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Although we do not agree that the compromise agreement estops the Board from proceeding herein, we believe that effective administration of the Act requires that the Board's agents have the respect and confidence of labor organizations and employers with whom their work brings them in contact. Repudiation of agreements entered into and relied on in good faith necessarily impairs such respect and confidence * * * We believe the policies of the Act will best be effectuated by giving effect to the agreement and refraining from consideration of the alleged unfair labor practices.

9. PRECAUTIONARY ORDERS

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Section 10(c) authorizes the Board, upon finding that an employer has engaged in unfair labor practices, to order the employer "to take such affirmative action. * as will effectuate the policies of this act." Accordingly, if an employer commits unfair labor practices from which it is clear that he is predisposed to commit certain other unfair labor practices, the Board, in order to effectuate the policies of the act, has adapted the order to the situation calling for relief. Thus in Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23,5 the employer was found to have engaged in numerous unfair labor practices within the meaning of section 8 (1) (2) and (3) of the act, although not within the meaning of section 8 (5). The Board said:

The only reason for our not finding that the respondent refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act is that the evidence does not establish that the Union represented a majority of the employees in the appropriate unit. The evidence is insufficient in this respect because the Union feared to disclose the names of its members lest the respondent discharge them. The respondent's attitude toward the Union is one of pronounced and aggressive hostility. Its refusal to meet with the Union was absolute. We are convinced from the record that it was the respondent's intention not to bargain with the Union, whether or not it represented a majority of the employees, and that this intention still persists.

Since we are directing that an election be conducted among the employees in the appropriate unit to determine whether or not they desire to be represented by the Union, and since the respondent is predisposed to commit unfair labor practices, we are of the opinion that the policies of the Act will best be effectuated by requiring the respondent to bargain collectively with the Union upon request, in the event that the Union is designated in the election by a majority of the employees as their representative for purposes of collective bargaining, and is certified by this Board as the exclusive representative of all employees in the appropriate unit for such purposes.“

Also Matter of Link Belt Company and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America et al., 12 N. L. R. B. 854, petition to review filed May 25, 1939 (C. C. A. 7); Matter of Godchaux Sugars, Inc. and Sugar M Workers' Union, Locals No. 21177 and No. 2188, affliated with the American Federation of Labor, 12 N. L. R. B. 568 (the employer consented to an election and the Regional Director agreed not to press charges filed by a labor organization); cf. Matter of Shuron Optical Company, Inc., and Albert L. Ludrick, 11 N. L. R. B. 859 (the employer and the labor organization entered into an agreement purporting to compromise unfair labor practices; pursuant there'o the union requested permission of the Regional Director to withdraw charges filed; the Regional Director, in ignorance of the agreement, granted the union's request; the Poard found that under these circumstances the Regional Director had not consented to or approved the agreement, and accordingly, considered the charges after they were filed by an employee who alleged that he had been discriminatorily discharged).

es 10 N. L. R. B. 88. petition for enforcement filed May 29, 1939 (C. C. A. 6).

In Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. R. B. 789, petition to review filed May 25, 1939 (C. C. A. 10), the Board found that the respondent had refused to bargain collectively with the union with respect to two appropriate units, but that with respect to a third the record failed to show a majority for the union at the time of an alleged refusal to bargain. The Board said:

"Since the respondent has in two instances violated Section 8 (5) of the Act, and in another has evidenced a similar attitude of noncompliance, we believe that the policies of the Act will best be effectuated by requiring the respondent to bargain collectively with the Union upon request as the representative of the employees of the respondent in the appropriate unit at Salt Creek Field, in the event that the Union is designated as bargaining representative by a majority of such employees."

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In another case, the Board found that the respondent had engaged in unfair labor practices through the discharge and lay-offs of a number of employees, but dismissed the allegation of discrimination as to four other employees. The Board ordered the respondent to place these four employees upon a preferential list because in view of the respondent's unfair labor practices as set forth above, there is grave danger that the respondent will not reemploy these four individuals even if their former or substantially equivalent positions are open. In order to effectuate the policies of the Act, we will require the respondent to place [these four employees] upon a preferential list for employment

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as it arises." 67

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10. REQUIREMENTS THAT AN EMPLOYER PUBLICIZE TERMS OF BOARD ORDERS AMONG EMPLOYEES

The Board requires an employer who has engaged in unfair labor practices to publicize the terms of the Board order against him among his employees. The exact wording of the notice which the employer is ordered to post in his place of business or to communicate to individual employees necessarily varies somewhat from case to case. Although the Board formerly required that posted notices remain posted for at least 30 consecutive days, the period now normally required is 60 days.70

I. MISCELLANEOUS

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This section deals with various problems of pleading, practice and procedure which have been raised and discussed in the Board's decisions.

