Full opinion text
JONES, Circuit Judge. The National Labor Relations Board petitions for the enforcement of its order which directs Baldwin Locomotive Works, the respondent, to cease -and desist from certain unfair labor practices, to disassociate a company-dominated union, and to post the notices usual in such circumstances. The order eventuated in a proceeding : which. had been formally initiated by the Board’s complaint on charges filed by the Steel Workers Organizing Committee (S. W. O. C.). Some of the respondent’s labor practices which the complaint alleged to be unfair had been comfnitted while the respondent was operating its business as debtor in possession under an order of the United States District Court for the Eastern District of Pennsylvania in a reorganization proceeding under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. A plan of reorganization was approved therein by the District Court and a'decree and order discharging the respondent from bankruptcy was thereafter entered. Several months later the complaint herein was filed. A hearing on the.complaint was duly had before a trial examiner. The respondent appeared in the hearing and was represented throughout by counsel, as were also the Board, the S. W. Ó. C., and a local labor organization known as the Federation of Baldwin, Employees, which was formally granted leave to intervene. The hearing extended over a number of months during which time more than sixteen thousand pages of testimony were taken. The respondent opposes the entry of a decree enforcing the Board’s order on the ground that (1) the respondent is not chargeable with unfair labor practices which occurred while its property and business were being managed and operated by it as the debtor in possession under order of the District Court in the reorganization proceeding, (2) the Board’s findings of fact are not supported by substantial evidence, (3) the Board’s order is invalid and improper, and (4) the respondent was denied the full and fair hearing which due process requires. The Board’s jurisdiction of the subject-matter of the complaint (except for what occurred during the reorganization proceeding) is not questioned, nor could it well be. The Board found, and it is undisputed, that the respondent, a Pennsylvania corporation, having its principal offices and plant at Eddystone, Pennsylvania, was engaged in interstate commerce throughout the period covered by the complaint and was, therefore, subject to the provisions of the National Labor Relations Act. The legal conclusion gave proper effect to the fact thus competently found. On the merit of the charges in the complaint as supported by the evidence, the case is a relatively simple one in the narrowness of the questions involved. But the mistaken zeal of respondent’s trial attorney in endeavoring to obfuscate the matter which the complaint had properly 'put in issue succeeded to the point where the consequent voluminous record bristles with exceptions'. Many of these are now urged upon us by reference. to numerous record-page citations in support of the respondent’s contentions that the trial examiner was biased and prejudiced and that he denied the respondent an opportunity to litigate justiciable issues. The respondent also complains that the Board availed itself. of the services of subordinates in assembling from the record the matter which it accepted as the factual basis for its findings. From this, the respondent argues , that the Board’s method of arriving at its decision amounted to a denial of due process. Before coming to the merits of the Board’s order we shall treat first with the question as to whether the respondent is chargeable with the labor practices pursued by it while debtor in possession of its plant and business in bankruptcy, as well as the respondent’s assault on the trial examiner’s conduct and the course pursued by the Board in deciding the matter. The complaint, which was filed on December 21, 1938, alleged the commission, inter alia, of unfair labor practices by the respondent between February 25, 1935 (the date of the filing of the respondent’s petition for reorganization in bankruptcy) and September 23, 1938 (the date of the respondent’s discharge from the bankruptcy proceeding). A plan of reorganization, approved by the District Court on September 1,' 1937, had been duly effectuated. Even though some of the unfair labor practices with which the respondent is charged were committed while it was managing and operating its business and properties as the debtor in possession under court order, it will hardly be denied that a debtor in possession is responsible for the unfair labor practices which occur during a reorganization. Its status as an employer is no different, so far as the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., is concerned, than that of any other employer. Court supervision of corporate reorganization affords the operating possessor no freedom from its statutory duty to its employees. And, where managerial control and economic interest of the debtor in possession and the reorganized company are the same, it could be only the blindness of formalism that would suggest separately instituted proceedings against the predecessor and the successor for the redress of their respective but continuous unfair labor practices. In National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179, 183, it was said that “ * * * 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.” Nor is the legislative solicitude any the less where the ownership of the employing agency undergoes no substantial change upon reorganization. “An 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.” Bethlehem Steel Co. v. National Labor Relations Board, App.D.C., 120 F.2d 641, 650, 651. In Southport Petroleum Co. v. National Labor Relations Board, 62 S.Ct. 452, 456, 86 L.Ed. -, the Supreme Court recently held a Board order against a predecessor in interest to apply equally, to the successor, proof of “a bona fide discontinuance and a true change of ownership” being wanting. Indeed, the respondent concedes, as it must, that, where a complaint for unfair labor practices has issued against a predecessor, the proceeding may be continued against the successor. Can the successor be any less responsible for the predecessor’s unfair labor practices where the complaint issues against the successor? We think not. The crucial matters are the commission of the unfair labor practices and the identity of interest of the employing agencies which perpetrated them. In the present instance, the only change effected in the debtor by the reorganization was a readjustment of its bond and capital structures. The claims of creditors (other than bond) were unaffected; and, except for the retirement of one officer, the respondent’s executive personnel and management were of the same group as they had been while the company was the debtor in possession. In no legally significant sense, therefore, can the respondent be differentiated from the debtor in possession so far as the employer-employee relationship is concerned. Manifestly, this works no injustice to the present respondent. As already pointed out, even the claims of general creditors were wholly unimpaired by the reorganization