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 Examiner, to-wit, correspondence and other data found in the Board’s “informal file” of the case. The petition is accompanied by an affidavit of certain statements made before a Congressional Committee as to the conduct of certain cases pending before the Board and by such affidavit the affiant seeks to show the general practices in the handling of cases by the Board. All but one of such affirmative allegations of the answer are made upon information and belief, and no specific incidents of the use of non-record evidence is alleged and no specific injury to Ford is pointed out either by the allegations or in argument. The Morgan cases (Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288, and Id., 304 U.S. 1, 58 S.Ct. 773, 999, 82 L.Ed. 1129) are principally relied upon by petitioner Ford.
After the hearings before the Examiner had been concluded the latter officer made his intermediate report of the case to the Board. Ford had access to such report and filed with the Board numerous exceptions to it. Thereafter Ford filed a brief with, and orally argued the case to, the Board members.
Ford, it will be observed, does not contend that its affirmative allegations go to any deprivation of due process or of any prejudice to it in any of the formal pro*768ceedings of the case, but does allege that notwithstanding the regularity of the procedural steps the Board permitted its subordinate “Review Attorneys” to consult and use the “informal file” in making their report to it of their study of the case and that members of the Board took the suggestions of the Review Attorneys without themselves reading, considering or appraising the evidence or inspecting the exhibits. Ford also complains that the prosecution and judicial functions of the Board were not kept properly separated.
The relations of the Board to its attorneys is not the same as the relation between a Court and attorneys in an ordinary adversary law suit as counsel for Ford would seem to argue. In Board proceeding's the Board itself institutes the proceeding before itself after charges have been lodged with it, and its attorneys are a part of the machinery authorized by the Act of Congress- for the adjustment of labor difficulties with the least possible delay in order that the commerce between the states shall not be unduly affected. It is obvious that the matters contained in the informal file are in the minds of the judicial triumvirate — the members of the Board — and it will not be presumed that because the attorney staff advisory to the Board may also have knowledge contained in such file that either the attorneys or the Board will make improper use of such knowledge.2 See Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed 869.
The flat statements in the allegations that the Board did not consider the evidence or the exceptions to the intermediate report in the face of the uncontradicted fact that Ford attorneys appeared before the Board and orally argued in support of their exceptions do not appeal to us as a sufficient ground for exercising our discretion3 in favor of our ordering a bill of discovery, which the proceeding before us really is in effect.
The very magnitude of the task placed upon the Board is eloquent of the fact that the Congress never conceived the Board as a true Court itself listening to every detail of every case without consultation with its Examiner and other assistants provided for in the Act.
The motion is denied.
National Labor Relations Act of July 5, 1935, c. 372, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.
As to the necessity for a prima facie showing before an inquiry will be made into the manner in which a judicial determination has been made, see Clark v. United States, 289 U.S. 1, 14, 18, 53 S.Ct. 465, 77 L.Ed. 993; Chicago, B. & Q. R. Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636; Great Northern R. Co. v. Weeks, 297 U.S. 135, 145, 56 S.Ct. 426, 80 L.Ed. 532; Federal Communications Commission v. Sanders Bros. Radio Station, supra.
As to the extent of the presumption that the judicial tribunal has not arrived at its judgment through material de hors the record, see Keith Lumber Co. v. Houston Oil Co., 5 Cir., 257 F. 1, 8 certiorari denied 250 U.S. 666, 40 S.Ct. 13, 63 L.Ed. 1197; Unkle v. Wills, 8 Cir., 281 F. 29, 34; Jonah v. Armstrong, 10 Cir., 52 F.2d 343, 345; National Reserve Ins. Co. v. Scudder, 9 Cir., 71 F.2d 884, 888; Wade v. Blieden, 8 Cir., 86 F.2d 75, 77; Anderson, v. United States, 8 Cir., 65 F.2d 870, 872.
As to the presumption of regularity of official acts, see Smith v. St. Louis & S. W. R. Co., 181 U.S. 248, 258, 21 S.Ct. 603, 45 L.Ed. 847; United States v. Chemical Foundation, Inc., 272 U.S. 1, 14, 15, 47 S.Ct. 1, 71 L.Ed. 131; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 228, 59 S.Ct. 206, 83 L.Ed. 126; Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129; De Cambra v. Rogers, 189 U.S. 119, 122, 23 S.Ct. 519, 47 L.Ed. 734; United States ex rel. West v. Hitchcock, 205 U.S. 80, 86, 27 S.Ct. 423, 51 L.Ed. 718.
Rule 7 (a) Federal Rules of Civil Procedure.