Ford Motor Co. v. Labor Board, 305 U.S. 364 (1939)

Topics:  Ford Motor Company

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Case:   FORD MOTOR CO. V. LABOR BOARD

Case #: 305US364


NOS. 182 AND 183.  ARGUED DECEMBER 14, 1938.  - DECIDED JANUARY 3,
1939.  - 99 F.2D 1003, 1009, AFFIRMED. 


1.  THE AUTHORITY TO MODIFY OR SET ASIDE ITS FINDINGS AND ORDER,
CONFERRED ON THE NATIONAL LABOR RELATIONS BOARD BY SEC. 10(D) OF THE
NATIONAL LABOR RELATIONS ACT, ENDS WITH THE FILING OF THE TRANSCRIPT OF
ITS RECORD IN THE CIRCUIT COURT OF APPEALS.  P. 368. 

2.  UPON THE FILING OF SUCH TRANSCRIPT IN CONNECTION WITH THE BOARD'S
PETITION FOR ENFORCEMENT OF ITS ORDER, AND NOTICE, THE CIRCUIT COURT OF
APPEALS ACQUIRES JURISDICTION UNDER SEC. 10(E).  ID. 

3.  UNDER SEC. 10(F) OF THE ACT THE JURISDICTION OF THE CIRCUIT COURT
OF APPEALS IS OF THE SAME CHARACTER AND SCOPE IN A PROCEEDING FOR
REVIEW BROUGHT BY A PERSON AGGRIEVED BY AN ORDER OF THE BOARD AS THE
JURISDICTION WHICH THE COURT HAS IN A PROCEEDING INSTITUTED BY THE
BOARD FOR ENFORCEMENT.  P. 369. 

4.  WHERE THE BOARD HAS PETITIONED FOR ENFORCEMENT UNDER SEC. 10(E)
AND THE JURISDICTION OF THE COURT HAS ATTACHED, THE RESPONDENT IS
ENTITLED TO RAISE ALL PERTINENT QUESTIONS AND TO OBTAIN ANY AFFIRMATIVE
RELIEF THAT IS APPROPRIATE WITHOUT SEEKING INDEPENDENT REVIEW UNDER
SEC. 10(F); AND PERMISSION TO THE BOARD TO WITHDRAW ITS PETITION RESTS
IN THE SOUND DISCRETION OF THE COURT, TO BE EXERCISED IN THE LIGHT OF
THE CIRCUMSTANCES OF THE PARTICULAR CASE.  ID. 

5.  WHERE THE BOARD SOUGHT ENFORCEMENT OF ITS ORDER UNDER SEC. 10(E),
AND THE PARTY PROCEEDED AGAINST PETITIONED FOR REVIEW UNDER SEC. 10(F),
SEEKING AFFIRMATIVE RELIEF AND SETTING UP SUBSTANTIALLY THE SAME
GROUNDS IN ITS ANSWER TO THE BOARD'S PETITION AND IN ITS OWN PETITION,
HELD: 

(1)  THAT THE COURT HAD JURISDICTION TO RETAIN THE TRANSCRIPT FILED
BY THE BOARD, WHILE PERMITTING WITHDRAWAL OF THE BOARD'S PETITION, AND
TO ORDER THAT THE TRANSCRIPT BE FILED IN THE PROCEEDING FOR REVIEW.  IN
RE NATIONAL LABOR RELATIONS BOARD, 304 U.S. 486, DISTINGUISHED.  P.
370. 

(2)  ON THE PETITION FOR REVIEW, THE BOARD COULD SEEK, NOT MERELY A
DENIAL OF THAT PETITION, BUT ALSO ENFORCEMENT OF ITS ORDER.  P. 371. 

(3)  THE COURT ACQUIRED EXCLUSIVE JURISDICTION TO DEAL WITH THE
ORDER.  P. 372. 

6.  UPON A PETITION TO REVIEW AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD, WHERE IT WAS CONTENDED THAT THE ORDER WAS INVALID FOR
WANT OF A FULL AND FAIR HEARING AND BECAUSE THE BOARD HAD NOT ITSELF
CONSIDERED THE EVIDENCE BUT HAD ADOPTED AS ITS OWN A DECISION PREPARED
BY SUBORDINATES, WITHOUT AFFORDING THE PETITIONER ANY OPPORTUNITY TO BE
HEARD THEREON,  - THE CIRCUIT COURT OF APPEALS PROPERLY GRANTED THE
BOARD'S MOTION TO REMAND THE CAUSE TO THE BOARD FOR THE PURPOSE OF
SETTING ASIDE ITS FINDINGS AND ORDER, ISSUING PROPOSED FINDINGS, WITH
PERMISSION TO THE PARTIES TO FILE EXCEPTIONS AND PRESENT ARGUMENT, AND
THEREAFTER MAKING ITS DECISION AND ORDER UPON A RECONSIDERATION OF THE
ENTIRE CASE.  P. 372. 

