Petition for enforcement of an order of the National Labor Relations Board.
Before SWAN, CLARK, and FRANK, Circuit Judges.
In answer to a petition by the National Labor Relations Board for enforcement of its order against respondent, the latter asserts that it was denied a fair and impartial hearing, that the board's findings of fact are not based on substantial evidence, and that changed circumstances have made enforcement of the board's order unjust and inequitable.
Respondent rests its contention as to the absence of a fair and impartial hearing on the alleged bias of the trial examiner. That would be a serious matter, if there was such bias and (equally important) if it affected, or probably affected, the Board's findings and order. Cf. Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. 292, 304, 305, 57 S. Ct. 724, 81 L. Ed. 1093; Tumey v. Ohio, 273 U.S. 510, 523, 535, 47 S. Ct. 437, 71 L. Ed. 749, 50 A.L.R. 1243. Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct. 651, 56 L. Ed. 1038. For a fair trial is a civil right of "peculiar sacredness"*fn1 guaranteed by the constitution. It is for that reason that, if the misconduct of a trial judge, in the presence of a jury, probably affected the jury in such manner as to have influenced their verdict, judgment must be re versed. United States v. Minuse, 2 Cir., 1940, 114 F.2d 36, 39; Mason v. United States, 2 Cir., 1933, 63 F.2d 791, 793.
If there were equivalent factors here, the record would be contaminated and unquestionably the Board could not lawfully act on it. But here the fact-finder was the Board, no the trial examiner. Even if bias against respondent was manifested in the examiner's intermediate report and recommendations, that bias became immaterial, since the Board ignored that report and relied solely and directly on the evidence in the record. The Board, patently, is not in the same position with respect to its examiner as is the jury with respect to the trial judge; no one would say that the judgment of trial judge, sitting without a jury, should be reversed because of inflammatory remarks addressed to him by a lawyer for one of the parties to the suit; the Board must be presumed to be capable of resisting any unfair attitudes expressed to it by its subordinates, including its attorneys or the trial examiner, cf. N.L.R.B. v. Ford Motor Company, 9 Cir., 1941, 118 F.2d 766. That the board disregarded the examiner's peport serves to answer respondent's objection concerning bias, if any, disclosed in his report.
Respondent, however, urges that the examiner was biassed and that, accordingly, the testimony taken before him, and on which the Board directly relied in making its own findings, was incurably infected. In making this point, respondent apparently admits that, as the Board found, the examiner committed no prejudicial error; yet, it is contended, the examiner's bias alone, although not resulting in such error, renders the whole proceeding an unconstitutional invasion of respondent's rights. The evidence which respondent has painfully gleaned from a long record does not make out a convincing case of the examiner's bias. Even assuming, however, that it were proved, either by the record or otherwise, that the examiner was biassed against respondent, we would find no reason, merely because of that fact, for upsetting the Board's order, since respondent does not assert that the examiner committed any error in the admission or exclusion of evidence, nor is there any indication that he conducted himself in a manner which either was likely to intimidate any of the witnesses or to prevent any of them from giving any relevant testimony as to what they believed to be the facts. An examination of the record shows no such unfairness as to constitute a denial of due process. Cf. Cupples Co. Manufacturers v. N.L.R.B., 8 Cir., 1939, 106 F.2d 100, 113. Where such unfairness is charged, "each decision must be based upon the peculiar facts of the case involved and the kind and degree of the impropriety * * * "; N.L.R.B. v. Ford Motor Co., 6 Cir., 1940, 114 F.2d 905, 909*fn2; cf. Press Co., Inc., v. N.L.R.B., App. D.C. 1940, 118 F.2d 937. there was, at most, error without prejudice; such error is harmless and no ground for reversal.*fn3 A harmless error is a blank cartridge.
Respondent argues, by analogy, that, since due process historically required that a decision of a jury selected by a biassed sheriff be disregarded, even without direct proof that the jury itself was prejudiced, the Board is required to reject testimony taken by an examiner who is biassed, even without a showing that the bias affected the record. The historical material gathered by respondent is interesting, but does not help its case: The sheriff picked those from whom the jury was selected; and, as a jury, made up of men hand-picked by a prejudiced sheriff, might well be untrustworty, it was not inappropriate to presume, even conclusively, that such a jury would be unfair and, therefore, that the sheriff's prejudice would yield harmful results. Respondent refers to a case in elizabeth's reign in which, as respondent puts it, "the mere fact that the sheriff and one of the coroners and one of the parties to the litigation wore the same livery was held sufficient to justify granting the venire to another coroner in order to prevent voiding the judgment". The use of the word "mere" is surprising. for in the word "livery" are compressed several hundred years of English judicial and "constitutional" history: Many a powerful baronial magnate would assemble a band of faithful retainers; he supplied them with coats, known as "liveries," marked with his distinctive badge; he used his liveried adherents for divers purposes, including that of tempering with and coercing juries; that evil persisted, despite royal efforts to suppress it, during the 14th, 15th and 16th centuries.*fn4 If, then, a sheriff "wore the same livery" as one of the parties to the litigation, that was the equivalent of the situation which would exist today if Al Capone were involved in a law suit and the jury commissioner were one of Capone's gang. There is nothing similar here: The prejudiced sheriff selected the persons from whom the jury would be chosen; but the trial examiner is selected by and does not select the members of the Board - and they are the fact-finders and decision-makers here.
