choice of representatives, and bargaining methods. Obviously no labor organization is independent when management shares control over such matters.
In 1937, the Management's Special Representatives at various plants sent identical letters to Plan officers in response to *646 inquiries regarding the effect of National Labor Relations Board v. Jones & Laughlin Steel Corporation. [5] These letters called attention to the necessity, under the Act, of limiting the Company's financial support of the Plans, and assured the Plan officers that no other changes in the charters were necessary. In the course of 1937, accordingly, substantially identical amendments were made in the charters, but the Company continues to pay Employees' Representatives for time spent in conference with Management Representatives [6] during working hours. At the Cambria plant it pays them for the time (within working hours) during which a Management Representative is present at meetings of the General Body of Employees' Representatives. It thereby pays them, in effect, to have him present at their meetings. There is no evidence that a different practice is followed at the other plants. Apart from the amendment clauses and the financial support clauses, the charters, at the time of the hearing, retained substantially their original form. The amendments could not erase from the minds of the employees the well-known and long-continued Company encouragement and approval of the Plans.
Testimony was taken and findings were made with regard to the practical operation of the Cambria Plan. It was stipulated that the other Plans operated in all material respects substantially in accordance with their respective provisions.
(6) The Company employed Pinkerton's National Detective Agency, Inc., for the purpose, among others, of obtaining through labor spies information regarding union activity and organization. The Agency was first employed before 1936. It was reengaged in June, 1936, following the formation of S.W.O.C., and was employed until some time in 1937; for the purposes among others, according to the evidence, of informing the Company on "the activities of various men who are trying to annoy and disturb their employees," on "the arrival and activities of radicals and outside disturbers," and on what was going on in the vicinity of the plants, including the activities of the C.I.O.; also of protecting plants and employees from violence by "outside communists, labor racketeers," defined as "people that get control of legitimate labor organizations and shake down the employer and the employee too." The Board found, despite the denial of a Pinkerton officer, that these descriptions included within their scope the activities of the union organization. Pinkerton "operatives" and "correspondents," several of whom were members of one union or another, proceeded to inform the Agency on union sentiment and activity among the Company's employees. Petitioners concede that the Company obtained from the agency frequent oral reports in which the progress or lack of progress of the S.W.O. C. was discussed.
(7) During a strike at the Cambria (Johnstown) plant in 1937, the Mayor of Johnstown made a speech in which he referred to the fact that violence had broken out and promised to suppress it. He also spoke in hostile terms of the "dictation of outsiders" and sharply criticised strike leaders. Evans, Management's Special Representative at the Cambria plant, through intermediaries, afterwards turned over several thousand dollars to the Mayor; and Ellicott, General Manager of the plant, turned over several thousand dollars directly to the Mayor. The money was not paid by check, but in cash. The Board did not find, and it does not clearly appear, what the Mayor did with the money. It is not found or shown that he applied it to the purposes of a "Citizens' Committee." The Board found that the Company's payments to the Mayor were calculated to insure the continuance of his hostility to S.W.O.C. and so to deprive the union of an impartial city administration. It also found that the Company promised money to a "Citizens' Committee" which, in the name of law and order, sought to break the strike.
I.
Section 8(2) of the Act makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." [7] Thus support, to be prohibited, need not take financial forms. It is clear that the Company dominated, interfered with, and supported the Plans. The Board's other findings to which we have referred are supported by substantial evidence. *647 Its conclusions of law follow. Board orders disestablishing similarly dominated unions have repeatedly been upheld by the Supreme Court. [8] A Board order disestablishing similarly dominated Plans in other plants of the Company has been upheld by the Circuit Court of Appeals for the First Circuit; [9] and the Company's petition for certiorari has been dismissed on its own motion. [10]
The employment of labor spies to report on the growth of a new union, in a context of support of a company union and interference with independent organization, is a part of that support and interference. [11] It need not be shown that specific use was made of the spies' information, or that the employees knew they were being watched. But many employees must have known it prior to the Board's hearing, for testimony before the La Follette Civil Liberties Committee, early in 1937, made public the Company's employment of Pinkerton's.
II.
Petitioners attack the breadth of the order. Having found that they had dominated, interfered with, and contributed support to the Plans, had expressed to the men their animus against S.W.O.C., and had interfered with, restrained, and coerced the Company's employees in the exercise of the rights guaranteed by Section 7 of the Act, the Board ordered petitioners to cease from dominating, interfering with, or contributing support to either the Plans or "any other labor organization," and to cease from "in any other manner interfering with, restraining, or coercing the employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing," etc., as guaranteed by Section 7. The order is in substantially the language of Sections 7, 8(1) and 8(2), the subdivisions which petitioners are found to have violated. Violation of Sections 8(3), 8(4) and 8(5) is neither found nor forbidden. The act would be ineffectual if each new example of interference, domination, etc., required a new hearing and a new order. Under the Railway Labor Act, a similar statutory purpose [12] was enforced by a similar order, which the Supreme Court upheld over the protest of the employer. [13] Accordingly, Labor Board orders in the form used here have repeatedly been enforced by the Supreme Court. [14]
National Labor Relations Board v. Express Publishing Co. [15] does not overrule *648 those cases. [16] The Court there held that a mere refusal to bargain with representatives of employees, in violation of Section 8(5) of the Act, though it might constitute a technical interference with collective bargaining in violation of Section 8(1), did not justify an order forbidding an entirely different type of unfair labor practice which the employer had not committed or threatened, viz., interference with the right to form or join unions, etc., guaranteed by Section 7. There was no evidence of such interference, or of union domination. The Court held that the Board's order must be limited to unlawful acts of the "same type or class" as the acts which the employer had committed. The Court expressly recognized that "Having found the acts which constitute the unfair labor practice the Board is free to restrain the practice and other like or related unlawful acts * * * the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the employer in the past." That is what the Board has done here.
Petitioners contend that a part of the Board's order by its terms would extend to every plant and works of the Company throughout the United States, and is therefore invalid. As we understand the order, its effect is limited to the ten named plants. [17] We express no opinion on the question whether it might not properly have been extended to the Company's other plants.
III.
The Corporation petitioner, which operates no physical properties, contends that the Board's order is, at all events, invalid as to it. Though the Company is a wholly-owned subsidiary of the Corporation, and to a large extent both have the same officers, the Corporation's responsibility does not turn on those facts. Section 2(2) of the Act, 29 U.S.C.A. § 152 (2), defines "employer" as including "any person acting in the interest of an employer. * * *" The Board found that the Corporation, as well as the Company, had dominated, interfered with, and contributed support to the Plans, and had expressed to the Company's employees an animus against the S.W.O.C. These findings are supported by substantial evidence. Labor relations of the Corporation's subsidiaries have long been subject to a uniform policy emanating from it. Support of the Plans, with opposition to other unions, has been the essence of this policy. In 1918, when the Plans were new, a pamphlet distributed to employees of the Company was entitled "Representation of Employees in Plants of the Bethlehem Steel Corporation." On the inside of the cover was a chart entitled: "Chart Illustrative of Representation of Employees of the Bethlehem Steel Corporation and Subsidiary Companies." When McClintic-Marshall, now merged in the Company petitioner, first became a subsidiary of the Corporation petitioner in 1931, the subsidiary's president distributed to its employees a leaflet containing a facsimile of a letter to him from E. G. Grace, the president of the Corporation petitioner, as such. This letter said: "I desire to call to your attention certain advantages now available to your organization as a subsidiary of Bethlehem Steel Corporation. Bethlehem, over a period of years, has developed a program of industrial relations embracing many plans for the economic betterment of the employee. Among these are plans that provide a common meeting ground for the adjustment of questions affecting the employee's work. * * * It is a pleasure to extend * * * the * * * privileges to the McClintic-Marshall organization, on the same basis as now enjoyed by other members of the Bethlehem family." Accordingly, McClintic-Marshall's President said to its employees: "New advantages in working conditions and financial protection are now available to the employees of the McClintic-Marshall Corporation, as communicated to our organization by a letter from Eugene G. Grace, President of Bethlehem Steel Corporation. As a subsidiary of the Bethlehem Steel Corporation, McClintic-Marshall employees are entitled to a series of benefits which have been developed successfully *649 in other companies of the Bethlehem family over a period of years. These privileges include: Plan of Employees Representation * * * Relief Plan * * * The Corporation will assume the entire cost of administration * * * Pension Plan financed entirely by the Corporation * * * Saving and Stock Ownership Plan."
The Corporation petitioner, in its Bethlehem Review, which carries the subtitle "A Bulletin of News for the Employees of the Subsidiary Companies of the Bethlehem Steel Corporation", has repeatedly represented to those employees that the Plans are a part of the Corporation's policy. The first issue of the Review, in April, 1924, begins with the statement, over the signature "E. G. Grace, President," that "The officers of the Bethlehem Steel Corporation and its Subsidiary Companies have long felt the need of some means of direct communication with their employees by which facts of general interest could be brought to the attention of everyone in the Corporation." The Corporation's Bethlehem Review for September 25, 1933, states: "Fifteen years ago Bethlehem started its Employees' Representation Plan. Today the Plan is in effect in the various operating units in steel manufacturing, ship building, mining, and McClintic-Marshall."
A booklet entitled "Ten Years' Progress in Human Relations — A Review of Some Accomplishments under the Bethlehem Plan of Employee Representation" was, according to its title page, "Distributed at 1928 annual joint conferences of employee representatives and management representatives of Bethlehem Steel Corporation." This same booklet contains a heading "Employment Policy" followed by "This is the policy of Bethlehem Steel Corporation."
