Berkshire Knitting Mills

National Labor Relations Board - Board Decisions

Dec 23, 1941

37 N.L.R.B. 926 (N.L.R.B. 1941)

In the Matter of BERKSHIRE KNITTING MILLS and AMERICAN FED-
ERATION' OF HOSIERY WORKERS, BRANCH #10
Case No. C-385
Mr. Samuel G. Zack and Mr. Bernard Bralove, for the Board.
Mr. Wellington M. B,ertolet and Mr. Frederick J. Bertolet, of
Reading, Pa., and Mr. Joseph W. Henderson, of Philadelphia, Pa., for.
the respondent.
Mr. Isadore Katz, of Philadelphia, Pa., for Branch 10.
Mr. William M. Rutter and Mr. George Eves, of Reading, Pa.,
for the Association.
Mr. Joseph B. Robison, of counsel to the Board.
DECISION ON ORDER TO SHOW CAUSE
AND
ORDER
December 23, 1941
On November 3, 1939, the National Labor Relations Board, herein
called the Board, issued its Decision and Order in the above -entitled
case. ' On November 10, 1939, the respondent herein filed a petition
for review of the Board 's Order in the Circuit Court of Appeals
for the Third Circuit; thereafter , it filed a petition to adduce addi-
tional evidence , in which it alleged, inter alia, that one of the members
of the Board- who participated in the Decision and Order of Novem-
ber 3, 1939 , was disqualified by reason of bias . On October 14, 1941,
the Circuit Court entered a resettled order remanding the case to
the Board , and directing it to vacate its earlier decision , to hear
oral argument , to reconsider the case, to make appropriate findings,
and to enter an appropriate order.2 On October 29 , 1941, the Board
issued an Order and Notice,3 in which it set aside its Decision and
Order of November 3, 1939, and certain specified actions taken prior
to the issuance of that decision . The parties were directed to show
cause, on or before November 20, 1941, why the Board should not deny
117 N. L . R B 239.
8 Berkshire Knitting Mills v. National Labor Relations Board, October , term, 1940,
No. 7254.
8 36NLRB518.
37 N. L. R. B., No. 155.
926
BERKSHIRE. KNITTING MILLS 927
the 'application made by the respondent on November 26, 1937, for
a subpena daces tecurn directed to Luther D. Adams, and why the
Board should not direct the issuance of Proposed Findings of Fact,
Conclusions of Law, and Order.
Thereafter , Berkshire Employees Association , Inc., of the Berk-
shire Knitting Mills, intervenor , herein called the Association, filed
objections to the action proposed in the Order and Notice of October
29, 1941 , and a motion that the Board hear evidence on the question
of the alleged bias, or, in the alternative , direct the holding of a
new hearing before a Trial Examiner . The respondent filed a motion
to adduce testimony concerning the alleged bias and concerning cer-
tain acts and conduct of various members of the Board 's staff. The
respondent also filed objections to the issuance of proposed findings
and to the denial of its application for a subpena . Briefs were filed
by the respondent and the Association . On November 25, 1941,
the respondent , the Association , and American Federation of Hosiery
Workers, Branch #10, herein called Branch 10 , appeared by counsel
at oral argument before the Board in Washington, D. C., on the above
objections and motions.
The motions of the Association and the respondent that the Board
hear evidence concerning the alleged bias of the former Board mem-
ber are without merit. The resettled Decree of the Circuit Court
of Appeals expressly directs that "The Board . . . shall proceed,
without receiving such additional evidence and without determining
the question of Mr. Edwin S. Smith's alleged disqualification." More-
over, prior to the termination of the hearing before the Trial Exam-
iner, only one action of a judicial nature had been taken by the Board
relevant to these proceedings , to wit, the denial of the respondent's
application for a subpena daces tecum directed to Luther D. Adams.