THIS PURPOSE, EXPRESSED IN THE BOARD'S MOTION AND SPECIFIED IN THE
ORDER OF REMAND, QUALIFIES THAT ORDER AND BINDS THE BOARD.  IT WAS NOT
NECESSARY FOR THE COURT TO CONSIDER OTHER OBJECTIONS TO THE BOARD'S
CONDUCT OF THE PROCEEDING, AS THE SETTING ASIDE OF THE FINDINGS AND
ORDER WOULD CARRY WITH IT THE OPPORTUNITY FOR RECONSIDERATION AND THE
MAKING OF A NEW RECORD.  PP. 372-375. 

FORD MOTOR CO. V. NATIONAL LABOR RELATIONS BOARD. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. 

CERTIORARI, POST, P. 585, TO REVIEW ORDERS OF THE COURT BELOW, ONE
GRANTING A MOTION OF THE ABOVE-NAMED BOARD TO WITHDRAW A PETITION FOR
ENFORCEMENT UNDER THE NATIONAL LABOR RELATIONS ACT, THE OTHER REMANDING
THE CAUSE TO THE BOARD ON THE BOARD'S MOTION. 

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT. 

THIS CASE PRESENTS THE QUESTION OF THE PROPRIETY OF THE ACTION OF THE
CIRCUIT COURT OF APPEALS IN REMANDING A CAUSE TO THE NATIONAL LABOR
RELATIONS BOARD FOR THE PURPOSE OF SETTING ASIDE ITS FINDINGS AND
ORDER, AND ISSUING PROPOSED FINDINGS, AND MAKING ITS DECISION AND ORDER
UPON RECONSIDERATION. 

THE NATIONAL LABOR RELATIONS BOARD, ON DECEMBER 22, 1937, ENTERED AN
ORDER AGAINST PETITIONER DIRECTING IT TO DESIST FROM DESCRIBED
PRACTICES AND TO OFFER REINSTATEMENT, WITH BACK PAY, TO CERTAIN
DISCHARGED EMPLOYEES. 

ON JANUARY 7, 1938, THE BOARD FILED ITS PETITION IN NO. 182(CALLED
THE BOARD'S PROCEEDING) IN THE CIRCUIT COURT OF APPEALS, SEEKING THE
ENFORCEMENT OF ITS ORDER, AND AT THE SAME TIME FILED THE TRANSCRIPT OF
THE RECORD. 

ON APRIL 4, 1938, PETITIONER ASKED LEAVE TO ADDUCE ADDITIONAL
EVIDENCE.  ON APRIL 11, 1938, PETITIONER FILED ITS ANSWER TO THE
BOARD'S PETITION, ALLEGING THAT THE ORDER WAS INVALID AND ASKING THAT
IT BE SET ASIDE UPON THE GROUNDS, AMONG OTHERS, THAT THE BOARD HAD
FAILED TO ACCORD PETITIONER A FULL AND FAIR HEARING, AND THAT THE BOARD
HAD NOT ITSELF CONSIDERED THE EVIDENCE BUT HAD ADOPTED AS ITS OWN A
DECISION PREPARED BY ITS SUBORDINATES WITHOUT AFFORDING PETITIONER ANY
OPPORTUNITY TO BE HEARD THEREON.  IT WAS ALSO ALLEGED THAT THE FINDINGS
WERE NOT SUPPORTED BY THE EVIDENCE.  PETITIONER MOVED FOR A COMMISSION
TO TAKE THE DEPOSITIONS OF WITNESSES, AND SERVED INTERROGATORIES UPON
THE BOARD. 

ON MAY 2, 1938, AFTER OUR DECISION IN MORGAN V. UNITED STATES (APRIL
25, 1938), 304 U.S. 1, THE BOARD FILED A MOTION FOR LEAVE TO WITHDRAW
ITS PETITION FOR ENFORCEMENT AND THE TRANSCRIPT OF RECORD, WITHOUT
PREJUDICE.  THE BOARD STATED THAT, SHOULD ITS MOTION BE GRANTED, IT
WOULD SET ASIDE ITS ORDER, WOULD ISSUE PROPOSED FINDINGS, WITH
PERMISSION TO THE PARTIES TO FILE EXCEPTIONS AND PRESENT ARGUMENT, AND
THEREAFTER MAKE ITS DECISION AND ORDER.  ON MAY 5, 1938, THE COURT
GRANTED THE BOARD'S MOTION.  ON MAY 6, 1938, THE BOARD SERVED NOTICE ON
PETITIONER OF ITS INTENTION TO VACATE ITS FINDINGS AND ORDER OF
DECEMBER 22, 1937, BUT LATER IN VIEW OF PETITIONER'S OBJECTION HELD
THAT ACTION UNDER ADVISEMENT.  ON MAY 9, 1938, THE ORDER OF MAY 5TH WAS
AMENDED SO FAR AS IT PERMITTED THE WITHDRAWAL OF THE TRANSCRIPT OF
RECORD AND THE COURT DIRECTED THAT THE TRANSCRIPT REMAIN ON FILE.  ON
JUNE 2, 1938, THE BOARD PURPORTED TO WITHDRAW ITS PETITION FOR
ENFORCEMENT.  ON JUNE 4, 1938, THE PETITIONER MOVED TO VACATE THE ORDER
OF MAY 5TH.  THAT MOTION WAS DENIED ON JUNE 10, 1938, WITH A STAY OF
THE WITHDRAWAL OF THE BOARD'S PETITION PENDING APPLICATION HERE FOR
WRIT OF CERTIORARI. 