and the same employing corporation which entered that proceeding emerged therefrom with the same management and control intact. In reality, except for the back pay provisions of the Board’s order, the question of the reorganized company’s responsibility for its unfair labor practices while debtor in possession is presently academic. The record discloses conduct on the part of the respondent, following its emergence from the reorganization proceeding, of itself sufficient to sustain the charges of the complaint. The question therefore is merely what effect did the debtor’s discharge in the reorganization proceeding have upon the reorganized company’s liability for back pay. The answer is that it had hone. The Board’s order of reparation constitutes something other than an ordinary debt. The power to award back pay, which the statute authorizes, exists for and is exercised in the public interest. See Agwilines, Inc., v. National Labor Relations Board, 5 Cir., 87 F.2d 146, at page 150, where the Court of Appeals aptly said that “The procedure the statute outlines.is not designed to award, the orders it authorizes do not award, damages as such. The proceeding is not, it cannot be made, a private one to enforce a private right. It is a public procedure, looking only to public ends. The statute has in mind the maintenance and furthering of industrial amity, and therefore peace, the prevention Df industrial war.” See also National Labor Relations Board v. Newark Morning Ledger Co., 3 Cir., 120 F.2d 262, 267, 268, 137 A.L.R. 849. The deterrent function of the back pay' award in inducing general obedience to the Labor Relations Act has been noted. In the very nature and purpose of the power which the Board exercises in laying a charge for back pay upon an offending employer, such power must' needs be unembarrassed by an intervening plan of reorganization concerned with the readjustment of the 'same employer’s liability for its private obligations. The jurisdiction of a United States District Court in bankruptcy does not embrace the power to treat with a debtor’s unfair labor practices which affect commerce. Nor is such a court’s leave to the Board to proceed in appropriate manner required. By Section 10(a) of the National Labor Relations Act the Board is expressly empowered to prevent any person from engaging in any unfair labor practices affecting commerce; and- that power is exclusive in the Board and unaffected “by any other means of adjustment or prevention that 'has been or may be established by agreement,, code, law, or otherwise.” The Act moreover explicitly removes the possibility, of any restraint upon the Board’s power which might be thought to arise where the employer’s properties and business are operated under an order of a District Court in a reorganization proceeding in bankruptcy. We conclude therefore that under the circumstances shown in this case the respondent is chargeable on the complaint of the Board with the Unfair labor practices committed while the ultimately reorganized company was operating the business and properties as the debtor in possession and that the Board’s power to dissipate the unfair practices is wholly unaffected by the reorganization proceeding. The respondent’s assertion that the trial examiner was biased and prejudiced is utterly lacking in merit. An examination of the record clearly indicates that the offender against due and orderly trial procedure was in reality respondent’s trial attorney, whose apparent desire from the outset of the hearing was to goad the examiner into unjudicial words or conduct. Fortunately, counsel’s efforts in such regard failed of success. That the course he pursued, however, was in fulfillment of a predetermined hostile design is evidenced by the fact that by answer antedating the hearing, and filed on the first day of the hearing before any testimony on the complaint had been taken, counsel had his client (the respondent) charging “the Board, its members, officers, agents and employees” with “partiality and active aid to the persons and organizations (including their affiliates) on whose charge the Board instituted this proceeding * * *”. Nor did respondent’s trial attorney long delay in acting out the role which he had thus prematurely foreshadowed. During the examination of the first witness for the Board (an officer of the respondent company) over a matter no more disputable than the production of company records relating to the character of its business, respondent’s trial attorney promptly ascribed the examiner’s rulings to bias and prejudice and as constituting a denial of due process in violation of the Fifth Amendment of the Constitution. From then on and almost continuously throughout the lengthy proceeding respondent’s trial attorney repeatedly hurled the charge of bias and prejudice in connection with his exceptions to rulings, when even a bare exception was hardly necessary. The examiner stated early and a number of times that a continuing exception to each and every adverse ruling would automatically be allowed the respondent. Yet counsel continued to impugn the examiner’s integrity, invariably parroting his charge according to a uniform pattern of expression. But, not once did he even suggest his own faith in the imputation by moving to disqualify the examiner, — the effective means for eliminating bias and prejudice where, in fact, it is believed to exist. Bethlehem Steel Co. v. National Labor Relations Board, App.D.C., 120 F.2d 641, 652, 653. Notwithstanding a lack of appropriate power, in aid of orderly procedure, to deal with counsel’s contumacy directly and adequately, the examiner none the less exercised commendable restraint under the aggravating circumstances and proceeded with the hearing fairly and impartially to the conclusion thereof. It therefore comes with little grace for the respondent now to urge upon us its trial attorney’s own partisan imputation of bias and prejudice as being fatal to the proceeding. The issues which the respondent says it was prevented by the examiner from litigating' related to immaterial and irrelevant matter which in some instances amounted to scandal and impertinence. This, respondent’s trial attorney endeavored to inject' into the case by a prolix answer which for the most part was wholly unresponsive to the complaint. Paragraph 29, quoted in full in footnote 8, supra, is a fair illustration. On motion duly made by counsel for the Board before any testimony was taken, the examiner properly struck the irrelevant -and immaterial matter from the respondent’s answer; and, thereupon, he stated of record, succinctly and correctly, the issues to be litigated in the light of the complaint. Thenceforth, he rightly excluded the respondent’s offers of proof of the matter stricken from the answer. The examiner’s refusal of the respondent’s request for subpoenas was warranted. The witnesses whom respondent’s trial attorney thus sought to summon,: he intended to use in an effort to build up a record of irrelevancy and immateriality, as the stricken portions of the answer clearly envisioned. The examiner’s action with respect' to the particular subpoenas requested properly served to confine the hearing to the issues and, at the same time, it eliminated nothing that was either material or relevant to the case. Complaint is made of the fact that the examiner at times interrogated witnesses. The respondent suggests that this was done out of hostility to it, but we are cited to no single instance throughout the extensive record that would justify the respondent’s insinuation. It is an examiner’s duty to develop the facts material to, the issues, and to that end he is authorized “to call, examine and cross-examine witnesses and to introduce into the record documentary or other evidence”. See Section 24 of Rules and Regulations, .Series 1, as amended, promulgated by the National Labor Relations Board pursuant to authority contained in Section 6(a) of the National Labor Relations Act and in force at the time of the hearing. 