# National Labor Relations Board v. Pure Oil Co. > Court of Appeals for the Fifth Circuit · April 24, 1939 · 103 F.2d 497 URL: https://www.frixlaw.com/law-library/cases/6877083 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD v. PURE OIL CO. - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** April 24, 1939 - **Citations:** 103 F.2d 497; 4 L.R.R.M. (BNA) 628; 1939 U.S. App. LEXIS 3599 - **Precedential status:** Published - **Opinion:** Dissent by Sibley - **Judges:** Foster, Holmes, Sibley - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6877083 ## Opinion text SIBLEY, Circuit Judge (dissenting). The Board’s order.is that Pure Oil Company cease and desist: A. from dominating or interfering with the administration, or contributing financial support, of Refinery Workers Union or any other labor organization of its employees; B. from in any manner interfering with, restraining or coercing its employees in the exercise of the right of self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, 29 U. S.C.A. § 157; C. from discouraging membership in Oil Workers Union, Local 228, or in any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; and that affirmative action be taken by withdrawing recognition of Refinery Workers Union, and by posting notices for sixty days that it will cease and desist as ordered, and will not contribute support to Refinery Workers Union or any labor organization, will not discourage membership in. Oil Workers International Union, or discriminate against employees by reason of union activity or affiliation. The judgment of this court prohibits and commands in the same words. This, I think, is improper and probably in excess of the court’s constitutional powers. By moving to strike Pure Oil Company’s defense, the Board has admitted allegations that everything has been fully done that was affirmatively required, and that Refinery Workers Union was dissolved even before the Board’s order was made. It is, of course, vain to enjoin or command specifically what has already been accomplished. The effective injunction will be only the general words of the order, which are nothing but the words of the National Labor Relations Act in Section 7 and Section 8 (1) (2) (3), 29 U.S.C.A. §§ 157 , 158 (1-3), defining unfair labor practices. Henceforth Pure Oil Company will live in these respects not under the law but under the order of this court. It will be tried for unfair labor practices not by the Board’s investigation of the facts, but under a rule for contempt issued by this court. If all employers who commit a single unfair labor-practice may be subjected to orders as broad as the Act itself, and if these orders *499 can be made the judgment of this court on the bare request of the Board, we shall soon be exercising the function of the Board. The complaint in this case which the Board tried included only two matters: That the Refinery Workers Union was company dominated, and that one Tom Park-hill had been discharged discriminatorily for his activity in the rival Oil Workers International Union. The Board abandoned the latter ground of complaint on the hearing. The Refinery Workers Union disbanded. The complaint was thereupon closed by Pure Oil Company agreeing to the order that was passed. I think the order far broader than it ought to have been, but it was agreed to, and is not now attacked. But Pure Oil Company very correctly objects to its being made the judgment of this court; not because the matter is wholly moot, but because it will put the Company under an unlawful government by injunction rather than by the law. It has been held that the Interstate Commerce Commission, having rightly commanded a carrier to cease and desist from a particular breach of law, could not ask the enforcing court to prohibit generally all future breaches, for the very reason I have stated. New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 404 , 26 S.Ct. 272 , 50 L.Ed. 515 . But there is deeper reason why the Board’s petition here should be denied. No justiciable controversy is shown. This is a court, and as such under the Constitution can act only on cases and controversies. The court is not a registration office for the orders of the Board. Nor is the Board an arm of the court. When, proceeding under the Act, Sect. 10(e), 29 U.S.C.A. § 160 (e), the Board asks enforcement of an order, it comes into court as a litigant. It must show some specific thing that ought to be done or prohibited, and not that the person proceeded against, having been found a first offender in some one particular, ought to be put on general probation by the court. The present petition alleges only that the Board made this order by consent of Pure Oil Company, that for some undisclosed reason the Board had announced a purpose to set aside the order and reopen the complaint, that the Company said it could not be done, and that for any new charge the Board should proceed on a new complaint or else enforce the old order in court, and that the Board withdrew its notice to reopen, and now asks enforcement. The petition wholly fails to mention anything which Pure Oil Company has done or threatened or refused to do and which requires this court to do something in the way of enforcement. On its face it fails to make a definite case or controversy. When a respondent seeks to set aside an order of the Board, the order itself is the controversy. When the Board asks enforcement the order is not in controversy, but something in defiance of it must appear. The bare fact that an order has been made and not set aside does not make a case before this court. The response, admitted to be true, that Pure Oil Company has done everything required of it and has publicly promised to cease and desist from all that had been prohibited, makes it clear that there is no present need of enforcement and that no present case or controversy exists. It is not proper, nor within the power of this court, to command generally in the very words of the Act that the Pure Oil Company in the future shall not do what the Act forbids on pain of being in contempt of court. This is not the enforcement intended by the Act, but would tend to supersede the functions of the Board. If Pure Oil Company should do or threaten anything in the future contrary to the order, as limited by a reasonable construction, a case would arise for enforcement of it. If something new should be done contrary to the Act, the Board should investigate it and find the facts and make a further order, asking court aid to enforce it if it becomes necessary. I think this blanket injunction enforcement, without any present controversy is unlawful. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 , 57 S. Ct. 461 , 81 L.Ed. 617 , 108 A.L.R. 1000 ; Ashwander v. Tenn. Valley Authority, 297 U.S. 288, 324 , 56 S.Ct. 466 , 80 L.Ed. 688 ; Liberty Warehouse Co. v. Grannis, 273 U. S. 70 , 47 S.Ct. 282 , 71 L.Ed. 541 ; California v. San Pablo & T. R. Co., 149 U.S. 308, 314 , 13 S.Ct. 876 , 37 L.Ed. 747 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6877083. Public record. Not legal advice.