113 F.2d 627
been treated as evidence of interference with the exercise of the employees’ rights under the Act. But as a general rule, statements of employers or of employees can have no rational probative force as evidence in a proceeding before the National Labor Relations Board except when such statements relate directly to a factual issue before the Board.
The statements in question in this case were not directed to employees but to the readers of the publications of respondent. The record indicates beyond question that these statements appeared in print a considerable length of time after the commission of the unfair labor practices. We are convinced that they afforded no substantial evidence of respondent’s bad faith at the time that he was meeting with the representatives of his employees.
Furthermore, we feel that by the Board’s own action the articles in question were before the Board only as evidence that the respondent was engaged in interstate commerce. The record contains the following entry:
“Mr. Reynolds. (Attorney, National Labor Relations Board) As further evidence bearing upon the question of the Board’s jurisdiction in this case I wish to offer copies of each of the three magazines published by the Lightner Publishing Corporation, which tend to show national scope of the business of the Lightner Publishing Company, national advertising and circulation, and so forth. As Board’s Exhibit No. 3, I will offer the November 1937 issue of Automatic Age; as Board’s Exhibit 3-A, I offer the November 1937 issue of Hobbies; as Board’s Exhibit No. 3-B, I offer in evidence January 1938 issue of All Pets Magazine.
“Trial Examiner Erickson. They may be received. (Thereupon, the magazines above referred to were marked as ‘Board’s Exhibits Nos. 3, 3-A and 3-B,’ respectively, and were received in evidence.)”
While we realize that rules relating to evidence are relaxed in the case of administrative hearings, we are of the opinion that an exhibit introduced and accepted by the Board for a single purpose only cannot be used by the Board for an independent and unrelated purpose.
The petition, of the National Labor Relations Board for an order of enforcement is granted and the enforcement of the order of the Board, as modified, is decreed.
HOUGHTON MIFFLIN CO. v. STACKPOLE SONS, Inc., et al.
No. 341.
Circuit Court of Appeals, Second Circuit.
July 17, 1940.
Appeal from the District Court of the United States for the Southern District of New York.
Action by the Houghton Mifflin Company against Stackpole Sons, Inc., and another for alleged infringement of a copyright. From a summary judgment of the District Court for the Southern District of New York, 31 F.Supp. 517, awarding an interlocutory injunction; defendants appeal.
Judgment modified in accordance with opinion.
