J. - National Labor Relations Board

134 FOURTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARDdiscretion of the Board and is not ordinarily reviewable. N. L. R. B.v. Ronni Fortran, Inn. 104 F. (2d) 1017 (C. C. A. 2) ; JeffersonElectric Co. v. N. L. R. B., 102 F. (2d) 949, 955 (C. C. A. 7)."Absence of any actual prejudice in the presentation of its case deprivesan employer of any sound cause for complaint on the groundof a refusal of a continuance.70Exclusion of material evidence does not invalidate the proceedings.—Whena trial examiner erroneously excludes material evidence,the aggrieved party may make application to the proper CircuitCourt of Appeals for leave to adduce additional evidence. If thisavailable remedy is not utilized, the procedural defect is waived.Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197, 226."Incompetent evidence may be admitted.—Section 10 (b) of the Actprovides • that in Board proceedings "the rules of evidence prevailingin courts of law or equity shall not be controlling." The SupremeCourt has held that the admission in evidence of matters which wouldbe deemed inadmissible under the strict rules of evidence does notinvalidate the proceedings 72Intermediate report and oral argument are not indispensable.—Theabsence of an intermediate report prepared by the trial examiner orproposed findings prepared by the Board does not invalidate the proceedingwhere the issues are otherwise adequately defined, as by theBoard's complaint. Consolidated Edison Co. v. N. L. R. B., 305 U. S.197, 228." Moreover, one who has not sought it may not complain ofthe lack of oral argument before the Board. Ibid.PROCEDURE ON ENFORCEMENT AND REVIEWContempt proceedings may be brought by the Board.—It has beenheld that civil contempt proceedings for violation of an enforcingdecree may be brought by the Board, 74 but by no one else ; and specificallythat the union which filed the charge is not entitled to do so."Such proceedings are properly begun by filing a motion that theemployer be adjudged in contempt and by serving a copy of themotion upon the attorney who appeared for the employer in theenforcement proceedings. All officers and agents responsible for a69 In the Ronni case it was held that previous plans made by the respondents' officers tobe absent from the city on the date set for the hearing did not require the trial examinerto grant a continuance. In the Jefferson case, request for a continuance was made at thehearing when the Board amended its complaint to allege that the employer's contract withan independent union was invalid. Refusal of this request was held no abuse of discretion."Jefferson Electric Co. v. N. L. R. B., supra; Swift & Co. v. N. L. R. B., 106 F. (2d) 87,91 (C. C. A. 10). So also, during the previous fiscal year, N. L. R. B. v. American Potash& Chemical Corp., 98 F. (2d) 488, 492 (C. C. A 9), certiorari denied. 306 U. S. 643. In thatcase the employer was given only 8 days in which to prepare 17 discharge cases. Denialof a postponement of the hearing was upheld, however. the Court observing that, if respondenthad really been unable to put in an adequate defense by reason of insufficient timeto prepare, it could have requested additional time for preparation at the conclusion of theBoard's case and asked to have Board witnesses recalled for such additional cross-examinationas it desired to make.71 Affirming a holding to the same effect in Consolidated Edison Co. V. N. L. R. B., 95 F.(2d) 390, 397 (C. C. A. 2). Cf. Jefferson Electric Co. v. N. L. R. B., 102 F. (2d) 949, 954(C. C. A. 7) ; Wilson & Co. v. N. L. R. B. 103 F. (2d) 243, 245 (C. C. A. 8) ; Swift & Co.v. N. L. R. B., 106 F. (2d) 87, 91 (C. C. A. 10).72 Consolidated Edison Co. v. N. L. R. B., supra, at 229; N. L. R. B. v. Hearst, 102 F.(2d) 658. 663 (C. C. A. 9).73 So also, N. L. R. B. v. Hearst, 102 F. (2d) 658, 662-3 (C. C. A. 9) ; N. L. R. B. v.Biles-Coleman Lumber Co., 98 F. (2d) 16, 18 (C. C. A. 9). So also during the precedingfiscal year, N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 350.74 N. L. R. B. v. Hopwood Retintiing Co., 104 F. (2d) 302, 305 (C. C. A. 2)."Amalgamated Utility Workers v. Consolidated Edison Co., memorandum decision, 106F. (2d) 991 (C. C. A. 2), certiorari granted, 60 S. Ct. 123.