MEANWHILE, ON MAY 4, 1938, THE PETITIONER FILED WITH THE CIRCUIT
COURT OF APPEALS IN NO. 183(CALLED THE PETITIONER'S PROCEEDING) ITS
PETITION ASKING THE COURT TO REVIEW AND SET ASIDE THE BOARD'S ORDER OF
DECEMBER 22, 1937.  ON MAY 9, 1938, THE COURT DIRECTED THAT THE
TRANSCRIPT OF RECORD FILED IN THE BOARD'S PROCEEDING SHOULD BE DEEMED
TO HAVE BEEN FILED IN THE PETITIONER'S PROCEEDING TO REVIEW AS OF THE
DATE OF MAY 4TH.  ON JUNE 2, 1938, THE BOARD FILED A MOTION TO VACATE
THAT ORDER OF MAY 9TH.  AT THE SAME TIME THE BOARD MOVED THAT IN THE
EVENT OF A DENIAL OF THAT MOTION THE CASE SHOULD BE REMANDED TO THE
BOARD FOR FURTHER PROCEEDINGS. 

ON JUNE 10, 1938, THE COURT ENTERED ITS ORDER DENYING CERTAIN MOTIONS
OF THE PETITIONER FOR LEAVE TO AMEND ITS PETITION FOR REVIEW, DENYING
THE BOARD'S MOTION TO VACATE THE ORDER OF MAY 9TH, AND GRANTING THE
BOARD'S MOTION OF JUNE 2D - "TO REMAND THIS CAUSE TO THE NATIONAL LABOR
RELATIONS BOARD FOR THE PURPOSE OF SETTING ASIDE ITS FINDINGS AND ORDER
OF DECEMBER 22, 1937, AND ISSUING PROPOSED FINDINGS, AND MAKING ITS
DECISION AND ORDER UPON A RECONSIDERATION OF THE ENTIRE CASE." 

BECAUSE OF THE IMPORTANCE OF THE QUESTIONS PRESENTED IN RELATION TO
THE SCOPE OF THE COURT'S JURISDICTION AND ITS APPROPRIATE EXERCISE,
CERTIORARI WAS GRANTED TO REVIEW THE ORDER OF MAY 5TH, GRANTING THE
BOARD'S MOTION TO WITHDRAW ITS PETITION FOR ENFORCEMENT, AND THE ORDER
OF JUNE 10TH, REMANDING THE CAUSE AS ABOVE STATED.  OCTOBER 10, 1938. 

FIRST.  THE AUTHORITY CONFERRED UPON THE BOARD BY SEC. 10(D)  FN1  OF
THE NATIONAL LABOR RELATIONS ACT, TO MODIFY OR SET ASIDE ITS FINDINGS
AND ORDER, ENDED WITH THE FILING IN COURT OF THE TRANSCRIPT OF RECORD. 
UPON THE FILING OF THE TRANSCRIPT IN CONNECTION WITH THE BOARD'S
PETITION FOR ENFORCEMENT, AND NOTICE, THE CIRCUIT COURT OF APPEALS HAD
JURISDICTION OF THE PROCEEDING AS PROVIDED IN SEC. 10(E) OF THE ACT, AS
FOLLOWS: 

"UPON SUCH FILING (OF THE TRANSCRIPT), THE COURT SHALL CAUSE NOTICE
THEREOF TO BE SERVED UPON SUCH PERSON, AND THEREUPON SHALL HAVE
JURISDICTION OF THE PROCEEDING AND OF THE QUESTION DETERMINED THEREIN,
AND SHALL HAVE POWER TO GRANT SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND TO MAKE AND ENTER UPON THE
PLEADINGS, TESTIMONY, AND PROCEEDINGS SET FORTH IN SUCH TRANSCRIPT A
DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD.  ..  THHE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL BE
CONCLUSIVE.  IF EITHER PARTY SHALL APPLY TO THE COURT FOR LEAVE TO
ADDUCE ADDITIONAL EVIDENCE AND SHALL SHOW TO THE SATISFACTION OF THE
COURT THAT SUCH ADDITIONAL EVIDENCE IS MATERIAL AND THAT THERE WERE
REASONABLE GROUNDS FOR THE FAILURE TO ADDUCE SUCH EVIDENCE IN THE
HEARING BEFORE THE BOARD, ITS MEMBER, AGENT, OR AGENCY, THE COURT MAY
ORDER SUCH ADDITIONAL EVIDENCE TO BE TAKEN BEFORE THE BOARD, ITS
MEMBER, AGENT, OR AGENCY, AND TO BE MADE A PART OF THE TRANSCRIPT.  THE
BOARD MAY MODIFY ITS FINDINGS AS TO THE FACTS, OR MAKE NEW FINDINGS, BY
REASON OF ADDITIONAL EVIDENCE SO TAKEN AND FILED, AND IT SHALL FILE
SUCH MODIFIED OR NEW FINDINGS, WHICH, IF SUPPORTED BY EVIDENCE, SHALL
BE CONCLUSIVE, AND SHALL FILE ITS RECOMMENDATIONS, IF ANY, FOR THE
MODIFICATION OR SETTING ASIDE OF ITS ORIGINAL ORDER.  THE JURISDICTION
OF THE COURT SHALL BE EXCLUSIVE AND ITS JUDGMENT AND DECREE SHALL BE
FINAL, EXCEPT THAT THE SAME SHALL BE SUBJECT TO REVIEW  ..  "  49 STAT.
454, 455. 