It is conceivable that, even in a trial before a judge without a jury, the conduct of the judge might be so unfair as to give rise to sufficient inference of a prejudice in his findings to warrant a reversal of a judgment entered by him. But here the trial examiner made no decision and his tentative findings were disregarded. He was like a master, appointed by a court, merely to take and report testimony; but, absent a showing of harmful error in the admission or exclusion of evidence or of intimidation of witnesses, or the like, no court would order a retaking of the testimony heard before such a master solely because he was biassed, for, in such circumstances, his bias could have no practical hurtful consequences on the ultimate outcome of the trial
Ans so here. That an officer, even if his only function is to take and report evidence, should conduct himself in a seemly manner is highly desirable; if, deplorably, he does not do so, he renders a serious disservice to the governmental agency which he serves, and he should, at a minimum, be severely admonished by those who employed him. But his bad manners, if they have no effect on the testimony, surely do not require the delays and expense which would be involved in its retaking. Courts do not sit to conduct a school of etiquette or to censure bad manners which result in no harm; that kind of supervision must be left to other branches of the government.
Such has been the attitude of upper courts with respect to trial judges. As we said recently*fn5: "We have examined the passages of which the accused complains, and, while at times the judge was somewhat curt in his rulings, it would be unwarranted to hold that his bearing towards the accused could havd really prejudiced him with the jury. It would be idle to take up the details of a criticism which as a whole appears to us unfounded. Indeed, the disposition of courts to reverse judgments because of minor excess in the exercise of the judge's authority at the trial has much abated; separte passages cut from their context and from the trial as a whole, often have an apparent importance which in fact they do not deserve.We do not of course mean that we may ever abdicate our essential duty of insuring an impartial conduct of the trial; that is quite as important as an understanding of the rights and liabilities involved - indeed, in the end even more so - but nothing concuces less to it than an over jealous scrutiny of every word that may fall from the judge's mouth." We perceive no good reason for applying a stricter rule to so-called quasijudicial officials. We have in mind that the Supreme court the other day repeated its admonition that "the integrity of the administrative process must be respected" equally with the judicial; United States v. Morgan, May 26, 1941, 61 S. Ct. 999, 85 L. Ed. . Trial examiners and members of administrative boards - and judges - are all human, and it is unreasonable to demand that any human process be absolutely flawless. The work-a-day world is no place for the perfectionist.*fn6
Consequently, we find no merit in respondent's contention. Besides objecting to the enforcement of the board's order, respondent had filed a motion for leave to adduce additional evidence of the trial examiner's bias. The foregoing discussion is applicable to that motion, which is, therefore denied. We do not propose to turn a trial of the issues into a trial of the trial examiner.
Respondent suggests that a reading of the Board's decisions in other cases shows that the board "has created an operating presumption of non-credibility" of employers' witnesses, and has employed that presumption in the instant case. That suggestion is obviously one which we have no right to entertain. Congress has assigned to the Board, and not to the courts, the function of passing on the credibility of witnesses. N.L.R.B. v. Link-Belt co., 311 U.S. 584, 597, 61 S. Ct. 358, 85 L. Ed. 368. And the Supreme court, during a period of more than thirty years, has often condemned, as both an impractical and an unwise judicial undertaking, the "probing of the mental processes" of officials engaged in reaching decisions, pursuant to statute, on the basis of evidence presented to them. Fayerweather v. Ritch, 1904, 195 U.S. 276, 306, 307, 25 S. Ct. 58, 49 L. Ed. 193; Chicago B. & Q.R. Co. v. Babcock, 1907, 204 U.S. 585, 593, 27 S. Ct. 326, 51 L. Ed. 636; Morgan v. United States, 1938, 304 U.S. 1, 18, 58, S. Ct. 773, 999, 82 L. Ed. 1129; United States and Secretary of Agriculture v. Morgan, May 26, 1941, 61 S. Ct. 999, 85 L. Ed. ; cf. N.L.R.B. v. Ford motor company, 9 Cir., 1941, 118 F.2d 766; Decambra v. Rogers, 1903, 189 U.S. 119, 122, 23 S. Ct. 519, 47 L. Ed. 734; United States ex rel. West v. Hitchcock, 1907, 205 U.S. 80, 85, 86, 27 S. Ct. 423, 51 L. Ed. 718; United States v. Chemical Foundation, 1926, 272 U.S. 1, 15, 47 S. Ct. 1, 71 L. Ed. 131.
Respondent argues that, as the intermediate report of the examiner, to which it filed exceptions, was discarded, it was accorded no opportunity to defendtself itself in the hearing before the Board itself. But N.L.R.B. v. Mackay Radio & Tel. Co., 304 U.S. 333, 350, 58 S. Ct. 904, 82 L. Ed. 1381, sows that the test of a fair hearing is whether the issues were clearly defined, so that respondent could address itself to the charges made against it. Cf. Morgan v. United States, 304 U.S. 1, 22, 58 S. Ct. 773, 999, 82 L. Ed. 1129; Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 226-229, 59 S. Ct. 206, 83 L. Ed. 126; N.L.R.B. v. Biles Coleman Lumber Co., 9 Cir., 1938, 98 F.2d 16, 18; N.L.R.B. v. American Potash & Chemical Corp., 9 Cir., 1938, 98 F.2d 488, 492; N.L.R.B. v. Hearst, 9 Cir., 1939, 102 F.2d 658, 662. Respondent does not even argue that any issues, of which it was not warned, and upon which it was therefore unprepared to defend itself, were raised by the Board, in its fundings and decision, after the oral argument, except to assert that a "novel theory" was adopted by the Board as to the discharge of Rodolitz and Geoghegan; because of our disposition (discussed below) of the reinstatement order as to those men, we need not pass on whether, in such circumstances, the adoption of a "novel theory" in the decision of a case constitutes the denial of a fair hearing. Respondent also asserts the Board's procedure was a deviation from its prescribed rules of ...