1 N.L.R.B. 1032-1037. See, also, Bethlehem Steel Co. v. National Labor Relations Board, App.D.C., 120 F.2d 641, 652, where it was said that, — “It is the function of an examiner * * * to see that,the facts are clearly and fully developed. He is not required to sit idly by and permit a confused or meaningless record to be made.” The examiner, therefore, acted within his authority in interrogating witnesses. Nor did the examiner err when he refused to .permit respondent’s trial attorney to impeach witnesses by interrogating them with respect to their arrests without conviction for crime and their tendency to drink intoxicating liquors, etc. By limiting counsel, in such connection, to a showing of convictions for felony or misdemeanors amounting to crimen falsi, the examiner acted in accordance with a well recognized, rule of evidence. See United States v. Montgomery, 3 Cir., 126 F.2d 151. It -is now urged by the respondent that the Board was biased and prejudiced just as the stricken paragraph of the answer had alleged. To support the charge the respondent relies on articles written and speeches made by members of the Labor Board. But nowhere is there an allegation or showing that either the Board or any 'member thereof ever acted in respect of the subject-matter of the instant complaint other than officially and directly. The case of Berkshire Employees Ass’n, etc., v. National Labor Relations Board, 3 Cir., 121 F.2d 235, is therefore not in point; and the current‘charge of bias and prejudice stands unsustained. The respondent asserts that the Board did not read or consider the evidence in this case but relied entirely for its findings upon an analysis of the ■ testimony and documentary proofs, and recommendations, made by attorneys in its “review section”. This charge the respondent rests upon inferences which it draws from testimony given by Board members and employees before a special investigating committee of the House of Representatives and from the speeches made or articles written by Board members. The respondent points to no direct proof in the record now before us which discloses what course the Board pursued in considering the testimony, in making its findings of fact, or in arriving at its decision in this case. However, we may well assume that the Board did avail itself of the services of subordinates in familiarizing itself with the material evidence and in arriving at. the findings whereof its conclusions are predicated. Such action does not constitute a want of due process. In Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288, it was said that the rule as to the hearing necessary to insure due process “does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. Assistants may prosecute inquiries. Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. Argument may be oral or written. The requirements are not technical. But there must be a hearing in a substantial sense.” Wherever the question of due process has been raised in regard similar to the present, it has been answered adversely to the respondent’s contention. The very exigencies of the Board’s situation, because of the character and scope of the work imposed in the discharge of the duty which Congress has placed upon it, require that the courts do not lightly impute want of due process to the Board’s mode of procedure simply because it happens to be an administrative body. As was said in National Labor Relations Board v. Biles Coleman Lumber Co., 9 Cir., 98 F.2d 16, 17, “It is obvious that such an administrative body, with scores of cases for its decision, many involving complicated questions of fact and often intricate questions of law, properly will rely upon its employees for assistance in their preparation. The administrative duties imposed on the Board by the Congress could not proceed otherwise.” In determining what course the Board may follow and, yet, not offend against constitutional inhibitions, it would be bootless to enter upon a discussion as to the relative merits or constitutional validity of the court-tradition and institutional concepts of administrative procedure. For, while “a ‘full hearing’ has obvious reference to the tradition of judicial proceedings” (Morgan v. United States, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288), we may not dogmatically tell the Board that it must “hear” in some one particular manner so long as it does “hear”, i.e. consider the evidence and argument. The question is not what procedure a court might favor but whether the procedure actually followed by the Board was violative of due process. The responsibility for the administration of the National Labor Relations Act lies exclusively with the Board. So long, therefore, as the Board’s procedural methods do not violate constitutional restraints, the right to choose the method is the Board’s. What the courts may and do determine, on petitions to enforce or to set aside Board orders, is whether the Board’s procedure in given circumstances comported with the requirements of due process. And, thus, court decisions do tend automatically to delineate more specifically from time to time the course which the Board may pursue and keep within constitutional bounds, but that is as far as the courts can properly go in directing Board procedure. They may not “probe the mental processes” of an administrative officer “in reaching his conclusions if he gave the hearing which the law required”. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129. ' Whether there was due process in this case depends, therefore, upon whether the respondent was, accorded the hearing which the law required. From the record before us, we are unable to see how the answer could possibly be otherwise than in the affirmative. A charge of unfair labor practices by the respondent which was sufficient under the Act (Consumers Power Co. v. National Labor Relations Board, 6 Cir., 113 F.2d 38, 42) was duly filed with the Board. The Board’s complaint, which specified the charges in detail, thereupon issued against the respondent. In due course a hearing on the complaint was begun before a trial examiner. The respondent by its trial attorney actively participated in the hearing throughout the five months which it endured. Immediately following the settlement of the pleadings after the respondent’s ■ motions to quash the complaint and the motion to strike portions of the respondent’s answer had been- .disposed of, and before, any testimony in relation to the charges had been taken, -the examiner correctly stated for the record in the presence of respondent’s trial counsel the charges to be litigated. From then on the respondent by its .trial attorney cross-examined the Board’s witnesses and called and examined witnesses. Surely, the respondent cannot- justly say that it was not given an “opportunity to know the claims of the opposing party and to meet them”. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129. After the hearing had been concluded the examiner filed an intermediate report to which, as well as to the record, the- respondent filed exceptions which the Federation also -adopted for its own. The matter, was argued orally before the Board by respondent’s trial counsel, inter alia, who filed an extensive brief thereon with the Board. Thereafter, the Board entered its decision and order and the findings of fact and conclusions of law whereon its order was based. We may not assume that the Board neither considered the evidence nor read the respondent’s brief (cf. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 228, 59 S. Ct. 206, 83 L.Ed. 126), nor may we in such circumstances “probe the mental processes” of the Board “in reaching [its] conclusions” Morgan case, supra. In the Consolidated Edison case, supra, there was no intermediate report by the examiner to which the petitioner could file exceptions, nor was the petitioner accorded an oral argument before the Board. Yet the Court of Appeals for the Second Circuit said (95 F.2d 390, 395) that “* * * it must be presumed that their [petitioners'] brief submitted to the trial -examiner came to the Board’s attention * * * [and] though we do not commend such procedure, we cannot say that it has deprived. the petitioners of due process of law.” In affirming the decree there entered, the Supreme Court said that it could not say on the record in the case that the B.oard did not consider the evidence or the petitioners’ brief, loe. cit. supra. We, likewise, do not commend the procedure ' followed in the- Consolidated Edison case-, but the decision is none the less important as showing what has been considered not to be a want-of due process. A fortiori, there was no want of due process in the instant case. In all respects, the respondent had the hearing before the Board which the law required. See National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318, 342, 60 S.Ct. 918, 84 L.Ed. 1226. We have then for consideration the merit of the Board’s order. The evidence shows that in 1933 the works manager of Baldwin Locomotive Works initiated the organization of Baldwin Association, an employee, representation plan covering all employees of Baldwin at its Eddystone plant exclusive of the employees in the foundry division. ■ About the same time the general manager ■ of the foundry division organized Baldwin Foundries Association under a like employee representation plan for the employees in the foundry division. All of this was done shortly after the .passage of the National Industrial Recovery Act of 1933, 48 Stat. 195. Both organizations received financial support and other assistance from Baldwin. The plans of representation were of the familiar type of employee organization under employer-aegis which ■ was widely adopted by iron and steel companies throughout the country immediately following the enactment of the National Industrial Recovery Act. See Roebling Employees Ass’n, Inc., v. National Labor Relations Board, 3 Cir., 120 F.2d 289, 290. The concession to the mandate of Section 7 of the National Industrial Recovery Act thus implied was noted by this court in Republic Steel Corporation v. National Labor Relations Board, 3 Cir., 107 F.2d 472, 474, modified on another point 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 60. The Boarjd’s findings that both the Association and the Foundries Association were the creatures of Baldwin and were under its domination and control have substantial support in the evidence. And .that condition undeniably endured until May 1937, notwithstanding that the National Labor Relations Act outlawing company unions had ■ been enacted on July 5, 1935. But, by May 1937, the need for a different tack in the company’s course toward employee unionization could no longer be ignored. The constitutionality of the National Labor Relations Act had just been authoritatively confirmed. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. What subsequently transpired with respect to the evolution of the new Federation from the old Associations, without break in the respondent’s domination and control, fully supports the Board’s findings with respect thereto. On May 11, 1937 (the S. W. O. C. in the meantime having begun to organize the employees in Baldwin’s Eddystone plant), the general committee of the Association was called together and was told by William H. Chesnut, Baldwin’s industrial relations manager, that the Associations were illegal under the Act and that they would have to “break up”. The employee representatives inquired of Chesnut about forming another labor organization and were advised by him to consult a lawyer, Chesnut recommending for that purpose any one of three lawyers or law firms which he named. The employees who were active in the formation and establishment of a new union at Baldwin were the leaders of the old Associations. Some of them held minor supervisory positions with the company. Among them were so-called contractors who supervised the work done by employees and, although they did not have the power to hire or fire, it does appear that their recommendations to the foremen along such lines were not unacceptable. On May 13, 1937, these employee leaders engaged an attorney (one of those recommended by Chesnut) to draft a constitution and by-laws for the new union (the Federation). Membership cards were designed and the printing of them was arranged for. And, on the same day both of the Associations were dissolved. No mention of dues having been made on the application cards, after the cards had been printed, the representatives of the Federation at their attorney’s suggestion obtained a stamp and put on the top of each application card the words and figures “Dues 250”. In its insignificance, this sum is not wholly without significance, if maintenance of union organization or payment of possible benefits be contemplated. See Titan Metal Mfg. Co. v. National Labor Relations Board, 3 Cir., 106 F.2d 254, 259, certiorari denied 308 U.S. 615, 60 S.Ct. 260, 84 L.Ed. 514. The membership drive in behalf of Federation was begun on May 17, 1937. In the course of that undertaking, sponsors of Federation made remarks to employees derogatory to any outside union. It further appears that the actors in behalf of Federation solicited memberships among employees during working hours and on company property, — a fact which justified the Board’s inference that this was done with company permission and approval. The evidence further shows that Baldwin had utilized the services of Pinkerton’s National Detective Agency, Inc., to spy on the union activities and the labor affiliations of its employees in 1935, 1936, and as late as May 31, 1937. Richard Wuest, who was plant engineer for Baldwin, participated in efforts to spy upon the meetings