UNDER SEC. 10(F) THE JURISDICTION OF THE CIRCUIT COURT OF APPEALS IS
OF THE SAME CHARACTER AND SCOPE IN A PROCEEDING FOR REVIEW BROUGHT BY A
PERSON AGGRIEVED BY AN ORDER OF THE BOARD AS THE JURISDICTION WHICH THE
COURT HAS IN A PROCEEDING INSTITUTED BY THE BOARD FOR ENFORCEMENT. 
FN2 

WHILE SEC. 10(F) ASSURES TO ANY AGGRIEVED PERSON OPPORTUNITY TO
CONTEST THE BOARD'S ORDER, IT DOES NOT REQUIRE AN UNNECESSARY
DUPLICATION OF PROCEEDINGS.  THE AIM OF THE ACT IS TO ATTAIN SIMPLICITY
AND DIRECTNESS BOTH IN THE ADMINISTRATIVE PROCEDURE AND ON JUDICIAL
REVIEW.  WHERE THE BOARD HAS PETITIONED FOR ENFORCEMENT UNDER SEC.
10(E) AND THE JURISDICTION OF THE COURT HAS ATTACHED, NO SEPARATE
PROCEEDING IS NEEDED ON THE PART OF THE PERSON THUS BROUGHT INTO THE
COURT.  THE BREADTH OF THE JURISDICTION CONFERRED UPON THE COURT TO SET
ASIDE OR MODIFY IN WHOLE OR IN PART THE BOARD'S ORDER, OR TO PERMIT NEW
EVIDENCE TO BE TAKEN, NECESSARILY IMPLIES THAT THE PARTY PROCEEDED
AGAINST IS ENTITLED TO RAISE ALL PERTINENT QUESTIONS AND TO OBTAIN ANY
AFFIRMATIVE RELIEF THAT IS APPROPRIATE.  HERE, PETITIONER IN THE
BOARD'S PROCEEDING HAD SOUGHT AFFIRMATIVE RELIEF AND HAD TAKEN STEPS TO
ESTABLISH THAT RIGHT.  CONSIDERING THE SCOPE AND PURPOSE OF THE
JURISDICTION OF THE COURT IN A PROCEEDING UNDER SEC. 10(E), AND THE
POSITION AND RIGHTS OF THE PERSON PROCEEDED AGAINST, WE ARE UNABLE TO
CONCLUDE THAT THE BOARD HAS AN ABSOLUTE RIGHT TO WITHDRAW ITS PETITION
AT ITS PLEASURE.  WE THINK THAT PERMISSION TO WITHDRAW MUST REST IN THE
SOUND DISCRETION OF THE COURT TO BE EXERCISED IN THE LIGHT OF THE
CIRCUMSTANCES OF THE PARTICULAR CASE.  FN3 

WHILE IN THE INSTANT CASE THERE ARE TWO PROCEEDINGS, SEPARATELY
CARRIED ON THE DOCKET, THEY WERE ESSENTIALLY ONE SO FAR AS ANY QUESTION
AS TO THE LEGALITY OF THE BOARD'S ORDER WAS CONCERNED.  PETITIONER'S
ANSWER IN THE BOARD'S PROCEEDING PRESENTED SUBSTANTIALLY THE SAME
OBJECTIONS AS THOSE RAISED IN PETITIONER'S PROCEEDING FOR REVIEW.  THE
PRESENT CONTENTIONS OF THE PARTIES ARE LARGELY ADDRESSED TO PROCEDURAL
DISTINCTIONS, BUT IF WE FOLLOW THE COURSE OF THE TWO PROCEEDINGS WE
FIND THAT THERE IS REALLY BUT ONE ULTIMATE QUESTION AND THAT IS WITH
RESPECT TO THE COURT'S FINAL ACTION IN REMANDING THE CAUSE TO THE BOARD
FOR FURTHER PROCEEDINGS. 

