1. The Circuit Court of Appeals has jurisdiction to entertain a
petition for rehearing, filed at the same term and in time under
its rules, of a judgment denying an application of the National
Labor Relations Board for enforcement of an order, and the three
months within which a petitioner must apply to this Court for
certiorari to review the decision in such case runs from the date
of the order entered upon the petition for rehearing. P.
304 U. S.
343.
2. Following the failure of negotiations looking to an agreement
in respect of terms and conditions of employment, employees of a
company engaged in the transmission and receipt of radio,
telegraph, and cable messages, interstate and foreign, went on a
strike. The company brought employees from its offices in other
cities to take the places of the strikers. Subsequently, all but
five of
Page 304 U. S. 334
those who had been on strike were taken back into tho employ of
the company. A proceeding was had before the National Labor
Relations Board upon a complaint against the company charging that
its nonemployment of the five was a discrimination against them on
account of union activities and that it was guilty of unfair labor
practices. After a hearing, and upon findings of fact and
conclusions of law, the Board ordered the company to cease and
desist from discharging or threatening to discharge, any of its
employees because of their membership in the union or on account of
union activities; to refrain from interfering with, restraining or
coercing its employees in respect of self-organization and
collective bargaining, and required the company to reinstate to
their former positions, with back pay, the five men who had not
been reemployed, and to post notices to the effect that members of
the union would not be discriminated against.
Held:
(1) Under the findings, the strike was a consequence of, or in
connection with, a "labor dispute" as defined in § 2(9) of the
National Labor Relations Act. It was not necessary for the Board to
find what the state of the negotiations was when the strike was
called, nor, in so many words, that a "labor dispute" existed. P.
304 U. S.
344.
(2) Their work having ceased as a consequence of, or in
connection with, a current labor dispute, § 2(3), the strikers
remained "employees" of the company for the purposes of the Act,
and were protected against the unfair labor practices denounced by
it. P.
304 U. S.
345.
(3) Discrimination in reinstating employees who had been on
strike by excluding certain of them for the sole reason that they
had been active in the union was an unfair labor practice
prohibited by § 8 of the Act. P.
304 U. S.
346.
However, it was not an unfair labor practice for the company to
replace its striking employees with others in an effort to carry on
the business; nor was the company bound later to discharge such
others in order to reinstate the strikers. P.
304 U. S.
345.
(4) The Board's finding that, in reinstating employees who had
been on strike, the company discriminated against those who had
been most active in the union was supported by evidence. P.
304 U. S.
346.
(5) The provision of the Act continuing the relationship of
employer and employee in the case of a strike as a consequence of,
or in connection with, a current labor dispute does not violate the
Fifth Amendment. P.
304 U. S.
347.
Page 304 U. S. 335
In the exercise of the commerce power, Congress may impose upon
contractual relationships reasonable regulations calculated to
protect commerce against threatened industrial strife.
(6) The affirmative relief ordered by the Board was within its
powers, and its order was not arbitrary or capricious. P.
304 U. S.
348.
(a) Complete relief in respect of the five men discriminated
against justified their being given their former positions and
reimbursement for loss resulting from the discrimination. P.
304 U. S.
348.
(b) In respect of back pay for those ordered to be reinstated,
deductions are to be allowed for all sums earned to the date of
reinstatement. P.
304 U. S.
348.
(c) The clause of the order in respect of the posting of notices
to be read in connection with other parts forbidding discharge on
account of union activity, and not as requiring notice that
reinstated employees would not be discharged for any reason
whatever. P.
304 U. S.
348.
(7) A claim that the company was denied a hearing with respect
to the offense found by the Board, because of variance between the
findings and the charges on which the complaint was based, examined
and rejected. P.
304 U. S.
349.
3. At the conclusion of the testimony, and prior to oral
argument before the trial examiner, the Board brought the
proceeding before it, heard oral argument, and received briefs,
after which it made its findings of fact and conclusions of law.
The issues and contentions of the parties were clearly defined.
Held, the submission of a tentative report by the trial
examiner and a hearing on exceptions to that report were not
essential. P.
304 U. S.
350.