of the Si W. O. C. and was also instrumental in the distribution of anti-union pamphlets among the employees. Aside from what the direct evidence showed, it was for the Board to draw the reasonable inferences from the testimony. National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368. The Board’s finding that the Federation was but a successor of the Associations and subject to the same uninterrupted company domination and control was a legally permissible conclusion from the facts shown, viz., the formation of Federation by the leaders of the old Associations; Baldwin’s failure to mark a “line of fracture” between the old and new unions; the extensive and open use of company time and property for the furtherance of Federation; the active participation of contractors and other supervisory employees in promoting Federation; and the company’s manifested hostility to “outside”, unions as evidenced by its late sponsorship of company unions, its use of spies on its employees’ labor activities and its discrimination against union members. Cf. National Labor Relations Board v. Link-Belt Co., supra; National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219; and Westinghouse Electric & Mfg. Co. v. National Labor Relations Board, 2 Cir., 112 F.2d 657, affirmed per curiam by the Supreme Court, 312 U.S. 660, 61 S.Ct. 736, 85 L.Ed. 1108. In Roebling Employees Ass’n, Inc., v. National Labor Relations Board, supra, 120 F.2d at pages 294-296, we had occasion to consider the cases last above cited in relation similar to the present. What was said there need not now be repeated but it is equally applicable here. In like manner, the use of detectives as labor spies to report on “outside” union -activities of employees justified an inférence of company support of existing “inside” unions and interference with the employees’ freedom of choice. National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 251, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, and National Labor Relations Board v. Link-Belt Co., supra, 311 U.S. at page 588, 61 S.Ct. 358, 85 L.Ed. 368. This is so even in the absence of a showing that specific use was made of the information so obtained or. that the employees were ¡aware that they were being or had been spied upon. Bethlehem Steel Co. v. National Labor Relations Board, App.D.C., 120 F.2d 641, 647. The evidence in the case, both direct and circumstantial, sufficiently supports the Board’s findings material to the charges of the complaint. Being thus conclusive (Sec. 10(e)), the findings, in turn, justify the Board’s conclusions that the respondent was guilty of violating Sec. 8(1), (2), (3), and. (4) of the Act. And the consequent order,- except for portions to be amended as hereinafter directed,. is appropriate to the conclusions. It therefore constitutes a valid exercise of the Board’s power. W¿ can find no merit in the respondent’s further contentions that the Board erred in concluding that Lodge 1741 of the Amalgamated Association, etc., and S. W. O. C. are labor organizations within the meaning of Sec. 2(5) of the Act, or that the Board’s order is based oh matter not' appearing of record, or that the' injunction in paragraph 1(g) of the order is too broad. The case of National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930, upon which the respondent relies is ’ distinguishable from the present case. In the Publishing Company case the employer’s - unfair labor practice was the refusal to bargain with a particular designated employee representative, and no more. Here, the employer’s ' offenses against the Act, in complete denial of the employees’ rights ■ under Sec. 7, ran the gamut of unfair labor practices proscribed by the Act. In any case, the scope of the injunction is to be measured by the character and extent of the employer’s past conduct toward employee organization and the right to bargain collectively. In the Publishing Company case, supra, the Supreme Court plainly indicated, 312 U.S. at page 436, 61 S.Ct. at page 700, 85 L.Ed. 930, that the injunction may be sufficiently broad so as to prevent violations of the Act “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.” Nor is the question of-free speech which the respondent urges involved here. No one is restrained by the Board’s order from saying anything. One’s due accountability for the effect of his expressions is not a limitation, upon his fight to speak freely. See National Labor Relations Board v. Virginia Electric & Power Co., 62 S.Ct. 344, 86 L.Ed. -, decided December 22, 1941; also National Labor Relations Board v. New Era Die Co., 3 Cir., 118 F.2d 500, 505. Any apprehension that the order may be construed as embracing the- respondent’s labor relations with its employees at plants or divisions other than at Eddystone is groundless. The findings confirm that “The Eddystone plant of the respondent [is] the-only plant with which we are here concerned, * * *” and the order by its express terms applies to “The Baldwin Locomotive Works, Eddystone, Pennsylvania,” etc. - - The respondent now contends that .the back pay orders include losses wilfully incurred by the employees. No such suggestion was advanced before the Board. It therefore may not be raised here in the absence of “extraordinary circumstances” sufficient to excuse its not having been raised timely. Sed 10(e). Except for the form of the order, we deem the other matters argued by the respondent to be so incidental or so relatively minor as not to call for discussion. Paragraph 2(c) of the order provides that the respondent shall post the customary notices of intention to comply with specified provisions of the order. The Board consents to a modification thereof so as to require that the notices state that “the' respondent will not engage in ■ the conduct from which it is ordered to cease and desist” etc., rather than that it “will cease and desist in the manner set forth” etc. This is done to relieve the respondent of a possible implied admission of guilt of the unfair labor practices found by the Board and is in conformity with the Board’s present practice in such regard. Paragraph 2(c) of the order also requires that the notices shall contain a statement “that the respondent’s employees are free to become or remain members of Lodge 1741 of the Amalgamated Association of Iron, Steel, and Tin Workers of North America and Steel Workers Organizing Committee”, etc. The respondent argues that such a statement implies a limitation in respect of the employees’ choice of union affiliation. The Board answers that the direction is appropriate as the Amalgamated and the S. W. O. C were the organizations against which the respondent’s opposition to employee membership was exerted. While that does furnish a reason why the employer should make plain in the notices that the employees are free to become or remain members of Amalgamated or S. W. O. C., it does not justify a wording which either may imply or be taken to imply that the employees’ choice of union membership is limited to the Amalgamated or the S. W. O. C. The plainly indicated intent as well as the spirit of the National Labor Relations Act is the complete freedom of employees in their choice of a representative for collective bargaining. Good faith in