BEFORE THE COURT ON MAY 5TH GRANTED THE BOARD'S MOTION TO WITHDRAW
ITS PETITION, THE OTHER PROCEEDING HAD BEEN INSTITUTED BY THE FILING OF
THE PETITION FOR REVIEW ON MAY 4TH.  THAT PROCEEDING WAS TAKEN BY
PETITIONER AS A PERSON AGGRIEVED BY THE ORDER OF DECEMBER 22, 1937, AND
WAS DOUBTLESS PROMPTED BY THE BOARD'S MOTION TO WITHDRAW ITS OWN
PETITION.  AS THE TRANSCRIPT OF THE RECORD OF THE ADMINISTRATIVE
PROCEEDING HAD ALREADY BEEN CERTIFIED AND FILED, IT WAS WITHIN THE
COURT'S CONTROL.  THE ORDER OF MAY 5TH WAS AMENDED ON MAY 9TH SO AS TO
PRECLUDE THE WITHDRAWAL OF THE TRANSCRIPT, AND ON THE SAME DAY THE
COURT ORDERED THAT THE TRANSCRIPT BE DEEMED TO BE FILED IN THE
PETITIONER'S PROCEEDING AS OF MAY 4TH.  WE SEE NO REASON TO DOUBT THE
POWER OF THE COURT TO RETAIN THE TRANSCRIPT OR TO AMEND ITS ORDER OF
MAY 5TH ACCORDINGLY, AND CERTIORARI HAS NOT BEEN SOUGHT BY THE BOARD IN
RELATION TO THE ORDER OF MAY 9TH.  OUR DECISION IN IN RE NATIONAL LABOR
RELATIONS BOARD, 304 U.S. 486, IS NOT APPOSITE.  THERE THE TRANSCRIPT
HAD NOT BEEN FILED, THE COURT HAD NOT ACQUIRED JURISDICTION OF THE
SUBJECT MATTER, AND THE BOARD STILL HAD THE AUTHORITY CONFERRED UPON IT
BY SEC. 10(D).  IN THE CIRCUMSTANCES OF THE PRESENT CASE WE THINK IT IS
CLEAR THAT THE COURT WAS POSSESSED OF EXCLUSIVE JURISDICTION OF THE
ADMINISTRATIVE PROCEEDING "AND OF THE QUESTION DETERMINED THEREIN," AND
THUS OF THE POWER OF "ENFORCING, MODIFYING, AND ENFORCING AS SO
MODIFIED, OR SETTING ASIDE IN WHOLE OR IN PART THE ORDER OF THE
BOARD."  SEC. 10(F).  AS ON THE BOARD'S PETITION THE COURT COULD GRANT
AFFIRMATIVE RELIEF TO THE PERSON AGAINST WHOM THE BOARD'S ORDER WAS
DIRECTED, SO ON THE COURT'S ENTERTAINING THE PETITION OF THAT PERSON
FOR REVIEW THE BOARD COULD SEEK NOT MERELY TO HAVE THE PETITION DENIED
BUT TO HAVE ITS ORDER ENFORCED, REGARDLESS OF ANY SEPARATE PROCEEDING
TO THAT END. 

IT THUS APPEARS THAT NEITHER THE ORDER OF MAY 5TH, GRANTING THE BOARD
PERMISSION TO WITHDRAW ITS PETITION, NOR THE ATTEMPT OF THE BOARD ON
MAY 6TH TO REASSUME CONTROL OF THE ADMINISTRATIVE PROCEEDING, NOR THE
BOARD'S WITHDRAWAL OF ITS PETITION ON JUNE 2D, ACCOMPLISHED ANYTHING OF
SUBSTANCE, AS THE BOARD, IN THE PRESENCE OF THE COURT'S CONTINUED AND
EXCLUSIVE JURISDICTION, REMAINED WITHOUT AUTHORITY TO DEAL WITH ITS
ORDER.  AND ANY QUESTION AS TO THE PROPRIETY OF THE COURT'S ORDER OF
MAY 5TH BECAME ONE OF MERELY ACADEMIC INTEREST AFTER THE COURT BY ITS
ORDER OF JUNE 10TH REMANDED THE CAUSE TO THE BOARD.  WE TURN TO THE
CONSIDERATION OF THAT ORDER. 

SECOND.  THE CAUSE WAS REMANDED TO THE BOARD FOR THE PURPOSE "OF
SETTING ASIDE ITS FINDINGS AND ORDER OF DECEMBER 22, 1937, AND ISSUING
PROPOSED FINDINGS, AND MAKING ITS DECISION AND ORDER UPON A
RECONSIDERATION OF THE ENTIRE CASE."  THE BOARD IN ITS APPLICATION FOR
THE REMAND STATED THAT IT WOULD TAKE THAT COURSE.  THE SPECIFIED
PURPOSE QUALIFIED THE COURT'S ORDER.  IT CREATED A CONDITION WHICH THE
BOARD WAS BOUND TO OBSERVE.  IF THE BOARD WITHIN A REASONABLE TIME
FAILED TO SET ASIDE ITS FINDINGS AND ORDER, WE HAVE NO DOUBT THAT THE
COURT COULD VACATE ITS ORDER OF REMAND AND PROCEED WITH ITS
CONSIDERATION OF THE PETITION TO REVIEW.  THE PROPRIETY OF THE ORDER OF
REMAND MUST BE CONSIDERED IN THAT ASPECT. 