4. The Fifth Amendment guarantees no particular form of
procedure; it protects substantial rights. P.
304 U. S. 351.
87 F.2d 611, 92
id. 761, reversed.
Certiorari, 303 U.S. 630, to review a judgment denying an
application of the National Labor Relations Board for the
enforcement of an order.
Page 304 U. S. 336
MR. JUSTICE ROBERTS, delivered the opinion of the Court.
The Circuit Court of Appeals refused [
Footnote 1] to decree enforcement of an order of the
National Labor Relations Board. [
Footnote 2] We granted certiorari because of an asserted
conflict of decision. [
Footnote
3]
The respondent, a California corporation, is engaged in the
transmission and receipt of telegraph, radio, cable, and other
messages between points in California and points in other states
and foreign countries. It maintains an office in San Francisco for
the transaction of its business wherein it employs upwards of sixty
supervisors, operators and clerks, many of whom are members of
Local No. 3 of the American Radio Telegraphists Association, a
national labor organization; the membership of the local comprising
"point-to-point" or land operators employed by respondent at San
Francisco. Affiliated with the national organization also were
locals whose members are exclusively marine operators who work upon
ocean-going vessels. The respondent, at its San Francisco office,
dealt with committees of Local No. 3, and its parent company, whose
headquarters were in New York, dealt with representatives of the
national organization. Demand was made by the latter for the
execution of agreements respecting terms and conditions of
employment
Page 304 U. S. 337
of marine and point-to-point operators. On several occasions
when representatives of the union conferred with officers of the
respondent and its parent company, the latter requested
postponement of discussion of the proposed agreements, and the
union acceded to the requests. In September, 1935, the union
pressed for immediate execution of agreements, and took the
position that no contract would be concluded by the one class of
operators unless an agreement were simultaneously made with the
other. Local No. 3 sent a representative to New York to be in touch
with the negotiations, and he kept its officers advised as to what
there occurred. The local adopted a resolution to the effect that,
if satisfactory terms were not obtained by September 23, a strike
of the San Francisco point-to-point operators should be called. The
national officers determined on a general strike in view of the
unsatisfactory state of the negotiations. This fact was
communicated to Local No. 3 by its representative in New York, and
the local officers called out the employees of the San Francisco
office. At midnight Friday, October 4, 1935, all the men there
employed went on strike. The respondent, in order to maintain
service, brought employees from its Los Angeles office and others
from the New York and Chicago offices of the parent company to fill
the strikers' places.
Although none of the San Francisco strikers returned to work
Saturday, Sunday, or Monday, the strike proved unsuccessful in
other parts of the country, and, by Monday evening, October 7th, a
number of the men became convinced that it would fail and that they
had better return to work before their places were filled with new
employees. One of them telephoned the respondent's traffic
supervisor Monday evening to inquire whether the men might return.
He was told that the respondent would take them back, and it was
arranged that the official should meet the employees at a downtown
hotel and make a statement to
Page 304 U. S. 338
them. Before leaving the company's office for this purpose, the
supervisor consulted with his superior, who told him that the men
might return to work in their former positions but that, as the
company had promised eleven men brought to San Francisco they might
remain if they so desired, the supervisor would have to handle the
return of the striking employees in such fashion as not to displace
any of the new men who desired to continue in San Francisco. A
little later. the supervisor met two of the striking employees and
gave them a list of all the strikers, together with their addresses
and the telephone numbers of those who had telephones, and it was
arranged that these two employees should telephone the strikers to
come to a meeting at the Hotel Bellevue in the early hours of
Tuesday, October 8th. In furnishing this list, the supervisor
stated that the men could return to work in a body, but he checked
off the names of eleven strikers who he said would have to file
applications for reinstatement, which applications would be subject
to the approval of an executive of the company in New York. Because
of this statement, the two employees, in notifying the strikers of
the proposed meeting, with the knowledge of the supervisor, omitted
to communicate with the eleven men whose names had been checked
off. Thirty-six men attended the meeting. Some of the eleven in
question heard of it and attended. The supervisor appeared at the
meeting and reiterated his statement that the men could go back to
work at once, but read from a list the names of the eleven who
would be required to file applications for reinstatement to be
passed upon in New York. Those present at the meeting voted on the
question of immediately returning to work, and the proposition was
carried. Most of the men left the meeting and went to the
respondent's office Tuesday morning, October 8th, where, on that
day, they resumed their usual duties. Then or shortly thereafter,
six of the eleven in question took their places and resumed
Page 304 U. S. 339
their work without challenge. It turned out that only five of
the new men brought to San Francisco desired to stay.