Although the Corporation's conduct prior to the passage of the National Labor Relations Act obviously could not violate the Act, that conduct goes to show that intervention in the management, and specifically in the labor relations, of the Corporation's subsidiaries was an established Corporation practice. The Act was passed on July 5, 1935. On July 3, 1936, the Bethlehem Review printed a letter from Grace, as president of the Corporation, to the employees of the Corporation's subsidiaries, which said: "* * * Anything that disturbs our present condition will imperil the interests of all. Undoubtedly you have seen that professional labor leaders have publicly announced a campaign to unionize the employees of the steel industry. * * * We believe that no worker should be required to pay tribute to anyone or to any organization for the right to work. * * * The industry issued through the American Iron and Steel Institute the statement reprinted in this number of the Review. Our management firmly believes in the views expressed in that statement. They express the policies which have controlled our dealings and relationships for many years. The effectiveness of your existing Representation Plans, for the proper settlement of all questions arising between any of you and the management throughout 17 years of uninterrupted operation has been outstanding, and the results speak for themselves. * * * We will assist you in every way to continue the present proven method of dealing with our mutual problems." The Institute statement which the Corporation's president, on behalf of its management, thus adopted and commended to the employees of the Company, included the following language: "The overwhelming majority of the employees in the Steel Industry recently participated in annual elections under their own representation plans and elected their representatives for collective bargaining. The elections were conducted by the employees themselves by secret ballot. One of the purposes of the announced campaign is to overthrow those plans and the representatives so elected. The Steel Industry is recovering from six years of depression and huge losses, and the employees are now beginning to receive the benefits of increased operations. Any interruption of the forward movement will seriously injure the employees and their families and all businesses dependent upon the Industry, and will endanger the welfare of the country. The announced drive, with its accompanying agitation for industrial strife, threatens such interruption." In the Review for March, 1937, Grace, as president of the Corporation, said to the employees of the subsidiaries: [18] "The Employees' Representation *650 Plans which were established in our plants nearly twenty years ago continue to operate with ever-increasing effectiveness." In the Review for January 15, 1938, Grace, again as president of the Corporation, said to the employees of the subsidiaries: "As you know, we take great pride, and justly I feel, in the fact that nearly 20 years ago we accepted the principle of collective bargaining which is much discussed today. In the application of that principle during those years we have dealt with you through the Representatives whom you have elected under your Plans of Employees' Representation on all questions having to do with wages, hours and working conditions. For the last several months that long-established method of dealing with you has been the subject of hearings before the National Labor Relations Board. The Company is defending itself, and at considerable expense, against what we believe to be an unfounded charge, made by the Steel Workers Organizing Committee, that the Company is dominating your collective bargaining Plans. It is regrettable that your Plans are being put to like expense in defending at those hearings their independence and the type of collective bargaining which has been in effect under them for many years."
In short, the Corporation, over a long period, actively supported the Plans and actively opposed efforts of the men to join other labor organizations. It thereby made the Company's domination, interference, restraint, etc., its own. From 1935 to the time of the hearing, the Corporation was a persistent violator of Sections 8(1) and 8(2) of the Act. It follows that the Board's order directing it to refrain from similar violations was valid. Petitioners apparently concede that the Corporation pays the entire cost of a Pension Plan, and the entire administrative expense of a Relief Plan, for the employees of its subsidiaries; also that a Vacation Plan and a Savings and Stock Ownership Plan, as well as the Plans of Employees' Representation, have been put into effect in all the subsidiaries [19] . In our opinion the evidence of the Corporation's habitual intervention in the Company's labor relations justified the Board in finding that the Corporation was responsible for the Company's dealings with the Pinkertons and the Mayor of Johnstown; but the order is valid irrespective of that finding.
In Gannett Company, Inc., v. National Labor Relations Board, Dec. 9, 1940, ___ App.D.C. ___, 118 F.2d 937 , on which the Corporation relies, this court held that there was no evidence that the holding corporation had affirmatively participated in the unfair practices of its subsidiary; the record indicated that it had merely failed "to assert its corrective powers after the event." The contrast with the facts here is obvious. Here, as in National Labor Relations Board v. Lund, 8 Cir., 103 F.2d 815 , which we distinguished in the Gannett case, the sole stockholder (in this case the Corporation) personally interfered with unionization. Because it interfered, the stockholder is an "employer" within the definition in the Act and subject to the Board's order. [20]
IV.
The order is directed not only against petitioners but also against their officers, agents, successors, and assigns. Petitioners object to the inclusion of "successors and assigns." The Supreme Court has repeatedly enforced orders of the Board which include that term. [21] "* * * The strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or operation of law brings about change of ownership in the employing agency." [22] An *651 employer cannot be permitted, by reorganization or transfer, to nullify the Board's order and make it necessary to start new proceedings against the new owner of the business. [23] The order, of course, is not intended, and will not be interpreted, to bind persons who have no notice of it, or who have not acted in concert with petitioners. [24]
V.
Petitioners contend that they did not have a fair hearing, largely on the ground that Trial Examiner Bloom was biased and prejudiced. As an example of bias, they complain that their applications for subpoenas directed to one McDonald, an S.W.O.C. officer, were denied. They wished to question him regarding the dates, scope, duration and terms of the agreements entered into since January 1, 1937, between S.W.O.C. and the United States Steel Corporation or any of its subsidiaries. They also sought to require him to produce the documents themselves. Later, Board counsel supplied petitioners' counsel with the documents, petitioners' counsel accepted them and offered them in evidence, and the Examiner excluded them. As the Board found, these agreements were irrelevant; the United States Steel Corporation, its subsidiaries, S.W.O.C., and the agreements were not on trial. A hearing is not made unfair by a refusal to summon a witness in order that he may be asked irrelevant questions. [25] Though the Board did not apply to its own attorneys its rule that applications for subpoenas must specify the nature of the facts to be proved, no unfairness to petitioners is shown to have resulted. The Board's supervisory power over its own agents enables it, irrespective of such a rule, to prevent obstructive tactics on their part.
Petitioners say that the Trial Examiner badgered their witnesses and subjected them to sharp cross examination. The record does not sustain this charge. We quote in full one example of what petitioners describe as sharp cross examination:
"Q. (By Trial Examiner Bloom) I think you have told us in general the conditions after that Saturday when the mills were closed. Were you reasonably familiar with the general conditions the following week, say beginning with that Saturday and going until the following week? A. Perhaps fairly so.
"Q. When were the mills reopened? A. That I don't remember, now, wait a minute, I can place it approximately, but I can't place it exactly.
"Q. If you — A. The newspaper ad. appeared Thursday.
"Q. You mean the Thursday — A. The `We protest' ad.
"Q. You mean the Thursday following the closing of the mills? A. I think that is it, I would have to refer —
"Q. I am assuming that it was Thursday. A. Yes.
"Q. I mean, assuming that was Thursday; with that in mind, when did the mills reopen? A. Perhaps it was late Thursday, perhaps it was Friday, I would not, I can't, maybe it was Saturday, I can't just tell.
"Q. How were things in Johnstown during that period, from the time of the closing of the mills to the time of the reopening of the mills? A. All right."
The foregoing colloquy, of which petitioners complain, was immediately followed by this:
"Trial Examiner Bloom: That is all, thank you. Anything further?
"Mr. Shawe: Nothing further.
"Mr. Moore [of petitioners' counsel]: No.
"Trial Examiner Bloom: All right, thank you very much. You are excused."
Petitioners object particularly to the "cross examination" of the witness Williams. The part of the record of which they complain includes this colloquy between *652 the Examiner, the witness, and Mr. Broun of petitioners' counsel:
"Trial Examiner Bloom: What were the circumstances under which you saw the minutes, please?
"The Witness: I sat right on the other side of the secretary when he was writing them.
"Trial Examiner Bloom: I see.
"Mr. Broun: Mr. Examiner, I would like to have you develop the matter, I didn't know that Mr. Williams was present at the meeting.
"Trial Examiner Bloom: Well, it states right here at the top.
"Mr. Broun: I didn't look at the minutes, as a matter of fact, I would be glad to develop it myself or have you go ahead.
"Trial Examiner Bloom: As long as I started I might as well finish it, there are just a few points.
"Mr. Broun: Very well, sir."
Some other questioning by the Examiner, to which petitioners now object, was likewise undertaken and carried on with the approval of petitioners' counsel.
Petitioners complain of such questions and remarks as "Why did you care if the men voted or not?"; "What particular affair was it of yours?" "This man is secretary of the Plan and doesn't even know who kept the minutes of the Plan"; "He couldn't possibly know that accurately." They complain that after the decision in the Greyhound case, the Examiner expressed the view that time and expense might be saved by discovering whether or not the Bethlehem Plan and the Greyhound Plan were substantially identical. He did not assume to decide the question. [25a] When the Examiner rejected questions asked by counsel for petitioners, and framed substitutes, petitioners urge this as showing the Examiner's bias against them. But when the Examiner rejected questions asked by counsel for the Board, and framed substitutes, petitioners urge this also as showing his bias against petitioners. We are then told that "he associated himself with the attorney for the Board in the prosecution of the Board's case * * * taking over the cross examination on behalf of the attorney for the Board when the latter found himself in difficulty." Petitioners make other comparable complaints. It is the function of an examiner, just as it is the recognized function of a trial judge, to see that facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made. If the spirit and conduct of the Examiner throughout this case were reversible error, few administrative and few judicial proceedings could withstand attack. The alleged manifestations of feeling on the part of the Examiner, which petitioners have culled from a record of 11,000 pages, are mild indeed. [25b] They did petitioners no harm; for undisputed testimony, adduced with unquestioned propriety, conclusively proved the Board's case. There is no suggestion that the Examiner committed any gross breach of decorum. The mere existence and reflection of feeling in the course of a trial [25c] does not disqualify a presiding officer or call for reversal. [25d] It does not constitute "bias and prejudice." Petitioners' charge of bias and prejudice is without foundation.
It is also an afterthought. If petitioners had thought the Examiner biased or prejudiced they should, and doubtless *653 would, have said so and demanded that the Board appoint a different examiner. They raised no such contention during the hearing, although they promptly appealed to the Board from the Examiner's refusal of the subpoenas referred to above. By raising the contention later they make, in effect, an unwarranted charge of negligence against their trial counsel.
Petitioners complain of the extent to which the Board availed itself of the services of subordinates in the process of considering the case and reaching a conclusion. The petition alleges that the Board "did not judicially consider, weigh or appraise the evidence" in making its decision, but relied upon conclusions of fact and law made by subordinates, and that petitioners were given no opportunity to inspect or argue against these conclusions. The Board's answer neither admits nor denies these allegations, on the ground that they are irrelevant and beyond the scope of judicial inquiry. [26] Petitioners' contention was presented in the same way, and rejected, in Bethlehem Shipbuilding Corp., Limited, v. National Labor Relations Board. [27] There are other cases to like effect. [28] The Act requires only a hearing, before the Board or an agent designated by the Board, and findings by the Board which are supported by evidence. It is not the function of a court to "probe the mental processes" of an administrative officer "in reaching his conclusions if he gave the hearing which the law required." [29]
VI.