Since the function of the charges, upon which Board complaints are issued, is to call the attention of the Board to the fact that unfair labor practices are alleged to have been committed, the Board has held that a respondent is not denied a fair hearing if he is not furnished with a copy of the charge, since service upon him of a complaint gives him full notice of all issues to be tried.”

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Although not required by the act, the Board has adopted the practice of serving a copy of the complaint upon an allegedly company-dominated organization. Moreover, the Board requires that whenever any contract is put in issue by a complaint, any labor

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Matter of American Numbering Machine Company and International Association of Machinists, District #15, 10 N. L. R. B. 536; see also Matter of Luckenbach Stemship Company, Inc., and Maritime Office Employees Association, International Longshoremen and Warehousemen's Union, Local 1-44, 12 N. L. R. B. 1333.

See Third Annual Report at p. 214

Ibid.

For example. Matter of Sigmund Freisinger, Doing Business under the name and style of North River Yarn Dyers and Tertile Workers Organizing Committee; 10 N. L. R. B. 1043, Matter of L. C. Smith & Corona Typewrters, Inc., and International Metal Polishers, Buffers and Platers Union of North America, 11 N. L. R. B. 1382. The Rules and Regulations-Series 2, recently issued by the Board, provide for the service of a complaint and a copy of the charge upon which the complaint is based.

N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., et al.. 303 U. S. 261, reversing 91 F. (2d) 178 (C. C. A. 3), and enforcing Matter of Pennsylvania Greyhound Lines, Inc., et al., and Local Division No. 1053 of The Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1. See also Matter of Armour & Company and Packing House Workers, Local 347, 8 N. L. R. B. 1100, petition to review filed October 1, 1938 (C. C. A. 7).

13 National Labor Relations Board Rules and Regulations--Series 2, Article II, Section 5.

organization which is a party to such contract but not alleged to be company-dominated must be made a party to the proceeding.

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Since the act contemplates that cases will be handled speedily, the Board follows settled judicial tradition and refuses to reopen the record to admit evidence available at the time of the hearing, but which the party requesting reopening had failed to introduce, although afforded full opportunity to do so." Similarly, a request for a continuance will be denied unless supported by a substantial reason. Thus in Matter of Ronni Parfum Inc. et al. and United Mine Workers of America, District No. 50, Chemical Division, et al.,78 the respondent requested a continuance on the ground that its two principal witnesses had made arrangements for a vacation in Florida. The Trial Examiner denied this motion, whereupon counsel for the respondent withdrew from the hearing. The hearing nevertheless proceeded. The Board held that denial of the continuance was proper and stated:

It is plain here that there could have been no emergency to justify the absence of the respondent's principal witnesses since both trips were admittedly arranged "a long time prior to December 1, 1937" [the approximate date of the hearing]. Moreover, ample notice of the hearing was given to the respondents. In the absence of an adequate showing of substantial cause, private convenience must accommodate itself to public necessity.

In order properly to administer the act, the Board requires that its hearings be conducted in orderly fashion. In Matter of Weirton Steel Company and Steel Workers Organizing Committee,79 the Trial Examiner excluded the respondent's attorney for contemptuous conduct. On appeal from this ruling, the Board, after hearing testimony and oral argument, found that counsel had been guilty of contemptuous conduct and held that the exclusion was proper and did not deprive the respondent of due process of law. The Board stated:

There is no question here of punishment for contempt of court, or of disciplinary proceedings looking to the disbarment of an attorney. The Trial Examiner's ruling simply applies a rule made and issued by the Board pursuant to statutory authority. The rule provides: "Contemptuous conduct at any hearing before a Trial Examiner or before the Board shall be ground for exclusion from the hearing." 50 It is a reasonable and necessary rule. Exercise of the Board's functions requires that numerous hearings be held before Trial Examiners designated by it to conduct them. The rule intends that in the interest of orderly and expeditious hearings contemptuous persons may be excluded. It applies to lawyers and to laymen alike. Its purpose is not to punish offenses against the Board's dignity, but to assure and defend the control of the Board's hearings

76 National Labor Relations Board Rules and Regulations-Series 2, Article II, Section 5. provides in part: "Whenever any labor organization, not the subject of any 8 (2) allegation in the complaint, is a party to any contract with the respondent the legality of which is put in issue by any allegation of the complaint, such labor organization shall be made a party to the proceeding." See Matter of Ward Baking Company and Committee for Industrial Organization, 8 N. L. R. B. 558. Cf. Consolidated Edison Co. et al. v. N. L. R. B. et al., 305 U. S. 197, aff'g as modified, 95 F. (2d) 390 (C. C. A. 2), enforcing Matter of Consolidated Edison Company of New York, Inc., et al., and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B. 71.

Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219, enforced as modified November 8, 1939 (C. C. A. 3); Matter of Consumers' Power Company, a corporation, and Local No. 740, United Electrical, Radio, and Machine Workers of America, 9 N. L. R. B. 701, petition to review filed January 4, 1939 (C C. A. 6).

788 N. L. R. B. 323, enforced N. L. R. B. v. Ronni Parfum, Inc., 104 F. (2d) 1017 (C. C. A. 2).

79 8 N. L. R. B. 581.

So This is Article II, Section 31, of National Labor Relations Board Rules and Regulations Series 2.

by its agents. When challenged by contemptuous conduct during hearings, the Board, lacking power to punish for contempt, must have and does have the elementary power to exclude the guilty individual or individuals.

In this case, the respondent was also represented by several other attorneys. The Board, in affirming the exclusion, directed that the hearing be adjourned, "to enable the respondent to retain other counsel, or otherwise to prepare to resume the presentation of its defense."

If the conduct of the Trial Examiner at a hearing results in a denial of a fair hearing, the Board will set aside the entire record and order that a new hearing be held. The Board has so ordered in one case where a statement of the Trial Examiner raised an implication of bias against the respondent,81 and in two others where the Trial Examiner erroneously excluded evidence which the Board found was "competent, relevant, and material to the issues." 82

Matter of Express Publishing Company and Mailers Local Union No. 41, 8 N. L. R. B. 162. The evidence of bias on the part of the Trial Examiner was found in a statement by him that he might be influenced by an editorial attacking the Board which had appeared in a newspaper published by the respondent.

Matter of Owens-Illinois Glass Company and Federation of Flat Glass Workers of America, 11 N. L. R. B. 38; Matter of Bercut-Richards Packing Co., et al, and United Cannery, Agricultural, Packing and Allied Workers of America, 13 N. L. R. B., No. 14.

VIII. JURISDICTION

The Board's jurisdiction, as established in the Jones & Laughlin and companion cases, extends to the prevention and rectification of unfair labor practices occurring in industries the interruption of which by industrial strife would lead to interference with or diversions of the free flow of interstate or foreign commerce. During the past fiscal year efforts were made to persuade the courts to engraft several qualifications upon these principles.

In the first place it was argued that, if the intrastate activities of an employer outweigh his interstate activities in volume or importance, his entire business is immune from regulation. The Supreme Court's rejection of this contention in Santa Cruz Fruit Packing Co. v. N. L. R. B., 303 U. S. 4532 was reaffirmed in Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, 221, and was followed by the Fourth Circuit in N. L. R. B. v. A. S. Abell Co., 97 F. (2d) 951, 954.

It was further urged upon the courts that an employer's operations must be large enough to be of national importance in order to fall within the ambit of the Act. This view also was rejected by the Supreme Court. In N. L. R. B. v. Fainblatt, 306 U. S. 606-7, the Court declared:

The power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small

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The language of the National Labor Relations Act seems to make it plain that Congress has set no restrictions upon the jurisdiction of the Board to be determined or fixed exclusively by reference to the volume of interstate commerce involved. * ** We can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis.

There are not a few industries in the United States which, though conducted by relatively small units, contribute in the aggregate a vast volume of interstate commerce.

This holding was subsequently relied on by the Eighth Circuit in holding that the Board had jurisdiction over a coal mine producing only 267,495 tons annually, less than 85,000 tons of which were disposed of to instrumentalities of interstate commerce and to out-ofstate customers. N. L. R. B. v. Crowe Coal Co., 104 F. (2d) 633 (C. C. A. 8), certiorari denied, October 9, 1939.

Another limiting test rejected by the courts during the year related to the question of title to goods manufactured. In N. L. R. B. v. Fainblatt, 306 U. S. 601, 608, it was contended that a local manufacturer who merely processed goods owned by others was beyond the reach of Congressional power. The Supreme Court held:

We cannot say, other things being equal, that the tendency [to obstruct shipments in interstate commerce] differs in kind, quantity or effect merely because the merchandise which the manufacturer ships, instead of being his own, is that of the consignee or his customers in other states.

1 N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1; N. L. R. B. v. FriedmanHarry Marks Clothing Co., 301 U. S. 58; N. L. R. B. v. Fruehauf Trailer Co., 301 U. S. 49. See the Board's Third Annual Report, p. 217.

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