(concurring specially):
Clearly, the Board’s order should not be enforced, for the reasons, at the least, assigned in the Court’s opinion. It discards as a ground of decision, however, what seems to me is a fundamental infirmity in the Board’s procedure — the denial of an opportunity for the employer to be heard on decisive issues in the case before they are decided. This deprivation occurs frequently and, for me, is so destructive of due process that it should be unequivocally disapproved.
I start with the warranted finding in the opinion that here the employer’s “ob*833jections to the election and exceptions to the report” of the Regional Director did in truth pose “substantial and material issues with respect to the conduct or results of the election”. The Board ex parte, i. e. without a hearing, had held otherwise. Incidentally, this decision was founded on the report of the Regional Director, who made his investigation of the objections ex parte and overruled them ex parte.
I heartily agree with the Court that “Due process of law demands and the present Rules and Regulations of the Labor Board provide that where there is a substantial and material issue of fact relating to the validity of a representation election that a hearing be conducted at some stage of the administrative proceeding before the objecting party’s rights can be affected by an enforcement order”. I am mindful, too, that there can be no judicial hearing as to the election’s validity ahead of the refusal-to-bargain proceeding; the hearing I insist upon is a fair administrative hearing only. My departure from the opinion of the Court is in its conclusion that since the company after the decision of the Board had an opportunity to present evidence before the Examiner, the company was thus afforded a “sufficient hearing”.
“Hearing”, it is hornbook, presupposes an unpre-judged judgment on the issues at stake. Otherwise it is an obvious mockery of due process. The procedure, instantly, amounted to just that. Admittedly, the “substantial and material issues” — validity of the election — were completely and finally decided by the Board, ex parte, long before the hearing of the employer by the Examiner. It had been put aside by the Board as definitely settled, until the unfair practice case came on before the Examiner. The company was then, for the first time, allowed to put on evidence about the election, and then only before a subordinate of the Board who was thus called upon to review his superiors’ determination. This post-decision “hearing” is now, I think erroneously, held to be a “sufficient hearing”.
The Board’s procedure cannot be justified as analogous to the practice of courts to rule upon motions for reconsideration or rehearing without the presence of the parties or the presentation of further evidence or arguments. In court such motions and rulings have been preceded by a full hearing when the issues, as the Court declares instantly, are substantial and material. But presently the sole and exclusive chance accorded the employer to submit its case fully was the hearing before the Examiner, some time after the Board’s determination of the issue. The Examiner was then to decide whether the Board had been right — a decision to be made “under the gun” of the Board. It is as if an appellate court had rendered an opinion without a hearing and then, without vacating it, had given permission to the unsuccessful litigant to ask the lower court to allow a hearing and decide whether the appellate ruling should stand — this in turn to be re-reviewed by the appeals court.
Curtailment of a party’s rights in an administrative proceeding in this manner was condemned in Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). In discussing the fundamental requisites of an administrative hearing, with particular reference to the conduct of the Secretary of Agriculture under the Packers and Stock Yards Act, strikingly similar to the procedure of the Board here, the Chief Justice said:
“The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command.” 304 U.S. at 18, 58 S.Ct. at 776. (Accent added.) ******
*834“Congress, in requiring a ‘full hearing,’ had regard to judicial standards, —not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. If in an equity cause, a special master or the trial judge permitted the plaintiff’s attorney to formulate the findings upon the evidence, conferred ex parte with the plaintiff’s attorney regarding them, and then adopted his proposals without affording an opportunity to his opponent to know their contents and present objections, there would be no hesitation in setting aside the report or decree as having been made without a fair hearing. The requirements of fairness are not exhausted in the taking or consideration of evidence but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps.” 304 U.S. at 19-20, 58 S.Ct. at 777.
This same thesis was expounded, and applied by refusal to enforce the Board’s order because passed upon a contrary procedure, in Russell-Newman Mfg. Co. v. NLRB, 370 F.2d 980, 984 (5 Cir. 1966), the Court saying:
“Due process in an administrative hearing includes a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law. * * *”
Nor can an employer be treated in this cavalier fashion on the score of expedition. Rights cannot be sacrificed in the name of dispatch. Nor is it legalized because the adjudicating tribunal cannot devise a better process. Cf. Russell-Newman Mfg. Co. v. NLRB, supra, 370 F.2d 980, 984; NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 461 (1 Cir. 1962).
When the Court found, as it has, that the objections and exceptions of Bata were not frivolous but nevertheless had been disposed of ex parte, then the Court should have immediately set aside the Board’s order. Not only was this a clear refusal of due process; it was irremediable under the Board’s established procedures. A post-decision “hearing” hardly fulfills the “hearing at some stage of the proceedings” now demanded by the Court and by the precedents it cites.
“In consequence a court cannot properly enforce an order finding an employer guilty of an unwarranted refusal to bargain with a union certified in an election if it appears, with respect to challenges affecting the result, either that they were disposed of erroneously as a matter of law or that the employer raised ‘substantial and material factual issues’ under the Regulations and was denied a hearing that he seasonably requested. * * * ” N L R B v. Joclin Mfg. Co., 314 F.2d 627, 631-632 (2 Cir. 1963). Accord, United States Rubber Co. v. N L R B, 373 F.2d 602 (5 Cir., 1967).
This withdrawal of due process from the proceeding was aggravated in the present case by the nature of the so-called sufficient hearing. The company is held to have forfeited its protestations of an unfair election because it failed to put on evidence to that effect before the Examiner. It is small wonder that the company abstained. The Examiner had not even been directed by the Board to hear the employer. By telegram the company was merely given “leave * * * to request the Trial Examiner to permit” it to be heard. (Accent added.) Aside from this casualness of the Board toward the interest of the employer, the Examiner himself was so perplexed as to his authority and duties that he asked for argument from the parties as to what he should do.
True, finally he invited the employer to reiterate its objections and exceptions and to submit its evidence, but the Examiner was not sure of what could be done with it, even if it preponderated in favor of the company. Nothing could have been accomplished; the game was over before it began. Was it reasonable to expect the Examiner to reverse the *835Board? Yet the employer is cast in judgment for default in not pursuing this expectation.
I join in the result of the Court’s opinion, but I regret it endorses the Board’s procedure.