Petitioners have moved [30] for leave to adduce, as additional evidence, items excluded by the Examiner and the Board. (a) The S.W.O.C. agreements with the United States Steel Corporation and its subsidiaries we have dealt with above, in connection with the Examiner's refusal to issue certain subpoenas. (b) Petitioners sought to ask the Employees' Representatives at the Cambria Plant a series of about 150 questions, designed to elicit whether the witnesses were conscious of being (or, as petitioners put it, were) influenced, restrained, interfered with, coerced, or dominated by petitioners. It was stipulated between counsel and the Examiner that the witnesses would have answered in the negative. Since the organization, structure, and Company support of the Plans ensure Company dominance and violate the Act, this testimony would have been irrelevant. (c) Petitioners object to the following ruling of the Examiner, which we quote from the record, with reference to the Cambria strike: "Certain testimony was adduced by the Board to the general effect that no violence occurred during the strike, that no disorders took place on the picket lines, that no stones were thrown. It is apparent from the testimony of some twenty-five witnesses produced by the Respondents [the present petitioners] that the testimony offered by the Board does not accurately reflect the facts. I find as a fact that violence did occur during the strike, that there was disorder, that stones were thrown on the picket lines. The Board, on this state of the record cannot find as a fact that there was no violence, no disorder during the strike. In my opinion it would be a needless waste of time, considerable expense to all persons concerned, and for no useful purpose, to have further testimony concerning the fact that violence occurred during the strike, and I accordingly bar further testimony along such line." The Board, in turn, found "that the existence of violence and the apprehension of violence induced by newspaper reports of violence in strikes at other steel plants were two of the factors leading to the *654 formation of the Citizens' Committee" at Johnstown. It is not clear that violence in the strike was relevant. Even if it was relevant, the Examiner's refusal to admit cumulative testimony was within his discretion and did not injure petitioners. (d) Petitioners sought to ask members of the Citizens' Committee, and the manager and assistant manager of the Cambria plant, a series of questions calling for their conclusions as to whether the Citizens' Committee was connected with the Company, or acted at the behest or for the benefit of the Company, or had any business transactions or connections with the Company, other than financial contributions from it. It is not clear that the evidence was relevant. In any case, its exclusion did not injure petitioners, for the Board expressly refused to find that petitioners induced or participated in the formation of the Citizens' Committee. We find no prejudicial error in any of the Examiner's rulings. No procedural incident in the entire case had any conceivable effect upon the result of the case. The motion for leave to adduce additional evidence is denied.
We have considered the other contentions of the petitioners, but it is not necessary to discuss them. The proceedings were conducted with careful regard for fairness and the law. Petitioners' defiance of the law as stated in the Wagner Act and plain decisions of the Supreme Court was clearly shown. The Board's order provides the only lawful remedy and will be enforced.
So ordered.
STEPHENS, Associate Justice (dissenting).
In my opinion the order of the Board should be set aside and the cause remanded for a new hearing. I think the hearing was vitiated by bias of the examiner, and by the Board's requirements concerning subpoenas, and that prejudicial error was committed by the denial to the petitioners of the right to adduce certain testimony in defense of the Board's charges, and that the findings are defectively framed. Even if a fair hearing and the admission of all necessary and relevant testimony and properly drawn findings be assumed — assuming, that is, that the case can properly be decided on this record — I think that there was no substantial evidence of domination or interference with the formation or administration of labor organizations of the petitioners' employees, in violation of Section 8(2) of the National Labor Relations Act, and in consequence no basis in the case for an order of disestablishment; and in my view there is no basis in the record for a cease and desist order in respect of contribution to the support of labor organizations of the employees, in violation of Section 8(2); and I think there is no substantial evidence of interference with the rights of self-organization and collective bargaining of the employees, through contribution to the Johnstown Citizens' Committee or through surveillance, in violation of Section 8(1); and assuming substantial evidence of domination and interference, in violation of Section 8(2) and 8(1), in my opinion the present order is nevertheless too broad.
I
BIAS OF THE EXAMINER AND SUBPOENA REQUIREMENTS
Bias of the examiner. The examiner who presides at a Board hearing and by determination of the issues and by rulings as to the admissibility of evidence makes up the record for the consideration of the Board, and who by his intermediate report gives guidance to the Board in respect of its decision of the case, acts in a judicial capacity. As was stated in Oakley v. Aspinwall, 1850, 3 N.Y. 547, 549 , and reiterated in People v. Naimark, 1913, 154 App. Div. 760, 763 , 139 N.Y.S. 418, 420 , "the first idea in the administration of justice . . . is that a judge must necessarily be free from all bias and partiality. He cannot be both judge and party, arbiter and advocate in the same cause." A trial by a biased judicial officer is not in conformity with due process. Tumey v. Ohio, 1927, 273 U.S. 510, 535 , 47 S.Ct. 437 , 71 L.Ed. 749 , 50 A.L.R. 1243 , 1256; Whitaker v. McLean, 1941, ___ App.D.C. ___, 118 F.2d 596 . And see Morgan v. United States, 1938, 304 U.S. 1 , 58 S.Ct. 773, 999 , 82 L.Ed. 1129 .
The record discloses the following concerning the conduct of the examiner at the hearing in this case:
(1) Extent and method of examination of witnesses: The examiner interrogated about 40% of the witnesses called for the petitioners. His examination covered approximately 400 pages of the record, including some 20 or more in the examination of each of the petitioners' witnesses Stanton and Campbell, some 75 in the examination of the petitioners' witness Williams. Much *655 of this questioning was in the nature of cross-examination. In contrast with this the examiner did not, except in isolated instances, question the witnesses for the Board, and in such instances he refrained from cross-examination. The examiner's questioning of the petitioners' witnesses often occurred at the end of cross-examination (frequently after one or more re-cross-examinations) by the Board's counsel — after it was apparent that the latter did not desire to examine further. At times the examiner interrupted cross-examination of the petitioners' witnesses by counsel for the Board and continued the examination himself. He interrupted direct examination by counsel for the petitioners to interpose cross-examination. He pursued a line of questioning which had not been pursued by counsel for the Board during the latter's cross-examination. He suggested a possible avenue of cross-examination to counsel for the Board, promptly adopted by such counsel. The examiner conducted a lengthy and searching examination of the petitioners' witness Stanton in an obvious effort to impair the credibility of his testimony and to put a more favorable light upon the action of the Governor of Pennsylvania in ordering a shut-down of the Cambria Plant after the Johnstown strike had failed to achieve that end. The examiner made a similar effort in his cross-examination of the petitioners' witness Nicely.
It is of course not as such improper — indeed it is at times necessary — for an examiner or judge to examine or cross-examine, and he may even on his own motion call witnesses. It is his duty to get at the truth of the case. His own examination may in some instances aid in ascertaining the truth. But this alone should be his objective. He should exercise with restraint his authority to conduct an examination himself. He must not be advocate for the one side or the other. He must be judge, and that only, never a partisan. Montgomery Ward & Co. v. National Labor Relations Board, 8 Cir., 1939, 103 F.2d 147, 156 . The Board was represented in the hearing before its examiner by several members of its own legal staff. There is no contention by the Board that the examiner's questioning of the petitioners' witnesses was made necessary by any lack of competency on the part of the Board's counsel. Cf. National Labor Relations Board v. Washington Dehydrated Food Company, 9 Cir., 1941, 118 F.2d 980 .
(2) Improper questions: The examiner extensively cross-examined witnesses who were employees of the Company petitioner concerning the provisions of the Cambria Plan and their operation, despite the fact that most of such witnesses admitted that they did not have any technical knowledge of the provisions of the Plan, and despite the fact that some of them were not eligible to participate in the Cambria organization and that none had testified under direct examination concerning the matters as to which the examiner was cross-examining them. The examiner was apparently attempting to demonstrate that the Plan would not work as a satisfactory collective bargaining method. The questions by the examiner following direct examination by counsel for the petitioners frequently far exceeded the scope of the direct examination, and in one instance went beyond the issues in the case. Often the examiner's questions sought inadmissible testimony, for example, when he asked a non-expert witness if he considered the Plan of Employees' Representation at the Cambria Plant a labor union. Obviously such a question could be answered in factual aspect only by an expert, in legal aspect only by the Board or the courts. Again, the examiner asked questions, of a lay witness for the petitioners, concerning the legal effect of provisions of the Cambria Plan, despite the fact that the Plan itself was in evidence — therefore the examiner and Board could determine its legal meaning — and numerous hypothetical questions calling for the witness' opinion concerning various states of facts which had never existed. This examination sought to put into the record a non-expert interpretation of a written document. In one instance the examiner attempted to get a witness to supply a word in his testimony which would be prejudicial to the petitioners' case. [1] *656 Often counsel for the petitioners were obliged to interpose objections to the examiner's questions and the examiner was then in the position of being obliged to pass upon the propriety of the very questions which he himself was asking.
(3) Discrimination in rulings: The examiner discriminated between the petitioners and the Board in respect of cross-examination by permitting counsel for the Board to go beyond the scope of the direct examination but confining the petitioners' counsel to the limits of the direct. The examiner forbade the petitioners to put into the record written offers of proof with respect to violence and general lawlessness at the Johnstown strike, refusing even to permit a final offer on this subject to be marked as an exhibit, thus apparently attempting to deny the petitioners the right to perfect a foundation for review of the ruling that the offered testimony was inadmissible. I do not say that the ruling itself because incorrect (as I point out in topic II that it was) necessarily evidences bias. A judge or examiner may make a mistaken ruling on the admissibility of evidence without convicting himself of unfairness. But he cannot fairly deny to a party against whom he rules the right to make a record of the ruling for the purpose of an appeal.
During cross-examination of the petitioners' witness Campbell, counsel for the Board offered in evidence an unsigned article clipped from the editorial page of a Johnstown newspaper. The author was not produced by counsel for the Board to identify the article, but the examiner stated that he was "satisfied" that the alleged author, one Andrews, had in fact written it, and the examiner received it in evidence over the objection of the petitioners. Yet a later effort by counsel for the petitioners to introduce similar matter during presentation of the Board's case was not successful: During his cross-examination of the Board's witness Jordan, counsel for the petitioners offered in evidence a newspaper article (parts of which had been read into the record by counsel for the Board) which had been written by Jordan himself, and which in part at least bore on the same subject matter as portions of the above mentioned editorial article attributed to Andrews, and which had appeared in the same newspaper as the Andrews editorial. Nevertheless the examiner, *657 upon objection by the Board's counsel, excluded this article. Moreover, although the examiner stated when he admitted the Andrews article that it was received simply to show that Andrews had made the statements (that is to say, merely as proof of the fact that the statements were made and not as proof of their truth), yet in the intermediate report the examiner used this article as proof of the facts contained in it, and the Board's decision did likewise. Thus both the examiner's limitation and the hearsay rule were ignored. It is further noteworthy that upon the faith of the contents of the Andrews article as true, rested one of the findings of the Board with respect to the Citizens' Committee, which is the subject of discussion in topic VII below. [2]
(4) Prejudging the case: Before the principal case for the petitioners was complete on the facts the examiner abetted and joined with counsel for the Board in contending that National Labor Relations Board v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 , decided during the progress of the hearing, was determinative of the instant case. I set out the colloquy in the margin. [3] I do not by this suggest *658 that a judge or examiner may not properly suggest to counsel that a Supreme Court decision may bear vitally upon the issues involved in the hearing; but certainly he should not decide that such a decision is controlling on the facts before he has heard all the evidence.
