National Labor Relations Board v. Carlisle Lumber Co. ( 1938 )

STEPHENS, Circuit Judge

(concurring). .

The reasons which have led me to join in our present decision are not alone those expressed in Judge HANEY’S opinion. However, as to matters not covered herein I am in complete accord with Judge HANEY’S expressions.

In support of our holding that Congress did not contemplate further orders such as made in this case, and therefore intended that the “employee” status should become fixed as of the date of the Board’s first order, I think it of prime importance to point out that the terms of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., negative the idea that the Board has power to make “supplementary orders”.¹ It is my opinion that after the service of the notice of filing the transcript of the record in this Court, the Board lost all power to change its original order or to make a new order in the proceeding. Section 10(d) of the Act, 29 U.SiC.A. § 160 (d), provides that the Board can “modify or set aside, in whole or in part” any finding or order “made or issued by it * * * until a transcript of the record in a case shall have been filed in a court.” (Emphasis supplied.) Once the transcript of the Board’s proceedings is before the court, the court has full and exclusive jurisdiction to review the Board’s order in the respects indicated in the Act. In re Petition of National Labor Relations Board, 58 S.Ct. 1001, 82 L.Ed. 1482, May 31, 1938. It then becomes the province of the court 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” Section 10(e), 29 U.S.C.A. § 160(e). It is true that after the Court has obtained jurisdiction the Board may, upon order of the court, take additional evidence and “modify its findings as to the facts, or make new findings, by reason of additional evidence so taken” Section 10(e), and I think that is exactly what was done in this case. It, however, cannot make a new order or alter its prior order; it may only “file its recommendations, if any, for the modification or setting aside of its original order” Section 10(e).

In the instant case, under our suggestion and with our authorization, the Board has exercised its power to take additional evidence and make additional detailed findings, and has followed them with so-called “supplementary orders”. Perhaps we misled the Board by suggesting in our order of partial enforcement that the Board should certify additional “findings and order thereon to us”. But as orders they must be disregarded as unauthorized by the Act. Nor can such “orders” be considered as recommendations for the modification or the setting aside of its original order. If they represented a departure from the principle laid down in the order of September 26, 1936, they might be considered as “recommendations”. But such is not the case. They purport only to require action “pursuant to section 2(b) of the Board’s order of September 26, 1936”. When their wording is examined together with the findings of fact which they accompany, it is seen that they simply identify those “employees” who were covered in general terms by the September 26, 1936 order, together with the amounts due to each employee under that order. Thus such “orders” though phrased in mandatory language, are in effect, with the schedules referred to therein, nothing more than ultimate findings of fact, and as such but duplicate the findings proper.² Consequently, I believe that the so-called “supplementary orders” should be entirely disregarded in our determination of this case.

There are additional reasons for holding that once the Board makes its order requiring reinstatement with back pay of “employees” the status of the individuals affected thereby becomes fixed. If occurrences subsequent to the order of the Board were material it would be impossible to determine the propriety of reinstatement and back wage orders upon the record made at the Board’s hearing — the record upon which this Court has a duty to determine the validity of the order and the respondent’s duty to comply therewith. In the interval between issuance of the Board’s order and the determination of the matter by the Court, the employees discriminated against might find work elsewhere. Since this could be neither affirmed nor negatived by the record upon which the Board must reach a decision, the Board could never know whether reinstatement with hack wages was an appropriate remedy in a particular case, nor could the Court judge the propriety of the order upon the record made before the Board.

The Board having made an order, an obligation to comply therewith arises. That duty cannot be lessened because the person affected thereby chooses to litigate its validity. The duty would be lessened if events occurring during the period of litigation affected the validity of the order, for it is evident that the longer the period between discharge and offer of reinstatement, the more likelihood there is that those who have ceased working because of a labor dispute or an unfair labor practice •will gain “regular and substantially equivalent employment elsewhere”. Thus the postponement by the employer of compliance with the order of reinstatement could redound to his advantage. Offsetting this ■advantage would be a tendency on the part of employees who could manage to exist without employment or upon temporary or irregular employment, to be reluctant, once their reinstatement with back pay had been ordered, to accept equivalent employment elsewhere, for by so doing they would sacrifice the total amount of their accrued back pay. Such a result would not only increase the amount of back pay owed by the employer, but would burden interstate ■commerce by “impairing the efficiency * * * of the instrumentalities of commerce * * * [and] causing diminution of employment and wages” — conditions the Act was designed to eliminate. Section 1, 29 U.S.C.A. § 151.