THIRD.  IF THE COURT ITSELF HAD SET ASIDE THE FINDINGS AND ORDER OF
THE BOARD UPON THE GROUND, AS ASSERTED BY PETITIONER, THAT THE BOARD
HAD NOT CONSIDERED THE EVIDENCE AND MADE ITS OWN FINDINGS, BUT HAD
ADOPTED AS ITS OWN A DECISION PROPOSED BY ITS SUBORDINATES WITHOUT
AFFORDING PETITIONER ANY OPPORTUNITY TO BE HEARD THEREON, THE COURT
COULD HAVE REMANDED THE CAUSE FOR FURTHER PROCEEDINGS IN CONFORMITY
WITH ITS OPINION.  THAT GROUND BEING SUFFICIENT FOR SETTING ASIDE THE
ORDER, THERE IS NO PRINCIPLE OF PROCEDURE IN RELATION TO THE REVIEW
EITHER OF JUDICIAL DECREES OR ADMINISTRATIVE ORDERS WHICH WOULD REQUIRE
THE COURT TO EXAMINE OTHER GROUNDS OF ATTACK. 

IT IS FAMILIAR APPELLATE PRACTICE TO REMAND CAUSES FOR FURTHER
PROCEEDINGS WITHOUT DECIDING THE MERITS, WHERE JUSTICE DEMANDS THAT
COURSE IN ORDER THAT SOME DEFECT IN THE RECORD MAY BE SUPPLIED.  FN4
SUCH A REMAND MAY BE MADE TO PERMIT FURTHER EVIDENCE TO BE TAKEN OR
ADDITIONAL FINDINGS TO BE MADE UPON ESSENTIAL POINTS.  FN5  SO, WHEN A
DISTRICT COURT HAS NOT MADE FINDINGS IN ACCORDANCE WITH OUR CONTROLLING
RULE (EQUITY RULE 70 1/2) IT IS OUR PRACTICE TO SET ASIDE THE DECREE
AND REMAND THE CAUSE FOR FURTHER PROCEEDINGS.  FN6  THE JURISDICTION TO
REVIEW THE ORDERS OF THE LABOR RELATIONS BOARD IS VESTED IN A COURT
WITH EQUITY POWERS, AND WHILE THE COURT MUST ACT WITHIN THE BOUNDS OF
THE STATUTE AND WITHOUT INTRUDING UPON THE ADMINISTRATIVE PROVINCE, IT
MAY ADJUST ITS RELIEF TO THE EXIGENCIES OF THE CASE IN ACCORDANCE WITH
THE EQUITABLE PRINCIPLES GOVERNING JUDICIAL ACTION.  THE PURPOSE OF THE
JUDICIAL REVIEW IS CONSONANT WITH THAT OF THE ADMINISTRATIVE PROCEEDING
ITSELF,  - TO SECURE A JUST RESULT WITH A MINIMUM OF TECHNICAL
REQUIREMENTS.  THE STATUTE WITH RESPECT TO A JUDICIAL REVIEW OF ORDERS
OF THE LABOR RELATIONS BOARD FOLLOWS CLOSELY THE STATUTORY PROVISIONS
IN RELATION TO THE ORDERS OF THE FEDERAL TRADE COMMISSION, AND AS TO
THE LATTER IT IS WELL ESTABLISHED THAT THE COURT MAY REMAND THE CAUSE
TO THE COMMISSION FOR FURTHER PROCEEDINGS TO THE END THAT VALID AND
ESSENTIAL FINDINGS MAY BE MADE.  FEDERAL TRADE COMM'N V. CURTIS
PUBLISHING CO., 260 U.S. 568, 580, 583; INTERNATIONAL SHOE CO. V.
FEDERAL TRADE COMM'N, 280 U.S. 291, 297; FEDERAL TRADE COMM'N V. ROYAL
MILLING CO., 288 U.S. 212, 218; PROCTER & GAMBLE CO. V. FEDERAL TRADE
COMM'N, 11 F.2D 47, 48, 49; OHIO LEATHER CO. V. FEDERAL TRADE COMM'N,
45 F.2D 39, 42.  FN7  SIMILAR ACTION HAS BEEN TAKEN UNDER THE NATIONAL
LABOR RELATIONS ACT IN AGWILINES, INC. V. NATIONAL LABOR RELATIONS
BOARD, 87 F.2D 146, 155.  SEE, ALSO, NATIONAL LABOR RELATIONS BOARD V.
BELL OIL & GAS CO., 91 F.2D 509, 515.  THE "REMAND" DOES NOT ENCROACH
UPON ADMINISTRATIVE FUNCTIONS.  IT MEANS SIMPLY THAT THE CASE IS
RETURNED TO THE ADMINISTRATIVE BODY IN ORDER THAT IT MAY TAKE FURTHER
ACTION IN ACCORDANCE WITH THE APPLICABLE LAW.  SEE FEDERAL RADIO COMM'N
V. NELSON BROTHERS CO., 289 U.S. 266, 278. 

