National Labor Relations Board v. Deena Artware, Incorporated

STEWART, Circuit Judge

(dissenting).

The denial of the present motion for discovery seriously impairs the effectiveness of the Board as the agency primarily responsible for the administration of the National Labor Relations Act. The alternatives now left to the Board appear to be neither desirable nor practical.

It is suggested by the majority that the motion might be proper if the Board should institute contempt proceedings against the respondent. But, if the Board is denied access to the respondent’s records, it will probably be impossible to determine before such proceedings are begun whether the enforcement order of this court is actually being flaunted so as to warrant the charge of contempt.

In N.L.R.B. v. Deena Artware, Inc., 6 Cir., 207 F.2d 798, 802 , this court said, “It will be time enough to rule on any question of contempt when the order to pay becomes liquidated and final. If, at that time, any financial inability on the part of the respondent to pay the awards is shown to be the result of improper actions on its part in the meantime, appropriate contempt action can then be taken.” The back-pay awards having now become liquidated and final, it seems to me that in conformity with these words of the court’s previous opinion the Board should now be given an opportunity to ascertain before bringing contempt proceedings whether the respondent has in fact been guilty of the improper actions alleged. N.L.R.B. v. Dixon, 8 Cir., 1951, 189 F.2d 38 . That would appear preferable to requiring the Board to bring a contempt action, and only then allowing it to determine whether the facts show probable cause.

But it is with the alternative suggestion of my brothers that I have a more basic difficulty — the suggestion that the Board proceed in a trial court as an ordinary judgment creditor. My difficulty stems from a fundamental difference in our concepts as to the nature of the jurisdiction conferred upon this court by Section 10(e) of the National Labor Relations Act, 29 U.S.C.A., § 160 (e). It is of course true, as the majority opinion points out, that an appellate court does not customarily retain jurisdiction of a case in order to insure that its judgment will be carried out by the litigants. That function is ordinarily performed by the nisi prius court from which the appeal came, since that court possesses power to compel obedience to a judgment.

But in exercising the statutory jurisdiction conferred upon it by Section 10 (e) of the Act, this court does not serve as an appellate court. In a very real sense, the jurisdiction conferred by that section is original jurisdiction. Certainly it is original (and exclusive) judicial jurisdiction. No power to enforce an order is conferred upon the Board itself, nor upon courts generally. Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 48-49 , 58 S.Ct. 459 , 82 L.Ed. 638 . To what court is it contemplated that the Board should now turn?

Even if the Board could properly now institute a trial court proceeding, the object of such a proceeding could only be the effectuation of the enforcement decree of this court. The effectuation of that decree is the proper business of this court alone. Whether or not the *188 Board is called a judgment creditor of the respondent, any action taken in a trial court would stem solely from the enforcement decree of this court, whose function it is to retain jurisdiction to administer all necessary further relief. See N.L.R.B. v. Sunshine Mining Co., 9 Cir., 1942, 125 F.2d 757, 760-761 ; cf. N.L.R.B. v. Underwood Machinery Co., 1 Cir., 1952, 198 F.2d 93 .

Nathanson v. N.L.R.B., 1952, 344 U.S. 25 , 73 S.Ct. 80, 83 , 97 L.Ed. 23 , does not seem to me to imply a contrary conclusion. There the Board was permitted to prove an enforced back-pay award as a claim in the employer’s bankruptcy proceeding. It is true that the Court spoke of the bankruptcy action as a “contest * * * between various classes of creditors,” including the Board, but that case does not go so far as to hold that the Board is to be treated as an ordinary judgment creditor whenever it attempts to effectuate an enforcement decree. Moreover, there is no contest between creditors here. The controversy is solely between the respondent and the Board. ‘Thus the motion for discovery is not merely an attempt by one judgment creditor to determine whether he is being defrauded by an illusory transfer of assets; it is, rather, an attempt by the Board to determine the sole remaining issue in dispute — whether the respondent’s failure to comply with the decree of this court was occasioned by genuine financial inability.

My colleagues suggest that if the Board itself is unable to institute an action for the collection of back-pay awards, the courts would be open to the individual claimants to secure enforcement of their awards. This suggestion seems completely at odds with the decisions cited in the majority opinion which hold that the Act does not create a private right of action. A private party has no standing either to institute proceedings to enforce an order of the Board or to secure implementation of a Board order which has been upheld by a court of appeals. Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co., 1940, 309 U.S. 261 , 60 S.Ct. 561 , 84 L.Ed. 738 ; National Licorice Co. v. N.L.R.B., 1940, 309 U.S. 350, 362 , 60 S.Ct. 569 , 84 L.Ed. 799 ; see also Stewart Die Casting Corp. v. N.L.R.B., 7 Cir., 1942, 132 F.2d 801 .

Finally, today’s order seems to me inconsistent with the recent order of this court in N.L.R.B. v. Parsons Punch Corp., 6 Cir., 249 F.2d 956 . While it is true that the Board initiated contempt proceedings in the Parsons case, we held those proceedings in abeyance to give the Board an opportunity, by way of the discovery procedure there ordered, to determine whether the respondent in that case was in fact guilty of substantially the same kind of conduct as that alleged here.

I would grant the motion.