National Labor Relations Board v. Oregon Worsted Co. , 94 F.2d 671 ( 1938 )

DENMAN, Circuit Judge.

Respondent employer moves the court for an order requiring the petitioner to certify to the court a so-called report of respondent showing compliance with the recommendations of the trial examiner’s report.

The motion is based on the theory that since such report states that respondent has complied with the recommendations of the trial examiner, the case is ended and the Board has lost its jurisdiction to make any orders we are called upon to enforce, whether in addition to or modification of the recommendations.

We do not so hold to be the character of the recommendations of the trial examiner. The remedy of the statute, National Labor Relations Act, 29 U.S.C.A. § 151 et seq., is in the orders of the Board to cease and desist and take the designated affirmative action. The recommendations of the trial examiner are no more than recommendations to the Board as to its action.

The Board may accept or reject any and add to the accepted recommendations such other orders as seem warranted by the evidence and its findings. In this case, the facts proved before the e-xaminer are claimed by the Board to support an order made by it for reinstatements and payment of back wages, on which no recommendations at all were made by the examiner. Hinc illse lachrimae.

While performance of all the recommendations by the examiner covering every phase of the complaint may lead the Board, in its administrative discretion, to dismiss the petition, such performance gives no right to the respondent to insist on such dismissal. The objective of the act is the Board’s orders and the examiner is not the Board for such objective. The regulation (Art. I, § 5) defining the trial examiner as the Board, its member, agent, or agency conducting the hearing, does not make the examiner the Board in other Board functions.

Furthermore, a mere report by respondent that there has been performance of the examiner’s recommendations does not establish it as a fact. It is a mere ex parte statement upon which the Board may take further evidence as to its verity— but here again to determine the administrative question whether it will continue the proceeding for all or part of the remedial action sought. Since the recommendations of the examiner for Board orders may be rejected or added to by the Board, performance by the respondent of the recommended acts offers no reason for the respondent not excepting to the examiner’s findings or the procedure before him.

Motion denied.