SUCH A REMAND DOES NOT DISMISS OR TERMINATE THE ADMINISTRATIVE
PROCEEDING.  IF FINDINGS ARE LACKING WHICH MAY PROPERLY BE MADE UPON
THE EVIDENCE ALREADY RECEIVED, THE COURT DOES NOT REQUIRE THE EVIDENCE
TO BE REHEARD.  FEDERAL TRADE COMM'N V. CURTIS PUBLISHING CO., SUPRA;
INTERNATIONAL SHOE CO. V. FEDERAL TRADE COMM'N, SUPRA.  IF FURTHER
EVIDENCE IS NECESSARY AND AVAILABLE TO SUPPLY THE BASIS FOR FINDINGS ON
MATERIAL POINTS, THAT EVIDENCE MAY BE TAKEN.  FEDERAL TRADE COMM'N V.
ROYAL MILLING CO., SUPRA; PROCTER & GAMBLE CO. V. FEDERAL TRADE COMM'N,
SUPRA; OHIO LEATHER CO. V. FEDERAL TRADE COMM'N, SUPRA; AGWILINES, INC.
V. NATIONAL LABOR RELATIONS BOARD, SUPRA. WHATEVER FINDINGS OR ORDER
MAY SUBSEQUENTLY BE MADE WILL BE SUBJECT TO CHALLENGE IF NOT ADEQUATELY
SUPPORTED OR THE BOARD HAS FAILED TO ACT IN ACCORDANCE WITH THE
STATUTORY REQUIREMENTS. 

FOURTH.  THE PRESENT CONTROVERSY THUS COMES TO THE NARROW POINT THAT
INSTEAD OF SETTING ASIDE THE BOARD'S FINDINGS AND ORDER, THE COURT HAS
ALLOWED THE BOARD ITSELF TO SET THEM ASIDE.  THE CONTENTION ON THAT
GROUND IS WITHOUT SUBSTANCE.  IN EITHER EVENT THE FINDINGS AND ORDER
ARE VACATED.  PETITIONER'S OBJECTION TO THE ORDER BECAUSE OF LACK OF
DUE HEARING RESULTS IN THE ABANDONMENT OF THE FINDINGS AND ORDER AND
PETITIONER WILL THUS BE COMPLETELY FREED FROM ANY DETERMINATION THEY
CONTAIN OR ANY OBLIGATION THEY IMPOSE. 

PETITIONER SAYS THAT THE BOARD HAS NOT CONFESSED ERROR.  THIS IS
IMMATERIAL IF THE ASSAILED FINDINGS AND ORDER ARE SET ASIDE.  NOR IS IT
IMPORTANT THAT THE COURT HAS NOT HELD THE FINDINGS AND ORDER TO BE
VOID.  IT IS ELEMENTARY THAT THE COURT IS NOT BOUND TO DETERMINE
QUESTIONS WHICH HAVE BECOME ACADEMIC. 

THERE IS NOTHING IN THE STATUTE, OR IN THE PRINCIPLES GOVERNING
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, WHICH PRECLUDES THE COURT
FROM GIVING AN ADMINISTRATIVE BODY AN OPPORTUNITY TO MEET OBJECTIONS TO
ITS ORDER BY CORRECTING IRREGULARITIES IN PROCEDURE, OR SUPPLYING
DEFICIENCIES IN ITS RECORD, OR MAKING ADDITIONAL FINDINGS WHERE THESE
ARE NECESSARY, OR SUPPLYING FINDINGS VALIDLY MADE IN THE PLACE OF THOSE
ATTACKED AS INVALID.  THE APPLICATION FOR REMAND IN THIS INSTANCE WAS
NOT ON FRIVOLOUS GROUNDS OR FOR ANY PURPOSE THAT MIGHT BE CONSIDERED
DILATORY OR VEXATIOUS.  PETITIONER HAD RAISED A SERIOUS QUESTION AS TO
THE VALIDITY OF THE FINDINGS AND ORDER.  THE BOARD PROPERLY RECOGNIZED
THE GRAVITY OF THE CONTENTION AND SOUGHT TO MEET IT BY VOLUNTARILY
DOING WHAT THE COURT COULD HAVE COMPELLED.  THAT WAS IN THE INTEREST OF
A PROMPT DISPOSITION, AND WHATEVER DELAY HAS RESULTED IS DUE TO
PETITIONER'S RESISTANCE TO THAT COURSE. 

PETITIONER INSISTS THAT IT HAD OTHER OBJECTIONS TO THE BOARD'S
CONDUCT OF THE PROCEEDING.  BUT IT WAS NOT NECESSARY FOR THE COURT TO
CONSIDER THEM, AS THE SETTING ASIDE OF THE FINDINGS AND ORDER CARRIED
WITH IT THE OPPORTUNITY FOR RECONSIDERATION AND THE MAKING OF A NEW
RECORD.  WHAT FINDINGS OR ORDER WOULD THUS BE MADE BECAME A MATTER OF
CONJECTURE AND IN ANY EVENT THESE AND THE MANNER OF ARRIVING AT THEM
WOULD BE SUBJECT TO ANY JUSTIFIED CRITICISM. 

AS THE SUBSTANTIAL QUESTION IS PRESENTED BY THE ORDER OF JUNE 10TH,
THE WRIT OF CERTIORARI IN NO. 182 IS DISMISSED.  THE ORDER OF JUNE 10TH
IN NO. 183 IS AFFIRMED.  AFFIRMED. 