I conclude that the order of the Board was vitiated by the unfairness of the examiner. I bear in mind the burden upon an examiner, especially where — as in the instant case — a hearing is lengthy, ill feeling is exhibited between counsel for the respective parties, and where the factual aspect of the case is complex and the testimony and documentary evidence voluminous. It is not easy for an examiner through such a proceeding to maintain his composure at all times and to accomplish full consistency of ruling. I bear in mind also that an examiner has — must have — broad discretion in respect of the manner of conducting a hearing, extent of cross-examination, and the like. I do not say that the examiner in this case was malevolent; and his partisanship did not especially evidence itself in sarcastic and rough treatment of witnesses, as did that of the examiners in Inland Steel Co. v. National Labor Relations Board, 7 Cir., 1940, 109 F.2d 9 , and in Montgomery Ward & Co. v. National Labor Relations Board, cited above, from both of which I quote below. But that the examiner in this case was a partisan anxious for the success, and actively aiding in the development, of the Board's case, I am with regret obliged to conclude.
The Board contends that even if the examiner was biased, his bias was waived by the petitioners by failure to object and by the absence of a showing of actual prejudice. These contentions are, I think, not supportable. Objection to the bias of the examiner was made by the petitioners at the earliest time that it could be made to *659 anyone who might be willing, and who had the power, to correct it by ordering a rehearing before another examiner, to wit, to the Board at the time of the filing of the exceptions to the examiner's intermediate report. The requirement that in legal proceedings an objection shall be made at the time of an asserted error or otherwise be waived, is to give the judge or trial examiner, as the case may be, an opportunity to correct the error at the time of its commission and thus save a retrial. But the law does not require the doing of a futile thing. A biased examiner cannot correct his own bias. There is no cure for bias except rehearing before a fair officer. On this subject, the Circuit Court of Appeals for the Eighth Circuit said in Montgomery Ward & Co. v. National Labor Relations Board, cited above:
". . . These matters were called to the attention of the Board in exceptions filed to the intermediate report of the examiner. They were not recognized nor rectified in any instance. We see no way in which the injustice done by this character of hearing can be righted except by setting aside the order of the Board in entirety and remanding the case to it for a new hearing before another examiner and a determination by the Board upon the record to be made upon such new hearing. The delay necessary to a new hearing is regrettable but avoidance of delay cannot justify a tolerance of violation of rights fundamental in the administration of justice." [103 F.2d at pages 156, 157.]
It was discerningly remarked in National Labor Relations Board v. Washington Dehydrated Food Company, cited above, that:
"It may truly be said that respondent made no strenuous objection to such conduct of the Trial Examiner during the course of the hearing, but such objection may not always be necessary — especially where it would be of no avail. Furthermore, `failure of counsel . . . to object may well have been due to their feeling that that course might antagonize the Examiner to the detriment of their clients.' Cupples Co. Mfrs. v. National Labor Relations Board, 8 Cir., 106 F.2d 100, 113 ."
As to the contention that there was no showing of prejudice: There is a showing of prejudice in the use by the examiner and the Board of the Andrews article above described. But the law does not require objective demonstration of actual prejudice from the bias of a judge or examiner. The bias is itself prejudice, because the due process clause of the Fifth Amendment to the Constitution guarantees a fair hearing and there can be no fair hearing before a biased officer. The law does not speculate as to the consequences of bias, once it is shown. On this subject it was said in Inland Steel Co. v. National Labor Relations Board, cited above:
"The Board argues that even though the criticism directed at the Trial Examiner be justified, yet the order should not be set aside because petitioner has failed to prove that its case was prejudiced, or that any evidence favorable to it was kept from the record. . . . To say that petitioner was not prejudiced because of the unfair and biased manner in which the case was tried by the Trial Examiner, is purely a matter of speculation." [ 109 F.2d at page 21 .]
The Board further defends the order by pointing out that the examination of witnesses by the trial examiner covered but a small portion of the record — on a basis of pages — excluding documentary evidence, some 5%. This contention is also, I think, without merit. Once bias exists in a judicial officer, hearings before him are vitiated no matter how short the time during which the bias happened to disclose itself.
Subpoena requirements. The rules of the Board (Article II, Section 21) in effect at the time of the hearing in this case provided in respect of applications for subpoenas:
"Such applications [for subpoenas] shall be timely and shall specify the name of the witness and the nature of the facts to be proved by him, and must specify the documents, the production of which is desired, with such particularity as will enable them to be identified for purposes of production." [Rules and Regulations, Series 1, as amended, April 27, 1936] [Italics supplied]
The examiner applied this requirement in respect of a subpoena duces tecum and a subpoena ad testificandum to one McDonald, who was an official of the Steel Workers Organizing Committee, hereafter for convenience referred to as S.W.O.C. and a person therefore not likely to be willing to be a voluntary witness for the petitioners. And not only was the requirement of specification of the nature of the facts to be proved enforced by the examiner as a condition precedent to the issuance of the subpoenas, but also the examiner declined to issue the subpoena to McDonald for the reason that he, the examiner, did not "think the matters sought to be proven are particularly relevant to these proceedings." The ruling by the examiner was sustained by the Board. Moreover, the requirement that subpoenas should state the nature of the facts to be proved was applied unilaterally, that is, against the petitioners, and not in respect of subpoenas issued at the instance of the Board itself.
The right of every citizen in both civil and criminal cases to have compulsory *660 process for the attendance of witnesses is an essential feature of the Anglo-American legal system. 8 Wigmore, Evidence (3d ed.1940) §§ 2190-1. The Sixth Amendment to the Constitution expressly preserves that right in criminal cases. And in both civil and criminal cases the right to compulsory process is one which inheres in the concept of due process of law preserved to all persons under the Fifth Amendment. Cf. Powell v. Alabama, 1932, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 , 84 A.L.R. 527 . So absolute is the duty of every person to appear and give testimony on matters within his knowledge when subpoenaed that the witness himself cannot refuse to appear and testify on the ground that the evidence sought of him is immaterial or irrelevant. Nelson v. United States, 1906, 201 U.S. 92, 115 , 26 S.Ct. 358 , 50 L.Ed. 673 . It is of course true that the right to process, like other rights, guaranteed by the Constitution, is not absolute. Reasonable conditions can be attached to constitutional rights. A familiar example is the requirement of the payment by persons not appearing in forma pauperis of a moderate fee as a condition of the right to a jury trial, and the requirement that a demand for a jury be made seasonably in advance of the date of trial. These requirements of fee and seasonable demand are made, respectively, in order to assist the state in meeting the expense of jury trials, and to serve the convenience of both court and jury. Seasonable application for the issuance of process may be required, again, for the purpose of avoiding delay in trials. Neufield v. United States, 1941, ___ App.D.C. ___, 118 F.2d 375 . And the condition requiring specification of documents in the subpoena duces tecum was not an unreasonable protection of the convenience of the custodian of the documents.
But no conditions can be attached to a constitutional right which will defeat or materially limit it. And to require statement of the nature of a witness' testimony or the nature of documents as a condition precedent to obtaining a subpoena will in many instances defeat the right to process, especially where a witness is probably hostile. Parties or their counsel seeking evidence are not always able to know the nature of supposedly available testimony without first talking to the proposed witness, and may not be able to talk with him unless his attendance can be compelled by process. Moreover, to require a party applying for a subpoena to disclose the nature of the facts to be proved has the necessary effect of compelling such a party either to rely upon voluntary witnesses or to disclose to the Board in advance the strategy and plans for the conduct of his defense. A lawsuit or Board hearing is of course not a game, but it is certainly a controversy. For the Board thus to obtain advance knowledge of the case of a party on trial before the Board, when that party can have no advance knowledge of the Board's case, is contrary to elementary principles of fair play. Under the National Labor Relations Act the Board is not only judge, it is also party and prosecutor. It signs the complaint charging the unfair labor practices and then through its counsel prosecutes the case before its examiner and itself. In order to perpetuate testimony or to prevent surprise and to save the time of parties and tribunal by eliminating unnecessary issues discovery of evidence in advance of trial is permitted in civil proceedings in many states and under the Federal Rules of Civil Procedure for the District Courts of the United States (Rules 26 and 34), 28 U.S. C.A. following section 723c, but it is allowed to both parties to the suit.
To attach as a condition precedent to the obtaining of process a showing of the relevancy of the testimony sought is to put the issuance of subpoenas within the discretion of the issuing officer or Board because — and this is especially true in cases where issues are as broad as in the instant type of case — whether testimony is relevant or not is often a close question. I point out later in this opinion that the offered testimony of McDonald was relevant; but because the examiner and the Board thought it was not, the petitioners were denied process against McDonald, and thus denied the right of presenting a proper part of their defense to the Board's charges.
The unilateral application of the rules with respect to subpoenas is also, in my opinion, indefensible. There is no more elementary proposition in Anglo-American law than that the Government itself in its prosecution in its own tribunals of cases against the citizen shall be on terms of equality with the citizen before the law; and this applies not only to substantive but also to procedural rules. In Inland Steel Co. v. National Labor Relations Board, cited above, the Seventh Circuit Court of Appeals, in referring to the requirement of the Board that an application for subpoenas *661 made by a party must state the nature of the facts to be proved by the witness, said:
". . . a burden was placed upon one side which did not exist as to the other in the matter of obtaining witnesses. The situation may be aptly stated thus: Petitioner, in order to obtain a subpoena, was required to present to its opponent an application therefor with notice as to what it expected to prove by the witness desired to be subpoenaed. Thus, it was within the discretion of the Board (the prosecutor, if not a party) to determine when process should issue in favor of the one to be condemned." [ 109 F.2d at page 19 .]
The court held the requirement unwarranted, and in part a basis for reversal for denial of fair hearing.
The Board defends the subpoena requirements not as such but by asserting that there was no showing of prejudice as a result of them. It is true that so far as the subpoena duces tecum was concerned, the documents were otherwise obtained. But to require a showing of prejudice would put the party applying for a subpoena in an impossible situation. Often he would be unable to show the prejudice unless he could obtain the witness and thereby ascertain the nature of his testimony; and often he would not be able to obtain the witness without the process. This same point was made by the Board in Inland Steel Co. v. National Labor Relations Board, and was disposed of as follows:
". . . It is further argued by the Board that petitioner's complaint is without merit because there is no showing that evidence favorable to it was excluded. This argument begs the question. We are not now considering the extent to which petitioner was prejudiced, but whether it was, by such procedure, deprived of a substantial right, or whether the procedure employed placed it at a disadvantage in contrast with its opponent." [ 109 F.2d at page 19 .]