Five strikers who were prominent in the activities of the union
and in connection with the strike, whose names appeared upon the
list of eleven, reported at the office at various times between
Tuesday and Thursday. Each of them was told that he would have to
fill out an application for employment, that the roll of employees
was complete, and that his application would be considered in
connection with any vacancy that might thereafter occur. These men
not having been reinstated in the course of three weeks, the
secretary of Local No. 3 presented a charge to the National Labor
Relations Board that the respondent had violated section 8(1) and
(3) of the National Labor Relations Act. [
Footnote 4] Thereupon, the Board filed a complaint
charging that the respondent had discharged and was refusing to
employ the five men who had not been reinstated to their positions
for the reason that they had joined and assisted the labor
organization known as Local No. 3 and had engaged in concerted
activities with other employees of the respondent for the purpose
of collective bargaining and other mutual aid and protection; that,
by such discharge, respondent had interfered with, restrained, and
coerced the employees in the exercise of their rights guaranteed by
§ 7 [
Footnote 5] of the
National Labor Relations Act, and so had been guilty of an unfair
labor practice within the meaning of § 8(1) of the act. The
complaint further alleged that the discharge of these men was a
discrimination in respect of their hire and tenure of employment
and a discouragement of membership in Local No. 3, and thus an
unfair labor practice within the meaning of § 8(3) of the act.
Page 304 U. S. 340
The respondent filed an answer denying the allegations of the
complaint, and moved to dismiss the proceeding on the ground that
the act is unconstitutional. The motion was taken under advisement
by the Board's examiner, and the case proceeded to hearing. After
the completion of its testimony, the Board filed an amended
complaint to comport with the evidence, in which it charged that
the respondent had refused to reemploy the five operators for the
reason that they had joined and assisted the labor organization
known as Local No. 3 and engaged with other employees in concerted
activities for the purpose of collective bargaining and other
mutual aid and protection; that the refusal to reemploy them
restrained and coerced the employees in the exercise of rights
guaranteed by § 7, and so constituted an unfair labor practice
within § 8(1) of the act. The amended complaint further asserted
that the refusal to reemploy the men discriminated in regard to
their hire and tenure of employment and discouraged membership in
Local No. 3, and thus amounted to an unfair labor practice under §
8(3) of the act. The respondent entered a general denial to the
amended complaint and presented its evidence. At the conclusion of
the testimony, the Board transferred the cause for further hearing
before the members of the Board at Washington and, after oral
argument and the filing of a brief, made its findings of fact.
The subsidiary or evidentiary facts were found in great detail
and, upon the footing of them, the Board reached conclusions of
fact to the effect that Local No. 3 is a labor organization within
the meaning of the act; that, "by refusing to reinstate to
employment" the five men in question, "thereby discharging said
employees," the respondent by "each of said discharges,"
discriminated in regard to tenure of employment, and thereby
discouraged membership in the labor organization known as Local No.
3, and, by the described acts,
"has interfered with, restrained,
Page 304 U. S. 341
and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the National Labor Relations Act."
As conclusions of law, the Board found that the respondent had
engaged in unfair labor practices affecting commerce within the
meaning of § 8, subsections (1) and (3), and § 2, subsections (6)
and (7), [
Footnote 6] of the
act. It entered an order that respondent cease and desist from
discharging, or threatening to discharge, any of its employees for
the reason that they had joined or assisted Local No. 3 or
otherwise engaged in union activities; from interfering with,
restraining or coercing its employees in the exercise of the rights
guaranteed by § 7 of the act; offer the five men immediate and full
reinstatement to their former positions, without prejudice to
rights and privileges previously enjoyed, and make each of them
whole for any loss of wages due to their discharge; post notices
that the respondent would not discharge or discriminate against
members of, or those desiring to become members of, the union, and
keep the notices posted for thirty days.