FN1  SECTION 10(D) PROVIDES: 

"(D)  UNTIL A TRANSCRIPT OF THE RECORD IN A CASE SHALL HAVE BEEN
FILED IN A COURT, AS HEREINAFTER PROVIDED, THE BOARD MAY AT ANY TIME,
UPON REASONABLE NOTICE AND IN SUCH MANNER AS IT SHALL DEEM PROPER,
MODIFY OR SET ASIDE, IN WHOLE OR IN PART, ANY FINDING OR ORDER MADE OR
ISSUED BY IT."  49 STAT. 454. 

FN2  SECTION 10(F) PROVIDES: 

"(F)  ANY PERSON AGGRIEVED BY A FINAL ORDER OF THE BOARD GRANTING OR
DENYING IN WHOLE OR IN PART THE RELIEF SOUGHT MAY OBTAIN A REVIEW OF
SUCH ORDER IN ANY CIRCUIT COURT OF APPEALS OF THE UNITED STATES IN THE
CIRCUIT WHEREIN THE UNFAIR LABOR PRACTICE IN QUESTION WAS ALLEGED TO
HAVE BEEN ENGAGED IN  ..  BYY FILING IN SUCH COURT A WRITTEN PETITION
PRAYING THAT THE ORDER OF THE BOARD BE MODIFIED OR SET ASIDE.  A COPY
OF SUCH PETITION SHALL BE FORTHWITH SERVED UPON THE BOARD, AND
THEREUPON THE AGGRIEVED PARTY SHALL FILE IN THE COURT A TRANSCRIPT OF
THE ENTIRE RECORD IN THE PROCEEDING, CERTIFIED BY THE BOARD, INCLUDING
THE PLEADING AND TESTIMONY UPON WHICH THE ORDER COMPLAINED OF WAS
ENTERED AND THE FINDINGS AND ORDER OF THE BOARD.  UPON SUCH FILING, THE
COURT SHALL PROCEED IN THE SAME MANNER AS IN THE CASE OF AN APPLICATION
BY THE BOARD UNDER SUBSECTION (E), AND SHALL HAVE THE SAME EXCLUSIVE
JURISDICTION TO GRANT TO THE BOARD SUCH TEMPORARY RELIEF OR RESTRAINING
ORDER AS IT DEEMS JUST AND PROPER, AND IN LIKE MANNER TO MAKE AND ENTER
A DECREE ENFORCING, MODIFYING, AND ENFORCING AS SO MODIFIED, OR SETTING
ASIDE IN WHOLE OR IN PART THE ORDER OF THE BOARD; AND THE FINDINGS OF
THE BOARD AS TO THE FACTS, IF SUPPORTED BY EVIDENCE, SHALL IN LIKE
MANNER BE CONCLUSIVE."  49 STAT. 455. 

FN3  SEE COOPER V. LEWIS, 2 PHILLIPS, CH. 177, 181; BANK V. ROSE, 1
RICH EQ., 292, 294; STEVENS V. THE RAILROADS, 4 F. 97, 105; CHICAGO &
ALTON R. CO. V. UNION ROLLING MILL CO., 109 U.S. 702, 713-715; CITY OF
DETROIT V. DETROIT CITY RY. CO., 55 F. 569, 572, 573; PULLMAN'S PALACE
CAR CO. V. CENTRAL TRANSPORTATION CO., 171 U.S. 138, 146; EX PARTE
SKINNER & EDDY CORP., 265 U.S. 86, 93, 94; UNITED MOTORS SERVICE V.
TROPIC-AIRE, 57 F.2D 479, 481, 482; JONES V. SECURITIES & EXCHANGE
COMM'N, 298 U.S. 1, 19, 20. 

FN4  ESTHO V. LEAR, 7 PET. 130; LEVY V. ARREDONDO, 12 PET. 218; VILLA
V. VAN SCHAICK, 299 U.S. 152, 155, 156. 

FN5  CHICAGO, M. & ST. P. RY. CO. V. TOMPKINS, 176 U.S. 167, 179,
180; UNITED STATES V. RIO GRANDE IRRIGATION CO., 184 U.S. 416, 424;
LINCOLN GAS & ELECTRIC LIGHT CO. V. LINCOLN, 223 U.S. 349, 361-365. 

FN6  RAILROAD COMMISSION V. MAXCY, 281 U.S. 82; INTERSTATE CIRCUIT,
INC. V. UNITED STATES, 304 U.S. 55. 

FN7  COMPARE TEXAS & PACIFIC RY. CO. V. INTERSTATE COMMERCE COMM'N,
162 U.S. 197, 238, 239; SOUTHERN RAILWAY CO. V. ST. LOUIS HAY & GRAIN
CO., 214 U.S. 297, 302; FLORIDA V. UNITED STATES, 292 U.S. 1, 9;
BROTHERHOOD OF RAILROAD TRAINMEN V. NATIONAL MEDIATION BOARD, 66 APP.
D.C. 375; 88 F.2D 757, 761. 

MR. JUSTICE ROBERTS DID NOT HEAR THE ARGUMENT AND TOOK NO PART IN THE
CONSIDERATION AND DECISION OF THIS CASE.