It is further urged by the Board that the conditions attached to the issuance of subpoenas are designed to prevent "obstructive tactics" and other abuse of the Board's subpoena power by parties, and that it is not necessary to apply such conditions to the Board's agents because the Board has ample supervisory power to prevent improper conduct by them. This is the familiar argument that the king can do no wrong. It has not met with favor in Anglo-American courts.
I therefore conclude that the order of the Board was vitiated not only by the unfairness of the examiner but also by the requirements concerning subpoenas, and that therefore, no matter what the inconvenience or delay, the order should be set aside and a new hearing had before another examiner and in the absence of the subpoena requirements mentioned. The essentials of justice can not be foregone for sake of expediency.
II
MOTION TO ADDUCE EVIDENCE
(1) As a part of its defense to the charge of domination and interference with the formation and administration of the Cambria Plan the petitioners sought to ask a series of 150 questions of each of a number of Employees' Representatives including one who was also Chairman of the General Body at the Cambria Plant, one who was also Secretary of the General Body, and one who was a former Secretary. These questions were intended to adduce testimony to the effect that no domination or interference occurred under the Plan.
By the first 126 of these questions the petitioners sought to prove that the witness was not influenced in any way in taking, or in refraining from taking, any action relating to the terms or conditions of employment of the employees — or relating to the formation or amendment of the Plan or to its administration or operation, or relating to the self-organization of the employees for the purpose of bargaining collectively or for other mutual aid or protection, or to the engaging by the employees in concerted activities for such purposes, or to bargaining collectively by such employees through representatives of their own choosing — by any one of 21 different facts, such as the fact that the witness was at any time paid by the petitioners, and not by the Plan or by someone else, for time spent conferring with other employees or with other Employees' Representatives or with representatives of the management, on matters relating to the employment of the witness or anyone else. There are set out in the margin the 20 other facts which were alluded to in the first 126 questions. [4] By questions *662 127 to 150 the petitioners sought to prove that no one whom the witness knew, or thought, was a representative of the petitioners or was acting in a supervisory capacity for them, ever in any way interfered with, restrained, coerced or dominated the witness in taking, or refraining from taking, any action relating to the terms or conditions of employment of the employees or relating to the formation or amendment of the Cambria Plan or to its administration or operation, or relating to the self-organization of the employees for the purpose of bargaining collectively or for other mutual aid or protection, or relating to the engaging by the employees in concerted activities for such purposes, or to the bargaining collectively by such employees through representatives of their own choosing. To these questions, upon the ground that they called for a conclusion of the witness, the examiner sustained objections made by counsel for the Board.
I think this ruling was erroneous. State of mind, intent, motive, reason for action and the like, when as a matter of substantive law in issue, can be testified to by a lay witness possessed of knowledge on the subject, and though there is some division of authority, such testimony is under the better view not objectionable upon the theory that it "usurps the function" of the trier of fact in respect of the ultimate issue in the case. 7 Wigmore, Evidence (3d ed.1940) §§ 1917-29; and see id. § 1963. And the state of mind, intent, motive, reason for action *663 and the like of a particular person may be established not only by the testimony of other persons but also by the testimony of that person himself. And see Note (1910) 23 L.R.A.,N.S., 367, 372 et seq. Objection made to this class of testimony, when given by the person himself, on the ground that, since his own state of mind can be known only to him, his possible falsification cannot be refuted, is without sound foundation. Wigmore, op. cit. supra, § 1965. Such an objection goes to weight, not to competency. Similarly, an objection that such a person cannot be an accurate judge of his own state of mind goes to weight alone. "The state of mind of a person, like the state or condition of the body, is a fact to be proved like any other fact when it is relevant to an issue in a case, and the person himself may testify directly thereto." 20 Am.Jur. 312, § 335. And cf. Crawford v. United States, 1909, 212 U.S. 183, 202 , 29 S.Ct. 260 , 53 L.Ed. 465 , 15 Ann.Cas. 392. Under this general principle a witness may testify as to the existence of influence on his mind. 22 C.J. 610-1, § 704. International Land Co. v. Parmer, 1909, 58 Tex. Civ.App. 70, 123 S.W. 196 ; Grever v. Taylor, 1895, 53 Ohio St. 621 , 42 N.E. 829 . In the instant case, whether the Employees' Representatives were wrongfully influenced in respect of and by the matters or persons referred to in the questions, was in issue under the charge of domination and interference with the formation and administration of the Cambria Plan. The gist of this issue was: What was the state of the will of the Employees' Representatives — was it in subjection to the will of the petitioners, or was it not? I point out under topic IV below that by "domination" and "interference" in the National Labor Relations Act is meant corruption or overriding of the will.
That the error in excluding this testimony was prejudicial cannot I think be doubted. The Board introduced evidence intended to prove actual domination under the Cambria Plan. The petitioners had a right to rebut it.
(2) In partial defense to the charge of domination and interference with the labor organizations comprised in the Plans the petitioners attempted to introduce in evidence exhibits marked for identification Nos. 251 and 252, and sought also to obtain the issuance of a subpoena ad testificandum to one David J. McDonald, Secretary-Treasurer of S.W.O.C. Exhibit No. 251 purported to be a collective bargaining agreement between S.W.O.C. and the Carnegie Illinois Steel Corporation. The petitioners asserted that the Board in National Labor Relations Board v. Republic Steel Company, 1938, 9 N.L.R.B. 219 , [5] had characterized the signing of that agreement as an "event of historic importance in the steel industry," and had quoted Clinton Golden, Regional Director of S.W.O.C. and the person who signed the charge in the instant case, as having referred to the agreement as the "standard collective bargaining contract" of S.W.O.C. Exhibit No. 252 purported to be an agreement between the United Automobile Workers and the General Motors Corporation and to be in terms substantially identical with the agreement Exhibit No. 251. The petitioners sought to prove by McDonald the date of execution, scope, duration, terms, and other provisions of each of these agreements and any amendments or modifications or supplements thereof, and the meaning and application of the provisions as construed and applied by the parties to such agreements; and the petitioners sought to show that the procedure provided for in the Plans was similar in essential elements to that under these agreements. The examiner refused to receive the exhibits in evidence and refused to issue the subpoena to McDonald. The Board affirmed this ruling upon two grounds: first, upon the theory that the contents of the agreements and the testimony of McDonald were irrelevant to the issue in the instant case as to domination and interference by the petitioners, since the Carnegie Illinois Steel Corporation and the General Motors Corporation were not parties in the instant case; and second, upon the theory that the Board was considering the provisions of the Plans in the light of the Plans as a whole and in the light of the history of their origin and of a long course of interference, and that similarity of the provisions of the Plans to any of the provisions of the Carnegie Illinois Steel Corporation or General Motors Corporation agreements would be of little value. The Board did not exclude the two exhibits or the testimony of McDonald upon the ground that collateral issues would be raised.
I think the examiner's ruling and the Board's confirmation thereof were erroneous. As to the first ground of exclusion — *664 if, as the petitioners sought to prove, the Board in the Republic Steel case had given its imprimatur to the Carnegie Illinois Steel Corporation and General Motors Corporation agreements, and if, as the petitioners sought further to show, the provisions and practices under such agreements were essentially the same as the provisions in and the practices under the Plans, then the approval given by the Board to the Carnegie Illinois Steel Corporation and General Motors Corporation agreements constituted in effect relevant expert approval of the Plans and their application as standard collective bargaining agreements and thus tended to confute the Board's charge against them. The second ground of exclusion was not meritorious because the offered testimony of McDonald would have shown not merely the structure of the agreements referred to, but also their application. This objection went to weight, not to admissibility. The Board having introduced evidence intended to prove that the Plans and the procedure thereunder dominated and interfered with the labor organizations comprised in the Plans, the exclusion of the exhibits and of the testimony of McDonald was denial of the right of the petitioners to rebut the Board's case, and was hence prejudicial error.
(3) In paragraph 15 of the complaint the Board charged that the petitioners, through their officers, agents and representatives had, during the strike of employees called by S.W.O.C. at the Cambria Plant, Johnstown, Pennsylvania, engendered, expressed and publicized opposition and hostility to S.W.O.C., its leaders, organizers and members; and the Board introduced evidence intended to prove that this was done by the petitioners through the formation and activities of a Citizens' Committee at Johnstown. To rebut this evidence the petitioners endeavored to introduce testimony showing general and extreme violence in Johnstown and vicinity during the period of the strike. When certain testimony had been elicited from the petitioners' witness Lawrence to the effect that there had been some civil disorder at Johnstown, the trial examiner interrupted and ruled that no further evidence would be received in the case concerning violence. The petitioners' counsel objected to the ruling and attempted to make a written offer of proof. The examiner would not even permit this to be marked or to go into the record. In several other instances during the hearing, the examiner forbade the petitioners to introduce testimony intended to show general and extreme violence in Johnstown and vicinity. The examiner's rulings were confirmed by the Board. As shown by an offer of proof printed in an appendix to the motion to adduce, the petitioners intended to call witnesses to show that there was a complete breakdown in law and order in Johnstown and vicinity. The items of violence sought to be proved were assaults and batteries of various types, trespasses on Company and other property, dynamiting, shooting, overturning automobiles, throwing stones and other missiles, breaking windows, stripping one man of all of his clothes in the middle of the night and ejecting him from an automobile into a public street, and general vandalism, together with an absence of adequate police protection. The ruling of the examiner was apparently made upon the ground that he had already determined in his own mind, and would recommend a finding by the Board, that there had been violence in Johnstown. He did so recommend and the Board did so find. The reasoning apparently was that a finding of violence in favor of the contention of the petitioners that there was violence — the Board having originally contended to the contrary — made further testimony on the subject unnecessary.
This ruling against the petitioners by the examiner and the Board was in my view erroneous for the reason that it failed to distinguish between the issue as to the mere fact of violence and the issue as to the extent and generality thereof. This the petitioners desired, and had a right, to show in rebuttal as tending to prove that the formation and activities of the Citizens' Committee were the natural response of citizens to the extreme and general violence and the breakdown in law enforcement, rather than to the influence of the petitioners. [6] Since the Board introduced evidence *665 to prove the charge, and ultimately, as I point out in topic VII below, found against the petitioners under the charge, the exclusion of the offered testimony was prejudicial.