the effectuation of that intent and spirit requires that an employee’s freedom to join any union he may choose be made clear and not be left to inference. Board orders have been modified accordingly. Westinghouse Electric & Mfg. Co. v. National Labor Relations Board, supra, at page 661 of 112 F.2d; Roebling Employees Ass’n, Inc., v. National Labor Relations Board, supra, 120 F.2d at page 296. Paragraph 2(c) of the Board’s order will therefore be modified so as to be and read as follows : “ 2 * * * “(c) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1(a) to 1(g) of this Order, both inclusive, and that it will take the affirmative action set forth in paragraphs 2(a) and (b) of this Order; and that the respondent’s employees are free to become or remain members of Lodge 1741 of the Amalgamated Association of Iron, Steel, and Tin Workers of North America and Steel Workers Organizing Committee, or to organize or join any union they choose, whether or not it is affiliated with a national union, and that the respondent will not discriminate against any employee because of membership in these or any such organizations;” Paragraph 2(b) of the order, wherein reparation is awarded to five named employees, will be modified so as to eliminate therefrom the direction to deduct from the amount of back pay, otherwise due the employees, money received by them for work performed on work-relief projects and to pay over the amount so deducted to the government or governments which supplied the funds for such work-relief projects. Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6; National Labor Relations Board v. Reed & Prince Mfg. Co., 1 Cir., 118 F.2d 874, 888, certiorari denied 313 U.S. 595, 61 S.Ct. 1119, 85 L.Ed. 1549; National Labor Relations Board v. New Era Die Co., supra, 118 F.2d at page 506. As herein modified, the order will be enforced. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014; National Labor Relations Board v. Bradford Dyeing Ass’n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226. gee Finletter, The Law of Bankruptcy Reorganization (1939), at pp. 205, 200, for a cogent discussion of the matter. Bethlehem Shipbuilding Corp. Limited, v. National Labor Relations Board, 1 Cir., 114 F.2d 930, 933; Union Drawn Steel Co. v. National Labor Relations Board, 3 Cir., 109 F.2d 587, 594; National Labor Relations Board v. Colten, 6 Cir., 105 E.2d 179, 182. In a registration statement filed with the Securities Exchange Commission on August 6, 1937, the respondent averred that “No material change is to be effected pursuant to the Plan in the general character of the business of the registrant [respondent] * * *.” Board’s Appendix, pp. 954-958. Charles D. MacGillivray, who was Vice-President and Secretary of Baldwin Locomotive Works before, during and after the reorganization in bankruptcy, .was called as a witness by the respondent at the start of the hearing in connection with motions to quash made by respondent’s trial counsel. MacGillivray testified that on October 1, 1938, a week following the company’s discharge in'the reorganization proceeding, George Houston, President of the company, resigned and Charles E. Brinley, who had been a voting trustee under the reorganization plan since April preceding, became President. According to the ’ witness, in “the day to day management” of the company, Brin-ley was the only man that had been brought in from the outside since 1935. Note, Back Pay Orders under the National Labor Relations Act (1939) 48 Tale Law Journal 1265. Section 14 of the National. Labor Relations Act provides that “Wherever the application of the provisions of section 77B [207 of Title 11], paragraphs (?) and (m) [reorganization provisions], conflicts with the application of the provisions of this Act [sections 151 — 166 of this title], this Act [such sections] shall prevail: Provided, That in any situation where the provisions of this Act [sections 151-166 of this title] cannot be validly enforced, the provisions of such other Acts [section] shall remain in full force. and effect.” Paragraph 29 of the respondent’s answer to the complaint was as follows: “29. Notwithstanding said requirements of the Act, the attitude and conduct of the Board,'its members, officers, agents and employees, have been marked by such interest, sympathy, partiality and active aid to the persons and organizations (including their affiliates) on whose charge the Board instituted this proceeding and to the general class of such persons and organizations, and by such bias against respondent and Federation and against the general classes to which respondent and Federation respectively belong, as to deprive respondent of life, liberty and property without due process of law in violation of the Fifth Amendment of the Constitution. The deprivation above mentioned is not less, but indeed is greater, if as is suspected the Board is partly unconscious in its attitude and conduct above described.” While personal bias is good cause for disqualifying a judge or other trial officer, unless the bias be prompted or supported by “a direct, personal, substantial, pecuniary interest” in the conclusion to be reached, no question of constitutional validity is thereby involved. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749, 50 A.L.R. 1243. The usual form of exception was as follow^: “Hr. Montague [respondent’s “sole trial attorney”]. I respectfully except, on the ground that your Honor is evincing an attitude of bias and prejudice, and also a denial of due process under the fifth amendment of the Constitution.” The request for subpoenas submitted by respondent’s trial attorney designated, inter alia, two members of the National Labor Relations Board, John L. Lewis, Chairman of the C.I.O.,. Philip Murray, Chairman of the S.W.O.C., and John Doe (the real name being unknown), chief executive officer of Amalgamated Asso. of Iron, Steel and Tin Workers of North America. Counsel also asked a sub-poeña duces tecum on Chairman Madden, summoning documentary matter some of which related to the work of the Board and some to Mr. Madden. Section 24 of the Board’s Rules and Regulations, Series 1, as amended, is carried forward as the same section in the Board’s current Rules and Regulations', Series 2. as amended. Bethlehem Steel Co. v. National Labor Relations Board, App.D.C., 120 F.2d 641, 653; Bethlehem Shipbuilding Corp. v. National Labor Relations Board, 1 Cir., 114 F.2d 980, 942; National Labor Relations Board v. Lane Cotton Mills Co., 5 Cir., 108 F.2d 568, 570; Inland Steel Co. v. National Labor Relations Board, 7 Cir., 105 F.2d 246, 251; Cupples Company Manufacturers v. National Labor Relations Board, 8 Cir., 103 F.2d 953, 957, where tbe court said: “The Board is not precluded from obtaining aid of assistants.” Practically the first hundred pages of the transcript of the hearing are taken up with motions by respondent’s trial attorney to quash the complaint, the ar'gument thereon- and the action taken by the trial examiner.