As permitted by the act, the Board filed in the Circuit Court of
Appeals a transcript of the record of its proceeding, and a
petition for enforcement of its order. In its answer, the
respondent denied the jurisdiction of the court on the ground that
the act violated article 3, and the Fifth, Seventh, and Tenth
Amendments of the Constitution; that the order amounted to an abuse
of discretion because arbitrary and capricious, and was not
supported by the evidence; that the trial examiner erred in his
rulings on evidence; that the Board erred in overruling exceptions
to his rulings, and that the Board's findings of fact and
conclusions of law were erroneous.
Upon the hearing before the Circuit Court of Appeals, one judge
held that the action of the Board was within
Page 304 U. S. 342
the power sought to be conferred upon it by the statute, but
that the grant of power violated the due process clause of the
Fifth Amendment and the award of back pay to the employees, without
a jury trial, violated the Seventh Amendment. Another judge held
that as the statute defined employees to include a person whose
work had ceased "as a consequence of, or in connection with, any
current labor dispute," § 2(3), and, since there was no allegation,
evidence, or finding as to such a dispute, the strikers had ceased
to be employees within the meaning of the act and the respondent's
treatment of them could not violate the act. One judge dissented,
holding that the Board's order was within its statutory authority,
and did not violate the Constitution. A petition and supplemental
petition for rehearing were granted, and, after argument, the court
reaffirmed its former decision. The judge who had previously
declared the Board's action within the terms of the statute, but
unconstitutional, construed the act as not intended to work the
unconstitutional result of compelling an employer to enter into a
contract of employment against his will, and hence as requiring
only that the strikers be reinstated to the position of applicants
for employment, rather than employees. The other judges adhered to
the views they had previously expressed.
The petitioner contends the court erred in holding that men who
struck because of a failure of negotiations concerning wages and
terms of employment ceased to be employees within the meaning of
the statute; erred in not holding it an unfair labor practice,
forbidden by the statute, for an employer to discriminate because
of union activities in the reinstatement of men who have gone on
strike because of a failure of negotiations concerning wages and
terms of employment; erred in failing to hold that the act
authorizes the Board to order reinstatement of persons thus
discriminated against, and one of the
Page 304 U. S. 343
judges erred in holding that the act, if construed to authorize
the Board to require such reinstatement, violates the Fifth
Amendment.
On the other hand, the respondent insists that it was not
accorded due process of law because the unfair labor practice
charged in the original complaint was abandoned and the action of
the Board was based upon a conclusion of fact not within the issues
presented; that there is no basis for the Board's order because
there is no finding that the strikers ceased work as a consequence
of, or in connection with, any labor dispute, as defined in the
statute; that the act does not empower the Board to compel an
employer to reemploy or reinstate those who have abandoned
negotiations and gone on strike prior to any unfair labor practice,
where the employer, after the strike is effective, and before
committing any unfair labor practice, has permanently employed
others in place of the strikers; that, if the act be held to
authorize the Board's order, it violates the Fifth Amendment; that
article 3 of the Constitution requires that the court render its
independent judgment upon the
quasi-jurisdictional facts
upon which the Board's order was based; that the Board's order was,
in the light of the facts, so arbitrary and capricious as to
warrant the court's refusal to enforce it, and that the case is not
properly before us because certiorari was not sought within the
time fixed by law.
We hold that we have jurisdiction; that the Board's order is
within its competence and does not contravene any provision of the
Constitution.
First. Within the thirty days prescribed by the rules
of the Circuit Court of Appeals, the petitioner moved for a
rehearing and for leave, if deemed appropriate, to take further
evidence and add the same to the record before the Board. While
this application was pending, a supplemental petition for rehearing
was presented. During the term, the court entertained both
petitions and granted a rehearing
Page 304 U. S. 344
and, after oral argument and submission of briefs, wrote further
opinions based upon the petitions for rehearing. We think the court
had not lost jurisdiction of the cause; that its final judgment was
the order entered upon the petitions for rehearing, and that the
three months within which the petitioner must apply for certiorari
ran from the date of the order dismissing the petition for
rehearing and confirming the original order.