(4) In further rebuttal of the evidence introduced by the Board under its charge in paragraph 15 of the complaint, the petitioners produced as witnesses members of the Citizens' Committee and representatives of the Company petitioner and asked them questions designed to elicit testimony to the effect that there was no accessory connection between the petitioners and the Citizens' Committee. Objections to some of these questions were sustained by the examiner upon the ground that they called for an inadmissible conclusion. Some of the rulings made on such ground were technically correct. For example, the question was asked: "Was there any connection in any way between Bethlehem Steel Company or Bethlehem Steel Corporation and the Citizens' Committee?" Whether there was such a connection was a conclusion to be drawn by the trier of fact from the evidence concerning the activities of the Committee, and concerning its contacts or transactions or the absence thereof, with the petitioners. By inference therefrom the issue as to accessory connection would be determined.
But many of the questions did seek testimony as to the activities of the Committee, and as to its contacts or transactions or the absence thereof, with the petitioners. Thus: "Did the Citizens' Committee or the Executive Committee, acting for the Citizens' Committee, or any official acting for the Citizens' Committee, have any business transactions with the Bethlehem Steel Company or Bethlehem Steel Corporation?"; "Did Mr. Evans [Management's Representative at the Cambria Plant] or Mr. Ellicott [the general manager of the Cambria Plant] or any other Representative of Bethlehem Steel Company or Bethlehem Steel Corporation at any time take any part in the transaction of any business that was transacted by the Citizens' Committee or the Executive Committee?" The answers to such questions were improperly excluded so far as competency was concerned.
Again, the examiner excluded the answer to such questions as the following: "Did the Citizens' Committee directly or through any committee at any time take any action or do anything for the purpose or with the intent of helping [or designed to help] Bethlehem Steel Company as distinguished from any other business interest or property owner whether located in Johnstown or elsewhere?"; "In taking any action or in doing anything or in refraining from taking any action or doing anything did you, as a member of the Johnstown Citizens' Committee or of its Executive Committee, ever act for the purpose of aiding, helping or benefiting Bethlehem Steel Company or Bethlehem Steel Corporation as distinguished from any other interest or other property owner whether located in Johnstown or elsewhere?" The examiner's rulings were confirmed by the Board. Such questions were permissible, so far as competency was concerned, within the rule alluded to in subtopic (1) of this topic wherein it is pointed out that the testimony of a witness as to state of mind, intent, motive, reason for action and the like, is not an inadmissible conclusion. The examiner did not rule against any of the questions, which I have above indicated were proper, upon the ground that the answers were not within the knowledge of the witness.
The testimony sought to be elicited by these questions was relevant under the issue of accessory connection between the petitioners and the Citizens' Committee and its activities. Therefore the rulings were prejudicial in denying the petitioners an opportunity to rebut the evidence introduced against them. The Board ultimately found that:
". . . The Company was thus implementing and strengthening an agency which was seeking to defeat the efforts of the union organization and to destroy that organization by creating hostility toward it.
". . . the Company tried to utilize the apparent impartiality of the Citizens' Committee as a means of interfering with the self-organization and concerted activities of its employees. . . ."
The Board defends its action and that of the examiner in respect of the foregoing rulings by pointing out that in its decision it stated: "We do not find that the respondents [petitioners] induced or participated in the formation of the Citizens' Committee." But this evades the real question in this aspect of the case. The rejected testimony was not offered merely to defend *666 against the charge that the petitioners had induced or participated in the formation of the Citizens' Committee, but also and particularly to defend against the charge that the petitioners had actuated the activities of the Committee after its formation.
In respect of the rulings of the examiner and their confirmation by the Board concerning the admissibility of evidence, it is to be commented that the National Labor Relations Act provides that in proceedings before the Board "the rules of evidence prevailing in courts of law or equity shall not be controlling." (Section 10(b) ) The record is filled with hearsay and opinion evidence, cross-examination beyond the scope of the direct, and other matter admitted in violation of the rules of evidence, in support of the Board's case. This is to be contrasted with the application of the strict rules of evidence against the petitioners — sometimes with technical correctness (as I comment above in subtopic (4) of this topic II) and at other times incorrectly. If the rules of evidence are to be relaxed in the proceedings of an administrative tribunal such as the Board, the relaxation should in fairness be equal. The Board should not lower adjective requirements to aid its own case and put them up again with the effect of keeping out of the record the evidence offered by a party charged with violation of the Act. Section 10(b) does not purport to apply to the Board's case only. It is worthy of note in this connection that although the examiner excluded the inadmissible conclusions of the witnesses which I have just alluded to, he nevertheless, as I point out in topic I, permitted counsel for the Board to cross-examine lay witnesses as to the meaning of provisions of the Plans, and thus to ask them to determine questions of law.
The objection of the Board that the motion to adduce was not timely filed is not, I think, well taken. On October 7, 1940, this court denied the motion of the petitioners to supplement the record. The nature and purpose of that motion, and the allegations in the petition for review upon which it was based were such that if the motion to supplement was sustained the order of the Board must have been set aside and the hearing held over again before the Board, in which event the motion to adduce would have been unnecessary. It was therefore not possible to file the motion to adduce until after action upon the motion to supplement. The motion to adduce was filed on November 9, 1940, thus within approximately one month after the court denied the motion to supplement.
I think, therefore, that the order of the Board should be set aside because of the denial to the petitioners of a right to present evidence material to their defense of the Board's charges, and that a rehearing should be ordered with directions to admit therein the testimony erroneously excluded in the present hearing.
III
FORM OF THE FINDINGS
Section 10(c) of the Act requires the Board to state findings of fact. I think the decision of the Board does not comply with the requirements of the Supreme Court and of this court in respect of findings of fact, and accordingly I think that its form should not have the approval of the court. The decision is an intermixture of charges, evidence, argument, inference, opinion, recitals of underlying facts and findings of ultimate facts. It is further rendered confusing by failure almost wholly to distinguish between the several Plans, although the evidence with respect to most of them is limited and there is no testimony except with respect to one of them. The requirements concerning the form of findings, stated by the Supreme Court in United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 1935, 294 U.S. 499 , 55 S.Ct. 462 , 79 L.Ed. 1023 , United States v. Baltimore & Ohio Railroad, 1935, 293 U.S. 454, 465 , 55 S.Ct. 268 , 79 L.Ed. 587 , and Florida v. United States, 1931, 282 U.S. 194 , 51 S.Ct. 119 , 75 L.Ed. 291 , and stated by this court in Saginaw Broadcasting Company v. Federal Communications Commission, 1938, 68 App.D.C. 282 , 96 F.2d 554 , certiorari denied 1938, Gross v. Saginaw Broadcasting Co., 305 U.S. 613 , 59 S.Ct. 72 , 83 L.Ed. 391 , and in Tri-State Broadcasting Company v. Federal Communications Commission, 1938, 68 App.D.C. 292 , 96 F.2d 564 , are not formalistic in purpose. On the contrary, as said by Mr. Justice Cardozo, speaking for the Supreme Court in United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co., supra: "We must know what a decision means before the duty becomes ours to say whether it is right or wrong." And as this court said in the Saginaw Broadcasting case, the requirement that findings be made in terms of both basic and ultimate facts "is . . . far from a technicality. On the contrary, it is to insure against Star Chamber methods, *667 to make certain that justice shall be administered according to facts and law." Such findings as were made in the instant case were condemned in National Labor Relations Board v. Thompson Products, Inc., 6 Cir., 1938, 97 F.2d 13 , where the court said:
"The finding of facts of the Board is not in the proper form. It has mingled therein statements of witnesses and expressions of opinion. No reference should be made to the evidence nor any discussion injected into the ultimate finding of facts upon which the Board rests its order. There should be a clean-cut statement of the ultimate facts without incorporating therein the evidence or the reasoning by which the Board arrived at its finding. If the Board desires to discuss or emphasize any part of the evidence or give its reason for its findings, it should do so in the form of an opinion or memorandum which should not be incorporated into, or connected with, the special finding of facts." [ 97 F.2d at page 13 .]
I think proper findings should be required of the Board before a decision in this court.
IV
PRINCIPLES OF PROOF AND REVIEW
In the foregoing topics I have indicated that in my opinion the case ought not be decided on the present record but should be returned to the Board for a rehearing and properly cast findings. But, as stated at the outset, it is my further view that even if fair hearing, proper admission of testimony in support of the petitioners' defense, and findings in proper form be assumed — assuming, that is, a basis on the present record for consideration of the case on its merits — still there is no foundation for the findings and order of the Board. And I proceed now to set out my reasons for this view. But before doing so, I think it necessary to state certain well established principles governing the determination of such cases as the instant case and judicial review thereof:
In determining whether or not charges have been proved, that is, in determining the questions of fact in a case, a trier of fact takes two steps: one, determination, from consideration of the evidence, of the underlying or subsidiary facts in the case; the other, determination from such facts of the question whether the ultimate facts charged have been established. And, under the system of law guaranteed by our Constitution, the subsidiary facts must be reached from the evidence and the ultimate facts from the subsidiary facts, not arbitrarily or by assumption or conjecture or by a process contrary to reason, but according to reason. Although, as said in National Labor Relations Board v. Pennsylvania Greyhound Lines, 1938, 303 U.S. 261, 271 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 , inferences are to be drawn by the trier of fact and not by the courts, the inferences must nevertheless be reasoned inferences. And it is the duty of the reviewing tribunal to see that they are, otherwise the case is not decided according to law. "The primary question presented for our determination is whether or not the findings of the Board find support in the record and are not arbitrary and capricious." Union Drawn Steel Co. v. National Labor Relations Board, 3 Cir., 1940, 109 F.2d 587, 589 . Under the Federal rule findings must be supported by substantial evidence, and substantial evidence is "more than a scintilla and must do more than create a suspicion of the existence of the fact to be established." National Labor Relations Board v. Columbian Enameling & Stamping Co., 1939, 306 U.S. 292, 300 , 59 S.Ct. 501 , 83 L.Ed. 660 . In Consolidated Edison Company v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 330 , 59 S.Ct. 206 , 83 L.Ed. 126 , the Supreme Court put it thus:
". . . the statute, in providing that `the findings of the Board as to the facts, if supported by evidence, shall be conclusive,' means supported by substantial evidence. Washington, V. & M. Coach Co. v. National Labor Relations Board [1937] 301 U.S. 142, 147 , 57 S.Ct. 648 , 81 L.Ed. 965 . Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [Citing authorities] . . .
". . . desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. . . ."