CLARK] Circuit Judge (concurring and dissenting). I agree with my learned colleagues that the respondent has failed to make its point about the trial examiner and about not being chargeable with unfair labor practices while in' reorganization. As the preparation of this opinion has required me to give some attention to the record, I might even agree with them that the union disestablished by the Labor Board was most decidedly company dominated. However, inasmuch as it is my view that this Court should remand the case before passing upon that issue, I am filing this opinion. As I approach the question of the trial examiner’s bias from a somewhat different point of view, I am including discussion of that matter also. The majority opinion sets forth in footnote 10 the form respondent’s counsel employed from the very beginning of the sixteen thousand page record. He only varied it to introduce rather irritating elaborations. The fact is that a departure from the-judicial, shall we say norm or shall we say ideal, does not seem to be a matter of due process at all. Because of the rigidity which Federalism imposes 'on constitutional law and because draftsmen speak before and not after the event, the Fifth Amendment -is not applicable. The early English common -law was confused by Sir William Blackstone. He misinterpreted a remark of Lord Coke’s and expounded the view that the judicial office should be held in such high esteem that it's individual holders were immune to disputable disqualification. So bias, a motivation outside of argument, and prejudice, a motivation without argument, require the intangible proof of words, conduct or even attitude, whereas interest, relationship or advocacy in the cause are external facts automatically demonstrable. So unless the source of pollution is patent, filtration through minds worthy of the bench was presumed. 'We can quite understand an unwillingness to acknowledge that justice dispensed by biased and prejudiced judges is due process. It obviously is not if one may speak currently. Some of the inferior Federal Courts have talked rather glibly and without much analysis of partiality and process. The subject has only twice been considered in the Supreme Court and in both instances by way of dictlim. In the earlier case the Court permitted a conviction for murder in a State Court to stand although only the “preponderance” of the' evidence indicated the sanity of one of the jurors. In doing so, Mr. Justice Lurton observed that “due process implies a tribunal both impartial and mentally competent.'” Any experienced trial judge may smile at the last naive tribute to some of the jurors a too complacent method of selection inflicts on the courts. Many professors of law write as if the same subject in its judicial connotation would afford them some amusement. The dictum in the later case makes it plain that the earlier learned justice must have been speaking colloquially rather than by the book. Chief Justice Taft says: “All questions of judicial' qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. Wheeling v. Black, 25 W.Va. 266, 270. But it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching- a conclusion against him in his case.” Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749, 50 A.L.R. 1243. It is clear, then, that counsel’s coupling of the objection for bias and prejudice with the constitutional shibboleth is inaccurate. Is that inaccuracy a matter of substance or of form? The writer thinks it substantial in this sense. It is true that judicial impropriety of any kind may constitute reversible error. In that aspect the courts are not limited to the standards of 1789. It is also true that we sit as an appellate court in Labor Board cases. If accordingly the Court finds bias and prejudice, it can send the litigation back for correction and retrial thereafter. Whether it will do so may be another matter. Its action may depend on such questions as timeliness and waiver for failure to act in good season. Those considerations might very well take on additional complications if the Court must be concerned with the loss of constitutional rights. It is not necessary to .discuss here the shades and niceties of the ascription to administrative bodies of judicial functions. That subject is a complicated one. It is conceded here that the Labor Board has sufficient of that ascription to require impartiality in its members. Our Court has already so decided. Another Board has insisted on it for itself. Nor has the requirement ever been thought irrelevant to examiners. In fact, there seem to have been an unfortunate number of instances where bias and prejudice has been charged to Labor Board Examiners. We find them in both the reports of the Board and of the reviewing authorities. The frequency of the charge here contrasts unfavorably with the few reported cases on the subject in the analogous field of court appointed subordinates. The appropriate section of the Digest reveals only nine cases in two hundred years' as against six in seven years. The Labor Board Examiner seems somewhat of a legal hermaphrodite. Judicial, like other human bodies, suffer from limitations of time and space. To overcome them they early resorted to what might be termed the tentacle system. Its earliest emanation appears to have eventuated from the method of taking testimony in Chancery. As the judge, unlike the jury, was supposed to be able to read, the advantages of observation of demeanor were felt outweighed by the opportunity -for quiet study of the written page. So evidence was by interrogatory and their answering was supervised by Examiners either standing or appointed pro hac vice. At first the task was one of collection and collation, and the subordinate court officer had only the power and discretion necessary to the accomplishment of that more or less ministerial task. That it was not and could not be quite colorless is disclosed in the ancient rules for the guidance of Examiners. Once having intrusted discretion it was easy to expand its limits and make the deputization more actual. So we find the ancient office of Master in Chancery. His duty was not only to collect and collate but also to report and recommend. With the growth of the centralized and centrally placed quasi-judicial body, the time-space factor compelled an increased resort to both kinds of assistant. So nearly everyone of the Federal Boards employs some kind of field hearer. The Labor Board Examiner at first blush seems to fall into the more important and elevated category. He may be called on, as here, to file an intermediate report with recommendations. As he need not be required to do so and as even his unexcepted-to recommendations are not always treated with much respect by the parent board, his position is, as the writer has said, somewhat hybrid. But whether more strictly an examiner or, a fortiori, a master, he has not the automatic character of the slot machine or the stenographer and so is subject to disqualification for failure to be impartial. • The law exists for the correction and not for the commission of errors. As a corollary the mistaken course must be halted as soon as perceived. The respondent perceived an alleged bias here even before it occurred. It complained a multitude of times, practically whenever its counsel paused for breath. Yet it made no move to correct the error. That move was both simple and patient. The examiner, like the master, is the creature of his creator. The Board and the Court, giveth and so can take