Second. Under the findings, the strike was a
consequence of, or in connection with, a current labor dispute as
defined in § 2(9) of the act. That there were pending negotiations
for the execution of a contract touching wages and terms and
conditions of employment of point-to-point operators cannot be
denied. But it is said the record fails to disclose what caused
these negotiations to fail, or to show that the respondent was in
any wise in fault in failing to comply with the union's demands,
and therefore, for all that appears, the strike was not called by
reason of fault of the respondent. The argument confuses a current
labor dispute with an unfair labor practice defined in § 8 of the
act. True, there is no evidence that respondent had been guilty of
any unfair labor practice prior to the strike, but, within the
intent of the act, there was an existing labor dispute in
connection with which the strike was called. The finding is that
the strike was deemed "advisable in view of the unsatisfactory
state of the negotiations" in New York. It was unnecessary for the
Board to find what was in fact the state of the negotiations in New
York when the strike was called, or in so many words that a labor
dispute as defined by the act existed. The wisdom or unwisdom of
the men, their justification or lack of it, in attributing to
respondent an unreasonable or arbitrary attitude in connection with
the negotiations cannot determine whether, when they struck, they
did so as a consequence of, or in connection with, a current labor
dispute.
Page 304 U. S. 345
Third. The strikers remained employees under § 2(3) of
the act, which provides:
"The term 'employee' shall include . . . any individual whose
work has ceased as a consequence of, or in connection with, any
current labor dispute or because of any unfair labor practice, and
who has not obtained any other regular and substantially equivalent
employment. . . ."
Within this definition, the strikers remained employees for the
purpose of the act, and were protected against the unfair labor
practices denounced by it.
Fourth. It is contended that the Board lacked
jurisdiction because respondent was at no time guilty of any unfair
labor practice. Section 8 of the act denominates as such practice
action by an employer to interfere with, restrain, or coerce
employees in the exercise of their rights to organize, to form,
join, or assist labor organizations, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or,
"by discrimination in regard to . . . tenure of employment or
any term or condition of employment, to encourage or discourage
membership in any labor organization. . . ."
There is no evidence and no finding that the respondent was
guilty of any unfair labor practice in connection with the
negotiations in New York. On the contrary, it affirmatively appears
that the respondent was negotiating with the authorized
representatives of the union. Nor was it an unfair labor practice
to replace the striking employees with others in an effort to carry
on the business. Although § 13 of the act provides "[n]othing in
this Act shall be construed so as to interfere with or impede or
diminish in any way the right to strike," it does not follow that
an employer, guilty of no act denounced by the statute, has lost
the right to protect and continue his business by supplying places
left vacant by strikers. And he is not bound to discharge those
hired to fill the places of strikers, upon the election of the
latter to resume their employment,
Page 304 U. S. 346
in order to create places for them. [
Footnote 7] The assurance by respondent to those who
accepted employment during the strike that, if they so desired,
their places might be permanent was not an unfair labor practice,
nor was it such to reinstate only so many of the strikers as there
were vacant places to be filled. But the claim put forward is that
the unfair labor practice indulged by the respondent was
discrimination in reinstating striking employees by keeping out
certain of them for the sole reason that they had been active in
the union. As we have said, the strikers retained, under the act,
the status of employees. Any such discrimination in putting them
back to work is therefore prohibiting by § 8.