There are of course cases, and the instant case is one such, in which, because the subsidiary facts are undisputed, the function of the trier of fact is limited to the second step above mentioned of determining whether from the admitted subsidiary facts the ultimate facts are reasonably to be inferred. To safeguard the integrity of findings of ultimate fact arrived at by inference, the law has established certain principles with reference to the dependability of inferences: (1) An inference to be reasonable must be warranted from all the evidence, otherwise a fact reasonably inferable from a single fact or group of facts might be inconsistent with the totality of proven or conceded subsidiary facts. As said in National Labor Relations Board v. Union Pacific Stages, Inc., 9 Cir., 1938, 99 F.2d 153 , *668 177, where the court interpreted the meaning of Section 10(e) of the National Labor Relations Act, providing that "the findings of the Board as to the facts, if supported by evidence, shall be conclusive":
"But the courts have not construed this language as compelling the acceptance of findings arrived at by accepting part of the evidence and totally disregarding other convincing evidence."
In short, a trier of fact may not ignore a part of the evidence. [7] (2) If two equally probable but inconsistent inferences may be drawn from the same facts, a finding of fact cannot reasonably be based upon either of them; in such a situation the evidence is equivocal. Pennsylvania Railroad Co. v. Chamberlain, Administratrix, 1933, 288 U. S. 333 , 53 S.Ct. 391 , 77 L.Ed. 819 ; [8] Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 1939, 106 F.2d 100 . As illustrated in the Cupples Co. case:
"The evidence that the Company welcomed the organization of an independent union of its employees and preferred such a union to any other, and made haste to recognize the Association as the sole bargaining representative for all of its employees, is not a sufficient factual basis for the finding of interference, domination and support. This for the reason that, while such evidence is consistent with the hypothesis that the formation and administration of the independent union was interfered with, dominated and supported by the Company, it is not inconsistent with the contrary hypothesis, and therefore supports neither." [ 106 F.2d at page 114 .]
(3) Where two different inferences may be drawn from undisputed facts, that which is the more probable is the one which must be drawn. National Labor Relations Board v. Sands Mfg. Co., 1939, 306 U.S. 332 , 59 S.Ct. 508 , 83 L.Ed. 682 ; Appalachian Electric Power Co. v. National Labor Relations Board, 4 Cir., 1938, 93 F.2d 985 . (4) A fact may not be inferred from a proven fact or facts where unimpeached and uncontradicted testimony consistent with such proven fact or facts but inconsistent with the fact sought to be inferred, is in the record. Pennsylvania Railroad Co. v. Chamberlain, Administratrix, supra; Cupples Co. Manufacturers v. National Labor Relations Board, supra; [9] Foote Bros. Gear & Machine Corporation v. National Labor Relations Board, 7 Cir., 1940, 114 F.2d 611 . [10] This proposition was phrased as follows in the Pennsylvania Railroad case:
"And the desired inference is precluded for the further reason that respondent's right of recovery depends upon the existence of a particular fact which must be inferred from proven facts, and this is not permissible in the face of the positive and otherwise uncontradicted testimony of unimpeached witnesses consistent with the facts actually proved, from which testimony it affirmatively appears that the fact sought to be inferred did not exist. . . . A rebuttable inference of fact, as said by the court in the Wabash Railroad case [Wabash R. Co. v. De Tar, 8 Cir., 1905, 141 F. 932, 935 , 4 L.R.A.,N.S., 352], `must necessarily yield to credible evidence of the actual occurrence.' And, as stated by the court in George v. Missouri Pac. R. Co. . . . [1923, 213 Mo.App. 668, 674 , 251 S.W. 729, 732 ], `It is well settled that where plaintiff's case is based upon an inference or inferences, that the case must fail upon proof of undisputed facts inconsistent with such inferences.' . . ." [ 288 U. S. at page 340 , 53 S.Ct. at page 394, 77 L.Ed. 819 .]
It is true as commented in topic II that under the National Labor Relations Act the rules of evidence prevailing in courts of law are not to be controlling in the hearings conducted by the Board. But the rules of *669 logic and reasoning which are necessary to the accomplishment of the type of adjudication guaranteed under our system of law must be applied by the Board, as by any trier of fact, in reaching its findings. Consolidated Edison Company v. National Labor Relations Board, 1938, 305 U.S. 197 , 59 S.Ct. 206 , 83 L.Ed. 126 ; National Labor Relations Board v. A. S. Abell Co., 4 Cir., 1938, 97 F.2d 951 ; National Labor Relations Board v. Bell Oil & Gas Co., 5 Cir., 1938, 98 F.2d 406 ; Cupples Co. Manufacturers v. National Labor Relations Board, supra; Magnolia Petroleum Company v. National Labor Relations Board, 5 Cir., 1940, 112 F.2d 545 .
It is further to be borne in mind, in considering the merits of the instant case on the present record, that the words "interference," "restraint," "coercion," and "domination," as used in such a statute as the National Labor Relations Act, have an established meaning. As was said by the Supreme Court, speaking through Chief Justice Hughes, in Texas & New Orleans Railroad Company v. Brotherhood of Railway & Steamship Clerks, 1930, 281 U.S. 548, 568 , 50 S.Ct. 427 , 74 L.Ed. 1034 , concerning the meaning of the words "interference," "influence" and "coercion" in the Railway Labor Act of 1926, 45 U.S.C.A. § 151 et seq., of which the National Labor Relations Act is an outgrowth, and which in respect of carriers and their employees provided that representatives "shall be designated by the respective parties . . . without interference, influence, or coercion exercised by either party over the self-organization or designation of representatives by the other":
"The intent of Congress is clear with respect to the sort of conduct that is prohibited. `Interference' with freedom of action and `coercion' refer to well understood concepts of the law. The meaning of the word `influence' in this clause may be gathered from the context. Noscitur a sociis. Virginia v. Tennessee, 148 U.S. 503, 519 , 13 S.Ct. 728 , 37 L.Ed. 537 . The use of the word is not to be taken as interdicting the normal relations and innocent communications which are a part of all friendly intercourse, albeit between employer and employee. `Influence' in this context plainly means pressure, the use of the authority or power of either party to induce action by the other in derogation of what the statute calls `self-organization.' The phrase covers the abuse of relation or opportunity so as to corrupt or override the will, and it is no more difficult to appraise conduct of this sort in connection with the selection of representatives for the purposes of this Act than in relation to well-known applications of the law with respect to fraud, duress and undue influence."
I have been at pains to set out the foregoing principles — which are so well settled that their iteration would ordinarily be supererogation — because in my opinion it is for lack of due recognition and application of them that the instant case was wrongly decided by the Board on its merits on the present record.
V
DOMINATION AND INTERFERENCE
I think there is no lawful foundation for the ultimate finding of the Board that the petitioners dominated and interfered with the formation and administration of labor organizations of their employees, in contravention of Section 8(2) of the Act. I think that there is therefore no warrant for the order to cease and desist from domination and interference and no warrant for the order of disestablishment.
The subsidiary facts by inference from which the Board's ultimate finding must be justified are largely without dispute. They relate to three main topics, the origin, the structure, and the operation of the Plans.
Origin of the Plans. The Plans at the Bethlehem, Maryland, Steelton, and Lebanon Plants came into existence as the result of a proceeding before the War Labor Board, an agency of the Government during World War I. On July 31, 1918, that Board found that the absence of a system of collective bargaining at the Bethlehem Plant had been productive of unrest among certain employees, and made a finding that such a system should be instituted at that Plant. The Company petitioner therefore set about formulating and introducing not only into the Bethlehem Plant but also into its other Plants above named, a plan of employees' representation intended to serve as a method of collective bargaining. With the advice and assistance of W. L. Mackenzie King, [11] who had been Minister of Labor of Canada and is now Prime Minister, the Company prepared a form of plan and, *670 prior to October 1, 1918, posted the following notice in the Bethlehem, Maryland, Steelton, and Lebanon Plants:
"Effective October 1, all employees of this plant in hourly, turn, tonnage contract and piecework rates, will be paid on a basis of time and half time for work in excess of eight hours on any day.
"It is also desired to provide ways and means of meeting with and bringing before the management problems affecting their working conditions, and to accomplish this the company proposes to establish a system of employee representation consisting of representatives elected by the employees to serve on various committees to deal with working conditions.
"The general principles of this system have been developed, and will be immediately submitted to the employees."
During the same month the Company distributed among the employees at the Maryland, Steelton, and Lebanon Plants copies of a printed booklet entitled "Representation of Employees in Plants of Bethlehem Steel Corporation" containing the form of plan thus suggested. Prior to November 11, 1918, this form of plan became effective as the Plan of Employees' Representation at each of these three Plants, and elections of Employees' Representatives were held thereunder in each of such Plants.
The form of plan prepared as just described was not, however, at this time presented by the Company petitioner to the employees at the Bethlehem Plant for reasons which were stated in the following terms by a representative of the War Labor Board in charge of administering the Board's finding of July 31, 1918:
"A considerable divergence of opinion developed between the Company on the one hand, and the staff of the War Labor Board on the other, with reference to what type of shop elections fulfilled the requirements of the Board's findings. After a series of interchanges of view on this subject, and conferences between the Chief Administrator and Mr. [Eugene G.] Grace [president of the Bethlehem Company], it was finally decided that the plan which the Company was perfecting, involving as it did a multiplicity of committees and much detail of organization, had best be waived for the present, and simple craft committees be elected immediately by the electricians and machinists, the two classes of employees most insistent upon a presentation of their grievances."
To this the Company petitioner agreed. Prior to October 9, 1918, a representative of the Board who had gone to Bethlehem, Pennsylvania, to administer the finding of July 31, 1918, prepared a plan for the election of committees, including a form of ballots, posters, and other details, and on October 9, 1918, he issued a bulletin entitled "A statement to the workers of the Bethlehem Steel Company of the purposes of the War Labor Board Award[ [12] ] and of the plans for the election of the shop committees to carry out the principles of collective bargaining provided for in the award." The bulletin stated the purposes of the award in part to be as follows:
"1. To give the employees a direct voice in determining their working conditions.
"2. To provide a method of mutual bargaining between the Company and the chosen representatives of shop and craft groups.
"3. To provide ready means for conferences between employees and management on all matters affecting common interests.
"4. To provide an agency for the prompt adjustment of all differences that may arise between the employees and the management, either groups or individuals."
The Board then held elections on the Plant property — as the most practical way of holding them — during October and November of 1918 under the supervision of a Board examiner.
