Evening star., 1938-05-17

involving the fixing Of rates before
the Department of Agriculture and
this was construed by the National
Labor Relations Board itself possibly
to affect some of its pending cases
in which particular method of han
ding trial examiners report had
not been followed. The Labor Board
since has endeavored to withdraw the
record in some pending cases in
order to conform to what it has
thought was the proper way of fur
nishing hearing.
Now, however a decision by the
Supreme Court in the Mackay radio
case goes step further and says that
no particular procedure has been in
dicated by the Constitution but sim.
ply that substantial rights" must be
protected This is but another way
of saying that each case stands on its
own merits before the Supreme Court
whenever a question has been raised
as to full and fair hearing.
Oral Arguments Heard.
The Supreme Court having said
that in the Mackay case the require
ments of an adequate hearing were
met, observers will naturally examine
it to see wherein it differs from other
cases now pending before the courts
which involve issues relating to a full
and fair hearing. For one thing. the
Mackay case afforded the parties an
opportunity for oral argument before
the labor board itself and this is
considered the equivalent of being
able to take exception to views held
by the board prior to the actual reach
ing Of conclusions or making of
findings.
In other cases now pending, it is
believed that no opportunity for oral
argument has been given by the
labor board and that the trial ex-
aminer's reports have been trans
ferred to the labor board itself and
findings have been made before the
employer, for example. had chance
through his counsel to refute testi-
mony or make his contentious.
The rules of the labor board have
been faulty in this respect, for they
provided that the board could transfer
q case from trial examiner and then
decide the matter forthwith on the
record, or else after filing of briefs. or
else after oral argument In the
Mackay case it appears that not only
was oral argument held, but an op-
portunity was given for the filing Of
briefs before the board made public
its conclusions.
Parallels Seen.
But had the board followed the first
Of the three optional methods per-
mitted by its rules. would this have
been full and fair hearing as set
forth by Chief Justice Hughes in his
now-famous stockyards case decision?
The chances are that all cases in which
neither oral argument nor the filing
Of briefs has been permitted would
fall under the same ban as the pro-
cedure in the stockyards case
A question arises, incidentally, In
connection with some pending labor
cases, as to whether the employers had
a chance for oral argument and did
not take it even though the rules did
provide for such opportunity One of
the rules of the board states that the
board shall notify parties Of the time
and place of any submissions of briefs,
oral argument, or taking of testimony.
So it would seem that an obligation
rests on the board to notify the parties
Of their opportunity to be heard before
findings or conclusions are reached
and if no such opportunity has been
given. then there has not been full
and fair hearing within the meaning
Of the Chief Justices opinion in the
stockyards case.