National Labor Relations Board v. Ford Motor Co.

After hearing before an Examiner, the National Labor Relations Board found that the Ford Motor Company had engaged in and was engaged in certain unfair labor practices and issued its cease and desist order. 1 This order is pending in this Court on the Board’s petition for enforcement. We shall herein designate the National Labor Relations Board as the “Board”, and the Ford Motor Company as “Ford”.

In the Ford answer there are a number of affirmative allegations to which the Board has not replied. We are presently concerned with a motion heretofore made and argued to us that we direct the Board to reply to such allegations and to supplement the record of the proceedings before the Board as filed in this Court by requiring the addition thereto of unidentified documents found in the “Informal File of the Board” and as well inter-office communications between the Board members and the attorneys.

The affirmative allegations need not be referred to separately in this opinion. They are to the effect that the Board delegated its judicial authority to subordinates in its organization and that such subordinates consulted and applied evidence outside the record of the hearing before the…

(concurring).

' I concur in the result only, because I believe the majority make two fundamental errors. The first is that notwithstanding the allegations that the Board' considered evidence not introduced as such, the majority holds that “it will not be presumed * * * that either the attprneys or the Board will make improper use of such” material. This can only mean that it will be conclusively presumed that the Board will do no wrong therein, and is contrary to Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364 , 59 S.Ct. 301 , 83 L.Ed. 221 , infra. I conceive this to be confusion of two rules. A presumption relates to. the proof and not to the pleadings, except possibly in the, case where *769 there is no allegation concerning the fact which leads to the presumption, which is not the case here. In other words, a presumption merely places on one party the duty of going forward with the evidence, and controls the result when such party' fails to comply with the duty thus imposed. Del Vecchio v. Bowers, 296 U.S. 280, 286 , 56 S.Ct. 190 , 80 L.Ed. 229 ; Department of Water and Power v. Anderson, 9 Cir., 95 F.2d 577, 583 . No question of proof is before us. The question…