Our conclusion as to the date upon which the status of an individual as an ■“employee” is to be determined, and having been determined, is fixed, is, I believe, in accord with a recent decision of the Fourth Circuit Court of Appeals made on rehearing óf the case of Mooresville Cotton Mills v. National Labor Relations Board, 97 F.2d 959. The precise point here involved was not before the Court in the cited case. However, in disposing of the contention of the Board that unless status is to be fixed as of the date of the unfair labor practice it would be impossible for the Court to determine on the record who are employees, the Court said: “ * * * the facts can be subsequently determined by agreement or at a subsequent hearing after the principles of the decision have been laid down, as is now done under ordfers of the Board affecting the payment of back wages in an undetermined amount. Relief may also be had under Section 10(e) ■of the Act, 29 U.S.C.A. § 160(e), which gives either party a right to appeal to the court for leave to produce additional evidence11. 97 F.2d 959, 963. (Italics added.) It is evident that the court could not have considered the italicized portion of the quoted remarks an answer to the Board’s contention, unless it was in accord with our conclusion that facts occurring after the date of the Board’s order of reinstatement are immaterial.

I am thus brought to the consideration •of the question as to whether the failure of the Board to identify the individuals to whom back wages are due, together with the amounts due to each (as of the date of making of the order) made the order to reinstate with back pay unenforcible. Nothing in the Act requires such findings. Findings of this nature are not essential to the mechanics of enforcement, since the parties could independently come to an agreement as to the amount owing. Or if the compliance made or offered to be made by the employer did not satisfy the Board’s interpretation of its order, the Board, having obtained a decree of enforcement, could institute appropriate proceedings based upon an alleged failure to comply, at which time there would of necessity be a determination of the disputed facts.

The detail available as to the amount of back pay owing to each employee, however, can unquestionably be required by the Court in furtherance of its duty of “enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board”. In a case such as this, where numerous individuals are, or claim to be affected by an order of reinstatement, the uncertainty arising out of a failure to designate those to whom the order is meant to apply, would likely result in disagreement between the Board and the employer, culminating in the institution of contempt proceedings in the enforcing Court. The very institution of such proceedings would cast an undeserved onus upon an employer whose sincere intention was to comply with the full terms of the order. Moreover, such proceedings would no doubt prove a great burden upon the enforcing court — a burden which morq readily and more properly could be shouldered by the Board in the first instance. It is further to be borne in mind that an order may be so indefinite as to absolve a non-compliant of contempt. National Labor Relations Board v. Bell Oil & Gas Co., 5 Cir., 98 F.2d 405, July 29, 1938. And by the same token, uncertainty may warrant the denial of a petition for enforcement. In re Huntley, 9 Cir., 1898, 85 F. 889; McFarland v. United States, 7 Cir., 1923, 295 F. 648, 650; United States v. Atchison, T. & S. F. R. Co., C.C.D.C., 1883, 16 F. 853; In re Cary, D.C.S.D.N.Y., 1882, 10 F. 622, 626. cf. Terminal R. R. Ass’n v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 8, 69 L.Ed. 150.

But that is not to say that an order which covers “employees” without identification of individuals and amounts to be paid is for that reason invalid. We must distinguish between the propriety of an order of the Board and the power of the Board to make such an order. In the present case we think that the order of the Board was valid as framed,³ and that it has taken a proper course in bringing before this court, in conformity with the procedure authorized by section 10(e) of the act, findings as to the individuals covered by the order, and as to the back pay owing to each insofar as it was accrued as of the time of the taking of the evidence upon which the additional findings are based.

In my opinion the question as to whether the Board may make an award of back pay witlioitt reinstatement under its general power to order such affirmative action as will effectuate the'policies of the Act, is not now before this Court, and need not be decided by us. Whether or not the Board may make such an order, it does not seem that it intended to do so in the present case. The provision of the Board’s order⁴ requiring reinstatement [section 2(a)] and the provision for back pay [section 2(b)] seem inseparable, and together constitute an order for affirmative action by way of “reinstatement with back pay”. That this is so is evidenced by the fact that the back pay order runs “to the date of respondent’s offer of reinstatement”. (Emphasis supplied.) But even if the back pay provision of the order may be considered as independent of the reinstatement provision, nevertheless there is no necessity for our now deciding whether, as such, it can stand alone, since we do decide that construed as a “reinstatement with back pay” order, the order is valid as to all of the individuals claimed by the Board to be covered by it. In this state of the case, I see no reason for questioning the authority of Mooresville Cotton Mills v. National L. R. Board, 4 Cir., 1938, 94 F.2d 61, 66.

