Express Publishing Co.

National Labor Relations Board - Board Decisions

Jul 8, 1938

8 N.L.R.B. 162 (N.L.R.B. 1938)

In the Matter of ExrREss PUBLISHING COMPANY and MAILERS LOCAL
UNION No. 41
Case No. C-466
Newspaper Publishing Industry-Trial Pxansiner : possible stigma of prej-
udice arising from statement of-Order: setting aside record and ordering new
hearing before another Trial Dxaminer.
Mr. Warren Woods, for the Board.
Mr. Leroy G. Denman, of San Antonio, Tex., for the Company.
Mr. L. M. Laudermilk, of San Antonio, Tex., for the Union.
Mr. D. R. Dimuick, of counsel to the Board.
ORDER
July 8, 1938
Upon charges duly filed by Mailers Local Union No. 41,
herein called the Union, the National Labor Relations Board, herein
called the Board, by Edwin A. Elliott, Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued and duly served its
complaint dated November 1, 1937, against Express Publishing Com-
pany, San Antonio, Texas, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On November
13, 1937, the respondent filed its answer to the complaint denying
that it had engaged in the unfair labor practices alleged therein,
and denying that its business affects interstate commerce, within the
meaning of the Act.
Pursuant to notice a hearing was held in San Antonio, Texas, on
November 22 and 23, 1937, before Waldo C. Holden, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent
and the Union participated in the hearing, the first two being repre-
sented by counsel and the latter by its secretary-treasurer. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
Subsequent to the hearing a brief was submitted by counsel for
the respondent.
8 N. L. R. B., No. 1.9.
162
DECISIONS AND ORDERS -163
On March 7, 1938, the Trial Examiner filed his Intermediate Re-
port in which he found that the respondent had engaged in certain
unfair labor practices. On March 19, 1938, the respondent filed ex-
ceptions to various rulings of the Trial Examiner and to the Inter-
mediate Report. Thereafter the respondent requested a hearing be-
fore the Board and permission to file briefs . Pursuant to notice, a
further hearing was held before the Board on June 9, 1938, in Wash-
ington, District of Columbia. The respondent was represented by
counsel who participated in the oral argument , and submitted a brief.
The Union did not appear.
During the early part of the hearing the Trial Examiner stated
that he had seen an editorial in the respondent's newspaper which
referred to the National Labor Relations Board. Upon being inter-
rogated as to the meaning of his remark, the Trial Examiner made
the following statement:
The statement is made by the Examiner primarily because of
this fact. The Examiner's findings dnd ruling with respect to
any hearing are bound` to be affected to some extent at least
by circumstances coming to the knowledge of the Examiner
which in some way affects a particular situation. When such
rulings and findings are reviewed that review is solely on the
basis of the record in the case. Therefore, it is the purpose of
the Examiner to include on the record, in so far as possible, such
circumstances surrounding the case as have come to his knowl-
edge, so that the findings and the review may be, in so far as
possible, on the same basis.
Seasonable objections were made by the respondent on the basis
that the proceedings, by reason of the Trial Examiner's statement,
were in violation of certain constitutional guarantees. In its excep-
tions to the Intermediate Report of the Trial Examiner the re-
spondent contends, inter alia, that the Intermediate Report should
be set aside and dismissed and a new hearing had before another
Trial Examiner.
Although it does not affirmatively appear that the Trial Examiner
was unable impartially to exercise his functions in the particular case,
we will order that a new hearing before another Trial Examiner be
held in order to remove any possible stigma of "prejudice arising
from the Trial Examiner's statement.
IT Is HEREBY ORDERED that the record in Case No. C-466, be, and it
hereby is, set aside, and that a new hearing be held before another
Trial Examiner.
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