Fifth. The Board's findings as to discrimination are
supported by evidence. We shall not attempt a discussion of the
conflicting claims as to the proper conclusions to be drawn from
the testimony. There was evidence, which the Board credited, that
several of the five men in question were told that their union
activities made them undesirable to their employer, and that some
of them did not return to work with the great body of the men at 6
o'clock on Tuesday morning because they understood they would not
be allowed to go to work until the superior officials had passed
upon their applications. When they did apply at times between
Tuesday morning and Thursday, they were each told that the quota
was full and that their applications could not be granted, in any
event, until a vacancy occurred. This was on the ground that five
of the eleven new men remained at work in San Francisco. On the
other hand, six of the eleven strikers listed for separate
treatment who reported for work early Tuesday morning, or within
the next day or so, were permitted to go back to work and were not
compelled to await the approval of their applications. It appears
that all of the
Page 304 U. S. 347
men who had been on strike signed applications for reemployment
shortly after their resumption of work. The Board found, and we
cannot say that its finding is unsupported, that, in taking back
six of the eleven men and excluding five who were active union men,
the respondent's officials discriminated against the latter on
account of their union activities, and that the excuse given that
they did not apply until after the quota was full was an
afterthought, and not the true reason for the discrimination
against them.
As we have said, the respondent was not bound to displace men
hired to take the strikers' places in order to provide positions
for them. It might have refused reinstatement on the grounds of
skill or ability, but the Board found that it did not do so. It
might have resorted to any one of a number of methods of
determining which of its striking employees would have to wait
because five men had taken permanent positions during the strike,
but it is found that the preparation and use of the list, and the
action taken by respondent, was with the purpose to discriminate
against those most active in the union. There is evidence to
support these findings.
Sixth. The Board's order does not violate the Fifth
Amendment. The respondent insists that the relation of employer and
employee ceased at the inception of the strike. The plain meaning
of the act is that, if men strike in connection with a current
labor dispute, their action is not to be construed as a
renunciation of the employment relation, and they remain employees
for the remedial purposes specified in the act. We have held that,
in the exercise of the commerce power, Congress may impose upon
contractual relationships reasonable regulations calculated to
protect commerce against threatened industrial strife.
Labor
Board v. Jones & Laughlin Steel Corp., 301 U. S.
1,
301 U. S. 48. The
Board's order there sustained required the reinstatement of
discharged employees. The
Page 304 U. S. 348
requirement interfered with freedom of contract which the
employer would have enjoyed except for the mandate of the statute.
The provision of the act continuing the relationship of employer
and employee in the case of a strike as a consequence of, or in
connection with, a current labor dispute is a regulation of the
same sort and within the principle of our decision.
Seventh. The affirmative relief ordered by the Board
was within its powers and its order was not arbitrary or
capricious.
As we have held in
Labor Board v. Pennsylvania Greyhound
Lines, Inc., 303 U. S. 261, the
relief which the statute empowers the Board to grant is to be
adapted to the situation which calls for redress. On the basis of
the findings, five men who took part in the strike were
discriminated against in connection with a blanket offer to
reinstate striking employees. The Board enjoined further
discrimination against employees by reason of union affiliation,
but it could not grant complete relief in respect of the five men
short of ordering that the discrimination be neutralized by their
being given their former positions and reimbursed for the loss due
to their lack of employment consequent upon the respondent's
discrimination. The order is criticized as arbitrary in that it is
said to award back pay to date of reinstatement, with deductions
only for what was earned to the date of the order. We do not so
read it, and the Board admits that credit must be given for all
sums earned to date of reinstatement, and so construes the order.
It is further said that the order arbitrarily and unreasonably
requires the notices to be posted to state that respondent will not
discharge its reinstated employees for any reason whatever. This
clause of the order is inartfully drawn, and counsel for the Board
admit that it should be read in connection with the remainder of
the order forbidding discharge on the ground of union activity.
