Opinion

National Labor Relations Boad v. Enterprise Ass'n of Steam

  • 285 F.2d 642
Court
Court of Appeals for the Second Circuit
Filed
Nov 25, 1960
Status
Published
On the bench
Hincks
Cited by
10 cases
Authority
More cited than 16.8%

The opinion

On Petition for Rehearing

PER CURIAM.

Since the respondents did not except to the breadth of the order recommended by the Trial Examiner, the order adopted by the Board should not not have been modified because of its breadth. In providing for enforcement petitions by the Board to the courts of appeal, Congress expressly limited the scope of judicial review. It cautioned: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” Sec. 10 (e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160 (e). In cases involving the breadth of orders of the Board, this limitation was recognized by this court in N. L. R. B. v. Steel, etc., Fabricators, & Warehousemen, Local 810, Int’l Bhd. of Teamsters, 253 F. 2d 832, 834 , and in Precision Fabricators v. N. L. R. B., 204 F.2d 567 , and indeed, is required by N. L. R. B. v. District 50, United Mine Workers of America, 355 U.S. 453 , 78 S.Ct. 386 , 2 L.Ed.2d 401 . The decision in Communications Workers v. N. L. R. B., 362 U.S. 479 , 80 S.Ct. 838 , 4 L.Ed.2d 896 , is not to the contrary. It does not there appear that the breadth of the order which the court narrowed had not been objected to before the Board and the brief, unanimous, Per Curiam opinion contains nothing to suggest that the court intended to overrule its recent holding in N. L. R. B. v. District 50, United Mine Workers of America, supra, also a unanimous decision.

*647 We note that in N. L. R. B. v. Ochoa Fertilizer Corporation, 1 Cir., 283 F.2d 26 , and N. L. R. B. v. Brandman Iron Co., 6 Cir., 281 F.2d 797 , those courts assumed to narrow orders not objected to before the Board. But those cases seem not to reconcile the action taken with the jurisdictional limitation of Sec. 10 (e) or with the Supreme Court decision cited above. We will therefore adhere to our earlier decisions.

Accordingly, the last paragraph of our opinion of November 25, 1960 is withdrawn and the order will be enforced without modification.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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