That action has now been set aside , and the Board has reconsidered
the application as though newly made. As noted below , the appli-
cation is ' granted in part. It is clear that the former Board member's
participation in the earlier ruling on the application can have no
present effect. No steps taken by the Board subsequent to the termi-
nation of the hearing before the Trial Examiner could have had a
retroactive effect on the record as theretofore made. It is on that
record that the Court has ordered us to decide the case; any question
regarding the validity of the rulings made by the Trial Examiner
during compilation of the record is open for review by the Board
at the present time. We conclude that the alleged bias can only be
considered as having affected the earlier consideration of the case
by the Board itself, and not the making of the record on which
such consideration was had . Contrary to the contention of the Asso-
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciation, we believe that the Circuit Court of Appeals so intended
in its opinion issued on June 19, 1941, 121 F . ( 2d) 235, when it said:
If the circumstances alleged are proved Berkshire did not have a
hearing'before an impartial tribunal , but one in which one mem-
ber of the body which made exceedingly important findings of
fact had already thrown his weight on the other side.
In any event , the resettled Decree, which governs our action herein,
is unambiguous.
The respondent 's motion to adduce likewise proffers certain evi-
dence concerning actions taken by various remembers of the Board's
staff. As the Circuit Court of Appeals has held, the proffered evi-
dence is insufficient to show any irregularities in ' the proceedings.
The above described motions are denied and the objections to the
issuance of Proposed Findings of Fact, Conclusions of Law, and
Order are overruled. Such findings shall be issued after the con-
clusion of the further hearing described below.
We turn now to a consideration of the respondent 's application
for a subpena . That application , which is dated November 26, 1937,
was filed prior to the commencement of the hearing before the Trial
Examiner on November 29, 1937. It requested the issuance of a
subpena directing the appearance of Luther D. Adams, president of
Branch 10 , at the hearing , and the production of certain documentary
evidence described below. It specified only that the evidence sought
was "essential to the defense of Berkshire Knitting Mills, respondent,
to the said complaint." The Rules and Regulations of the Board
then in effect regarding the issuance of subpenas read as follows:
Any member of the Board may issue subpenas requiring the
attendance and testimony of witnesses and the production of
any evidence , including books, records , correspondence , or doc-
uments that relate to any matter , under investigation or in
question , before the Board, its member, agent , or agency, con-
ducting the hearing or investigation . Applications for the issu-
ance of such subpenas may be filed by any party to the
proceedings with the Regional Director , or, during the hearing,
with the Trial Examiner . Such applications 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 4
* National Labor Relations Board Rules and Regulations, Series 1, as amended, Article
II, Section 21. The Board has since amended its Rules and Regulations by providing that
applications for subpenas may be granted or denied by those of its Regional Directors
and Trial Examiners to whom they are presented. The requirements of the Rules and
Regulations regarding the form of applications for subpenas have not been changed.
National Labor Relations Board Rules and Regulations , Series 2 , as amended, Article II,
Section 21.
BERKSHIRE KNITTING MILLS 929
The respondent's application, as originally filed, did not comply
with the requirements of the Board's Rules and Regulations regard-
ing the specification of "the nature of the facts to be proved." How-
ever, in its brief and argument on the question whether the appli-
cation should be granted, the respondent has stated that the evidence
sought by the subpena
. . . would show, inter alia, two things (1) that the strike of
October 1936 was called for economic reasons and not because
of any unfair labor practices of the respondent, and (2) that
the charges which had been signed under oath by Luther D.
Adams as president of Branch No. 10 of the American Federa-
tion of Hosiery Workers were made in bad faith.
We shall consider this statement, in so far as it specifies the purpose
of the original application, as supplementing that application and
as a sufficient specification, within the requirement of the Board's
Rules and Regulations; of "the nature of the facts to be proved."
The subpena will be denied in so far as it is sought to prove that
the charges were filed by Branch 10 in bad faith. This proceeding
is based on the Board's complaint against the respondent, and we
do not consider relevant the motive of the person or organization
filing the charges which invoked the issuance of the Board's com-
plaint.5
On the issue of the strike, we have concluded that there are reason-
able grounds to believe that the testimony of Adams may be relevant.
In addition to the testimony of Adams, the application requests the
production of the following items of documentary evidence.
1. Roll of members of American Federation of Hosiery
Workers, Branch #10, who were employees of Berkshire Knit-
ting Mills on September 28, 1936, and a roll of said members
who are now so employed.