away. It should have been asked to dp so. In some instances it has been. \Ve are surprised that in the cases where the point has arisen the analogy between the present day examiner and his ancient prototype, the Master in Chancery, has not been thought of. As long ago as 1804, Lord Eldon acceded to a motion that a reference should be removed to the office of another master. That has been the universal practice since. A judicial body which appoints an assistant clothes him with its own qualities and if that clothing does not fit a new wearer should be instantly secured. As this can be done, it must-be done. Otherwise we have the acquiescence in error of which the writer has spoken. I can scarcely believe that the difference between a removable examiner and a fixed judge is not sufficiently plain both to the litigants engaged below and the court engaged above. The writer prescribes, then what he believes to be the sound rule. A litigant before a Labor Board Examiner must demand his replacement as soon as it deems his conduct improper or else he must forever hold his peace. To say such a complaint is of no avail .impugns the integrity of the Board first and of the Circuit Court of Appeals second. To say it will “further- antagonize” the Examiner is surely a bootstrap argument. Any showing of such further antagonism can in its turn be objected to and so on until the litigant finally comes to the courts with no loss other- than having been compelled to the exertion- of helping judicial bodies to correct error when it occurs. Yet these are the arguments adduced by the United States judges holding contra our Court’s view. The writer has stressed the chronological point for this reason. Counsel for the Board do not seem to be sufficiently interested in orderly procedure to trouble about it. So I feel obliged to caution those practicing before Labor Board Examiners that they cannot speculate on an unfavorable decision by the insurance of a charge of bias. Such a course taints the charge itself with insincerity. How true that taint is- in the principal case is painfully apparent. Respondent finds the lack of “dueness” on the part of the trial Examiner in the following asserted conduct: his refusal to permit the statement of the grounds for certain exceptions, his refusal to issue certain subpoenas, his refusal to permit certain questions, and finally his personal participation in the questioning of certain witnesses. To begin with, respondent’s counsel displays a complete misconception of the mean ing of a partial mind. Such a mind is one that is closed to justice because some factor dehors the record prevents it from functioning. If it does operate, the fact that counsel does not agree with that operation or even that no one agrees with that operation may indicate such matters as lack of education, legal or otherwise, lack of I.Q., lack of judicial temperament et cetera, but it does not spell lack of fairness. So the courts forbid any deduction of bias and prejudice from adverse rulings. One might, although counsel here does not, suggest a possible exception, if the unfavorable rulings are frequent and stupid enough. I say possible, but not probable, exception because to make the inference logical would require a mental examination of the particular judicial officer. The writer confesses to have never before seen the word “prevent” used to describe such adverse rulings. Counsel seems much addicted thereto and uses it many times. It carries with it a flavor of physical force and seems intended to give us some impression of violence and an outrage upon trial decencies and amenities. The rose is no less redolent. The “prevention” of certain questions on cross-examination and of certain offers and questions on direct is not raised by the use of the word into anything more than an adverse ruling. Among the preventions listed is one for obtaining subpoenas (both ad testificandum and duces tecum) for the production of evidence on two certain issues. The respondent exhibits some confusion as to the exact nature of the process for compelling testimony. As is known its origin springs from the need to correct the “meddling and maintenance” theory that at first marked the transition from the early jury-neighbor trial to our modern system. That correction had been made prior to the Constitution and so under the theory earlier discussed it would seem to have become part of due process. In criminal cases the Constitution goes beyond the vague and general into the particulars. In civil cases the statutory grant to courts is so universal that the question does not arise. Sometimes it has not been accorded to administrative boards. There has been some rather inconclusive discussion about this in relation to due process. The National Labor Relations Act is quite specific. As the word used is “power”, the issuance is not automatic as it is with the United States Courts. The Board can therefore impose qualifications. At the time of the principal case it had done so. So had many of the other administrative agencies. We are only concerned with their reasonableness. The requirement of relevancy falls within that bracket. It is common-as to all subpoenas duces tecum, and as to witnesses from a distance. To have the judicial officer pass on the evidence before the burden is imposed rather than afterwards saves everybody and is manifestly sensible. The Board’s subpoena rule involves more than the fairness of the requirement of relevancy. This because it is one-sided and the proscription applies to the respondent only. Its reasonableness has been supported and questioned. To do the latter in the constitutional sense would, the writer suggests, imply the holding that a litigant has some vested right in “preventing” his opponent from bothering people unnecessarily. In other words, if he has the privilege of bringing in all relevant evidence, or more accurately perhaps the right to reverse for not being granted such privilege, he can scarcely be injured by his opponents having wasted everyone’s time and money by -getting up to the barrier with stuff afterwards found to be just that. As a matter of fact, it is rather doubtful if evidence that is irrelevant and no worse offered by and admitted for your opponent is error without more. For that reason the writer prefers the cases which hold that the refusal to issue subpoenas must have been affirmatively prejudicial. That, of course, cannot exist if the evidence called for by them is irrelevant or -inopportune. This is most plainly the case. ' The respondent suggests it wanted to show that the S.W.O.C. is not a “seli-organization”. The prefixal use qf “self” occurs in numerous compounds and is grammatically correct. The resulting term, however, must convey some meaning. This self-organization standing alone, does not do and so we must turn, therefore, to the-guarantee of the National Labor Relations. Act, for interpretation. There it is used in the phrase “the. right to self-organization”, which is a rather awkward way of saying “the right to organize themselves” and is fully met by any proof that the S.W., O.C. is composed of employees of the respondent who have formed any kind of association. This proof the trial examiner was expressly willing to receive and to