Page 304 U. S. 349
Eighth. The respondent was not denied a hearing with
respect to the offense found by the Board. The respondent says that
it was summoned to answer a complaint that it discriminated by
discharging the five men and that, after all the evidence was in,
this complaint was withdrawn and a new one presented asserting that
its refusal to reemploy the five men was the head and front of its
offending. Then it is said that, when the Board came to make its
findings, it reverted to the position that what the respondent did
had not been a failure to employ, but a wrongful discharge. Thus,
the respondent claims that it is found guilty of an unfair labor
practice which was not within the issues upon which the case was
tried. The position is highly technical. All parties to the
proceeding knew from the outset that the thing complained of was
discrimination against certain men by reason of their alleged union
activities. If there was a current labor dispute, the men were
still employees by virtue of section 2(3), and the refusal to let
them work was a discharge. The respondent says that, as the Board
failed to find in so many words that there was a current labor
dispute, its conclusion of fact that the men were discharged has no
basis. But the Board found that the strike was called because the
strikers were informed that the negotiations for a working
agreement in New York were not proceeding satisfactorily. We think
its action cannot be overturned for the mere reason that it failed
to characterize the situation as a current labor dispute. The
respondent further urges that, when the amended complaint was filed
and the original one withdrawn, the charge it had to meet was a
refusal to reemploy; that the phrase "reemploy" means "employ
anew;" that, if the Board had found a failure to employ the five
men because of discrimination forbidden by the act, the findings
would have followed the complaint, whereas the Board, in its
conclusions of fact, referred to respondent's action as "refusal to
reinstate to
Page 304 U. S. 350
employment" and as a discharge, and the argument is that the
findings do not follow the pleadings.
A review of the record shows that at no time during the hearings
was there any misunderstanding as to what was the basis of the
Board's complaint. The entire evidence, pro and con, was directed
to the question whether, when the strike failed and the men desired
to come back and were told that the strike would be forgotten and
that they might come back in a body save for eleven men who were
singled out for different treatment, six of whom, however, were
treated like everyone else, the respondent did in fact discriminate
against the remaining five because of union activity. While the
respondent was entitled to know the basis of the complaint against
it, and to explain its conduct in an effort to meet that complaint,
we find from the record that it understood the issue and was
afforded full opportunity to justify the action of its officers as
innocent, rather than discriminatory.
At the conclusion of the testimony, and prior to oral argument
before the examiner, the Board transferred the proceeding to
Washington to be further heard before the Board. It denied
respondent's motion to resubmit the cause to the trial examiner
with directions to prepare and file an intermediate report. In the
Circuit Court of Appeals, the respondent assigned error to this
ruling. It appears that oral argument was had and a brief was filed
with the Board, after which it made its findings of fact and
conclusions of law. The respondent now asserts that the failure of
the Board to follow its usual practice of the submission of a
tentative report by the trial examiner and a hearing on exceptions
to that report deprived the respondent of opportunity to call to
the Board's attention the alleged fatal variance between the
allegations of the complaint and the Board's findings. What we have
said sufficiently indicates that the issues and contentions of
Page 304 U. S. 351
the parties were clearly defined, and, as no other detriment or
disadvantage is claimed to have ensued from the Board's procedure,
the matter is not one calling for a reversal of the order. The
Fifth Amendment guarantees no particular form of procedure; it
protects substantial rights.
Compare Morgan v. United
States, 298 U. S. 468,
298 U. S. 478.
The contention that the respondent was denied a full and adequate
hearing must be rejected.
Ninth. The other contentions of the respondent are
overruled because foreclosed by earlier decisions of this
Court.
The judgment of the Circuit Court of Appeals is reversed, and
the cause is remanded to that court for further proceedings in
conformity with this opinion.
Reversed.
MR. JUSTICE CARDOZO and MR. JUSTICE REED took no part in the
consideration or decision of this case.
[
Footnote 1]
87 F.2d 611; 92 F.2d 761.
[
Footnote 2]
1 N.L.R.B. 201.
[
Footnote 3]
See Jeffery-DeWitt Insulator Co. v. Labor Board, 91
F.2d 134, 112 A.L.R. 948;
Labor Board v. Bell Oil & Gas
Co., 91 F.2d 509;
Labor Board v. Carlisle Lumber Co.,
94 F.2d 138;
Black Diamond S.S. Corp. v. Labor Board, 94
F.2d 875.
[
Footnote 4]
U.S.C.Supp. II, Tit. 29, § 158(1) and (3).
[
Footnote 5]
U.S.C.Supp. II, Tit. 29, § 157.
[
Footnote 6]
U.S.C.Supp. II, Tit. 29, § 152(6)(7).
[
Footnote 7]
Compare Labor Board v. Bell Oil & Gas Co., 91 F.2d
509.