In tlie present case I do not believe it to be a complete answer to respondent’s contention that the back pay provision is arbitrary and capricious to merely say, as does the main opinion, that such an order is authorized by the Act and that the provision in the Act is constitutional. It is one thing to contend that an order is unauthorized by the Act or that a provision of the Act is unconstitutional however applied, and another to raise the claim that an order is “arbitrary and capricious” and thus improper. The attack now made is not upon any provision of the Act, but upon the reasonableness of the order in the circumstances of this particular case. However, I do not believe that the back pay provision of the order is arbitrary or capricious. Whether affirmative action ordered by the Board will effectuate the policies of the Act, i. e. “eliminate the causes of certain substantial obstructions to the free flow of commerce * * * by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association * * *, for the purpose of negotiating the terms and conditions of their employment” (Section 1) is an inference of fact to be drawn by the Board if there is evidence to support it. National Labor Relation Board v. Pacific Greyhound Lines, Inc., 303 U.S. 272, 275, 58 S. Ct. 577, 82 L.Ed. 838; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307. When it made its order of September 26, 1936, the Board pointed out that: “ * * * the respondent’s discrimination against the members of the Union, commencing with the publication of its notice of July 29, 1935, thereafter making impossible for its employees who were members of the Union to return to work, has resulted in an untold loss of wages. In order to fully effectuate the purposes of the Act, this loss of wages to the members of the Union, which resulted directly from respondent’s illegal conduct in publishing the aforesaid notice and in further pursuing its discriminatory ‘yellow dog’ policy, must be restored. We shall therefore hereinafter order the respondent to make whole those members of the Union for any loss of wages they have suffered in consequence of the aforesaid illegal conduct of respondent.” (Em-' phasis supplied.) We may not substitute our independent judgment for that of the Board, unless its orders are arbitrary or capricious in that the evidence affords no reasonable basis for them. National Labor Relations Board v. Pacific Greyhound Lines, Inc., supra; Washington Coach Co. v. National Labor Relations Board, 301 U.S. 142, 147, 57 S.Ct. 648, 650, 81 L.Ed. 965; Swayne & Ployt, Ltd. v. United States, 300 U.S. 297, 57 S.Ct. 478, 81 L.Ed. 659; National Labor Relations Board v. J. Freezer & Son, Inc., 4 Cir., 1938, 95 F.2d 840; Agwilines, Inc. v. National Labor Relations Board, 5 Cir., 1936, 87 F.2d 146, 151. It cannot be said that the Board’s order was without support in the evidence. As indicated by the Board, the order has for its purpose restoration of the situation of the employees as it presumably would have been absent respondent’s unfair labor practices. The record revealing, as it does, that the employer has at every turn resisted the efforts of the employees to organize and collectively bargain, and that the loss of pay to the employees resulted from this unlawful resistance, there is ample support for the conclusion that reimbursement to the employees of the losses thus incurred was an appropriate way to give effect to the policy of the Act.

1 Certified and filed with us together with the transcript of the Record made on the supplementary hearings are two supplementary decisions and orders. The “orders” identically provide that: “ . . the respondent shall take the following affirmative action, pursuant to Section 2(b) of the Board’s order of September 26, 1936, which the Board finds will effectuate the policies of the Act:

“Make whole each of the persons named in Schedule A for the loss of pay suffered by reason of the respondent’s discrimination to February 1, 1938, by payment to each of thorn respectively, of the sum set forth following his name, which sum is equal to that which each would have earned as wages from July 29, 1935, the date of the discrimination, up to February 1, 1938, less the amount each has earned during that period.”

2 Both supplementary decisions incorporate the following finding: “ * * * The employees named in Schedule A were employed by the respondent on May 3, 1935, struck on that date or thereafter, were members of the Union on July 29, 1935, and had not obtained regular and substantially equivalent employment elsewhere at the time of our order on September 20, 1930, which directed that they be offered reinstatement. We find that back wages are due to such persons under the order heretofore made by the Board, and we find that the amount of back pay due to each of such persons for the period up to February 1, 1938, pursuant to that order, is that set forth in Schedule A after Ms name.”

3 Tli.-Jt tlie order was intended to be applicable only to those who were “employees” within the definition of the Act as of the date of the order, definitely appears from the fact that by its terms it is applicable only to those “who have not since received regular and substantially equivalent employment elsewhere”.

4 “2. Take the following affirmative action, which the Board finds will effectuate tlie policies of the Act:

“(a) Offer reinstatement to its employees who were employed on May 3, 1935, who struck on that date or thereafter, and who have not since received regular and substantially equivalent, employment elsewhere, where the positions held by such employees on May 3, 1935 are now filled by persons who were hired for the first time on July 8, 1935 or thereafter, and place all other employees who were employed by the respondent on May 3, 1935, who struck on that date or thereafter, and who have not since received regular and substantially equivalent employment elsewhere, on a list to he offered employment if and when their labor is needed before any new employees are hired;

“(b) Make whole its employees who were employed on May 3, 1935, who struck on that date or thereafter, and who were members of -the union on July 29, 1935, the day of the respondent’s first act of discrimination against all of the members of the union, for any losses of pay they have suffered by reason of such discrimination, by payment to each of them a sum equal to that which each would normally have earned as wages during tlie period from July 29, 1935 to the date of respondent’s offer of reinstatement, less the amount earned by each of them during such period.”