After the Armistice of November 11, 1918, Mr. Grace wrote a letter to the War Labor Board requesting that its examiners be withdrawn so as to allow the Company to proceed with the installation of the Mackenzie King plan. This letter was in the following terms:
"November 27, 1918
"Gentlemen: —
"On the 19th of November your Examiners announced a finding applicable to our Machine Shop employees at Bethlehem. This we are unable to adopt, as it was preceded by the cessation of hostilities, with the consequent cancellation of, or restrictions on, the greater part of our orders on which these employees were engaged. As to back-pay from August 1st to the date of change in the munitions program, we are willing, as we have before stated to you (in our letter of September 13th) and the War and Navy Departments, to pay over to the employees any increase covered by this departure in the form of additional compensation to us for the purpose.
"In view of the problems which confront us at Bethlehem (our force there being four times as much as at the outbreak of the European War), may we suggest the desirability of withdrawing your Examiners which are still at our plant, thus permitting us to proceed to make the necessary adjustments and rearrangements of our working forces to meet the new peace-time competitive conditions, and also to enable us to proceed with the installation of the practical, comprehensive, and permanent plan of employees' representation (providing for collective *671 bargaining) which is now in successful operation at our other Plants.
"Respectfully,
"President
"National War Labor Board
"Washington, D. C."
On December 6, 1918, the War Labor Board answered in a letter signed by William H. Taft and Basil M. Manly, Joint Chairmen for the Board, stating that Mr. Grace's letter amounted to refusal to apply the finding (announced by the examiner on November 19, 1918) [13] on the ground that hostilities had ceased, and insisting that the then means of collective bargaining be maintained, apparently thinking that the Company intended to do away with collective bargaining. The Board's letter charged that the Company, having agreed to the installation of a system of collective bargaining satisfactory to the Board upon condition of the establishment of which the employees had remained at work during the War, now wished to repudiate that system. And the letter asserted that as a matter of good faith on the part of the Company and the Government the collective bargaining system should be maintained. The terms of this letter are printed in the margin. [14] On *672 December 12, 1918, Mr. Grace answered, stating that the Board had misinterpreted the attitude of the Company toward collective bargaining if it thought that the Company intended to do away with the principle thereof. His letter is set out in the margin. [15] Conferences were then held between *673 the War Labor Board and representatives of the Company. At a conference on February 4, 1919, Paul D. Cravath, counsel for the Company, made a statement to the effect, among other things, that "real progress has been made in removing the misunderstandings which seem to have developed between the War Labor Board and the Bethlehem Steel Company" out of Mr. Grace's letter of November 27; and that:
"It has not been the disposition of Bethlehem to disregard the findings of your Board nor to take advantage of the signing of the armistice to withdraw from the assurances which it gave you during the war period. On the contrary, the Company authorizes me to say that it recognizes that you are entitled to its loyal cooperation in carrying through the two important measures with which your findings dealt.
"First: The inauguration of an effective plan for collective bargaining between the management and the employees, and, second, the doing of all that can be done to secure from the War and Navy Departments, and the other procurement departments of the Government, an allowance to cover such additional compensation as may be necessary to give Bethlehem employees the retroactive pay recommended by your findings.
"At no time since the armistice has it been the purpose of Mr. Grace and his associates in any way to withdraw from these commitments. . . ."
After this statement by Mr. Cravath, Mr. Taft then said:
"Mr. Grace through Mr. Cravath has been conferring with the Board and has now made a statement of the intention of the Bethlehem Company in dealing with its men to put in a full and fair collective bargaining system in accordance with the suggestions of the Board and the elections already had. I have every hope that this will go through as the company hopes it may and says that it is going to put it through, and if and when it does so in the full spirit of its present purpose, it will justify a full withdrawal of the statements made by me with reference to Mr. Grace. I shall be glad then to say there has been a misunderstanding and to withdraw my former criticism of Mr. Grace.[ [16] ]"
After this conditional recognition of the good faith of the Company had been made by the War Labor Board, it was agreed that the Company should negotiate with Bethlehem employees' committeemen, that is, employees' representatives who had been selected under the War Labor Board craft plan, with a view to agreeing upon a mutually satisfactory plan of collective bargaining. Certain differences of opinion arose between the Company and a drafting committee appointed by the employees' representatives and these differences were submitted on behalf of the latter to the War Labor Board about April, 1919. Representatives of the Company, the drafting committee and the Board held meetings at which these differences were discussed. As a result the Company and the drafting committee reached an agreement on a form of plan of collective bargaining and submitted it to the Board, which at a meeting on April 11, 1919, voted to receive and approve a report concerning this form of plan. The report stated:
"The accompanying plan . . . was mutually agreed to by the parties, with the exception of minor details which were added by your Section [of the War Labor Board].
"Said plan, in substance, is a modification of other plans in effect in other cases, some voluntary and others installed through and by this board.
"Your Section therefore reports that in its judgment the company has demonstrated the good faith stated by its counsel, Mr. Cravath, February 4 last."
The minor additions proposed by the Board were accepted by the employees' drafting committee and by the Company, and the Plan went into effect on May 1, 1919. The Board caused the Plan to be printed, and later the Company caused to be printed and distributed among all of the employees at the Bethlehem Plant a booklet setting forth the Plan together with the names of the employees' representatives who had signed it. The War Labor Board went out of existence in August, 1919. In January, 1920, by mutual agreement between the Company and a Temporary Rules Committee appointed by the Employees' Representatives *674 a revision of the Plan was prepared and this was submitted to a meeting of the Representatives and approved by them January 28, 1920. This became in substance the Bethlehem Plan down to the amendments of 1935 referred to below, and it was in its essentials like the Maryland, Steelton and Lebanon Plans devised by Mackenzie King, and like the Cambria Plan which had the direct approval of the War Labor Board as will appear below.
The Plan at the Cambria Plant of the Company petitioner was in effect at the time the Company acquired that Plant on March 30, 1923, and it came into existence in the following manner: In 1918 the Plant was being operated by the Cambria Steel Company as a subsidiary of the Midvale Steel and Ordnance Company. On September 19, 1918, the Plan was suggested to the employees by a notice posted at the Plant, authorized by the Board of Directors and signed by the President, reading as follows:
"Midvale Steel and Ordnance Company
"Cambria Steel Company
"The Board of Directors and Officers of Midvale Steel and Ordnance Company, Cambria Steel Company and Subsidiary Companies, recognizing the fact that the prosperity of their Companies is inseparably bound up with the general welfare of their employes, propose, with the co-operation and assent of their employes, and for their mutual interests, to establish a plan for representation of employes, which will hereafter govern all relations between the Companies and their employes.
"The past history of these Companies has been remarkably free from disputes with their wage-earners, due, it is sincerely believed, to the fair dealing which it has always been the aim of the Management to maintain in all matters affecting the relation of the Company to their employes.
"We recognize the right of wage-earners to bargain collectively with their employers, and we hereby invite all employes to meet with the officers of their respective Companies for the purpose of considering, and if practicable, adopting a plan of representation by the employes, which shall be thoroughly democratic and entirely free from interference by the Companies, or any official or agent thereof.
"It is hoped that every employe will respond to this invitation, and meet with the officers of the Company in the Spirit of fair dealing and mutual helpfulness.
"For the mutual convenience of officers and employes, these meetings are called as per schedule attached hereto.
"A. C. Dinkey,
"President"
The Plan, then known as the "Plan of Representation of Employees of Midvale Steel and Ordnance Company, Cambria Steel Company, and Subsidiary Companies, Effective October 1, 1918," was negotiated between the Cambria Steel Company and representatives of the employees who had been elected by all of its employees for that purpose; and after an amendment of the Cambria Plan as it thus came into existence, it was approved by the War Labor Board.
The Lackawanna, Leetsdale and Rankin Plans were established after the acquisition on October 10, 1922, by the Company petitioner of the Lackawanna Plant and after acquisition on February 10, 1931, by an affiliate [17] of the Company petitioner of the Leetsdale and Rankin Works. The Concentrator Plan was established after the Concentrator Plant in March, 1929, became a separate manufacturing unit operated by an affiliate [18] of the Company petitioner. After the Lackawanna Plant and the Leetsdale and Rankin Works were acquired, and after the Concentrator Plant became such a separate manufacturing unit, the Company petitioner at the Lackawanna Plant, and the affiliates above referred to at the Leetsdale and Rankin Works and at the Concentrator Plant, submitted to the employees at the various Plants and Works mentioned, a form of plan of employees' representation which contained provisions based largely on those of the Plans already in existence, to wit, the Maryland, Steelton, Lebanon and Bethlehem Plans. Sometimes with and sometimes without modification such form of plan was accepted by the employees through their designated representatives and by voting in the first nominations and elections held thereunder.
Structure of the Plans. Although they are not separately stated, there are two classes of provisions in each of the Plans, those which relate to the organic principles of the labor organization of the employees and those which have to do with the principles governing the relations between the labor organization and the Company petitioner, including the stipulation of grievance adjustment and collective bargaining procedures. The organic provisions of the Plans are those usually found in the constitution of a labor organization. According to them, employees are represented in the government of the organization by elected Employees' Representatives, the voting privilege being limited to those employees who have been on the Company payroll for sixty days immediately preceding *675 an election, and who neither regularly hold any supervisory position nor have the power to recommend the hiring or discharging of other employees. Employees' Representatives must themselves possess the qualifications stipulated for voters, and the additional qualification of being adult American citizens employed in the Company for one year; they are chosen in secret balloting conducted by the employees under regulations prescribed by a Rules Committee composed of Employees' Representatives. In respect of balloting the Plans provide:
"Nominations and elections shall be by secret ballot and so conducted as to avoid undue influence or interference with voters in any manner whatsoever, and to prevent any fraud in the casting or counting of ballots."
The tenure of Employees' Representatives is one year. Collectively they compose the General Body (or Committee of Representatives as the assembly thereof is called under some of the Plans). Representation in the latter is proportional, on the basis of one Employees' Representative for a specified number of employees — the number varying in the different Plants. The provisions of the Plans prescribe in detail a method to be followed in recalling Representatives and in filling vacancies.
After the annual election of Employees' Representatives, the General Body holds an organization meeting and elects officers and Committees. These Committees and the jurisdictions thereof, taking the Cambria Plan as typical, are as follows: the Finance Committee, which deals with meeting the expenses of the labor organization; the No. 1 Standing Committee, which acts in respect of rules, ways and means, and the conduct of elections; the No. 2 Standing Committee, having jurisdiction over wages, piece work, bonus and tonnage schedules, hours, employment and working conditions; the No. 3 Standing Committee, which concerns itself with pensions and relief, athletics and recreation, safety and prevention of accidents; the No. 4 Standing Committee, dealing with employees' transportation, housing, domestic economies and living conditions, health and works sanitation, education and publications, continuous employment and condition of industry; the No. 5 Standing Committee, which is occupied with all other matte

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1490623. Public record. Not legal advice.