2. Copies of all letters, pamphlets, circulars, advertisements,
and statements issued and/or caused to be made and issued relat-
ing to or pertaining to the strike alleged to have been declared
against Berkshire Knitting Mills by the American Federation
of Hosiery Workers, Branch #10, on or about September 1936.
3. An itemized list of expenses incurred and all payments
made in connection with or pertaining to said alleged strike from
September 28, 1936 to date.
The respondent has not shown, in either its brief or argument, the
.possible relevance of the material described in the first and third of
these items. We are of the opinion that such material is not relevant
5 See Donnelly Garm ent Company v. National Labor Relations Board, decided November 6,
1941 , (C. C. A. 8).
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any of the issues properly raised by the pleadings in this case.
There are reasonable grounds to believe, however, that the documents
described in the second item, or some of them, may be relevant to the
issue of the cause of the strike.
The respondent's objection to the Board's proposed order denying
its application for a subpena is sustained, except as to items 1 and 3
of the application, as to which the objection is overruled. The appli-
cation will be granted in part and denied in part. We are this day
issuing and sending to the respondent a subpena ad testificandum
and a subpena duces tecum directing Adams to appear and testify at
a hearing and to bring with him the documents described in item 2
of the respondent's application. All questions concerning the admis-
sion of testimony and evidence produced pursuant to the subpenas
shall be determined in accordance with the terms of the order direct-
ing the reopening of the record herein and the holding of the further
hearing at which Adams will be required to appear.
We shall direct that the record in this case be reopened for the
purpose 'of a further hearing, such hearing to be limited to the taking
of the testimony of Adams and documentary evidence produced
pursuant to the subpena, and evidence which may be introduced in
rebuttal to such testimony and documentary evidence, all of the fore-
going evidence to be limited, however, to such as may be relevant to
the allegation in the Board's complaint that a strike which was called
in September 1936 at the respondent's plant was caused by unfair
labor practices on the part of the respondent.
The Board is this day issuing a notice of hearing setting the date
and place of the hearing to be held pursuant to the above-described
order. We shall direct that the proceeding be referred to the
'Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania) for the purpose of holding that hearing. The Regional
Director is empowered to change the place of, and direct continua-
tions and postponements of, the hearing which we have this day
noticed.
ORDER
IT IS HEREBY ORDERED:
1. That the respondent's application for the issuance of a subpena
directed to Luther D. Adams, dated November 26, 1937, be, and it
hereby is, granted, except'as to items 1 and 3 of the said application,
as to which items said application is denied; and
2. That, pursuant to Article II, Section 37 (b) of National Labor
Relations' Board Rules and Regulations-Series 2, as amended, the
record in this case be, and it hereby is, reopened for the purpose of
holding a further hearing for the taking of the testimony of Luther
D. Adams and for the introduction of documentary evidence pro-
duced pursuant to the subpena daces tecuun directed to Luther D.
BERKSHIRE KNITTING MILLS 931
Adams this day issued , and for the taking of such testimony and
the introduction of such documentary evidence as may be offered to
rebut the above-described testimony and documentary evidence, and
for no other purpose ; provided , however, that only such of the
above-described testimony and documentary -evidence shall be
admitted as is relevant to the allegation in the Board's complaint
that a strike which was called at the respondent 's plant , in September
1936 was caused by unfair labor practices on the part of the
respondent; and
3. That this proceeding be, and it hereby is, referred. to the
Regional Director for the Fourth ' Region for the 'purpose of con-
ducting the further hearing described in paragraph 2 of this Order;
and
4. • That no Intermediate Report shall be issued by the Trial
Examiner or Trial Examiners; 'and
5. That, pursuant to Article IT, Section 37 (c) of the said Rules
and Regulations , Proposed Findings 'of Fact, Proposed Conclusions
of Law, and Proposed Order shall , be issued after termination of
the hearing described in paragraph 2 of .this Order; and
6. That, pursuant to Article IT, Section 37, of-the said Rules and
Regulations, the parties herein shall have the right, within thirty
(30) days - from the date of the said Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, to file exceptions
and a brief in support thereof, and that the said parties shall have
the right, within twenty (20) days from the date of the said Pro-
posed Findings of Fact, Proposed Conclusions of Law, and Proposed
Order, to request oral argument before the Board.