# National Labor Relations Board v. Pease Oil Company > Court of Appeals for the Second Circuit · May 26, 1960 · 279 F.2d 135 URL: https://www.frixlaw.com/law-library/cases/9447382 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEASE OIL COMPANY, Respondent - **Court:** Court of Appeals for the Second Circuit - **Decided:** May 26, 1960 - **Citations:** 279 F.2d 135; 46 L.R.R.M. (BNA) 2286; 1960 U.S. App. LEXIS 4471 - **Precedential status:** Published - **Opinion:** Dissent by Madden - **Judges:** Madden, Medina, Waterman, Claims - **Cited by:** 16 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/9447382 ## How later opinions describe it (automated extraction) - noting that such a standard is discretionary and not co-extensive with the Board’s statutory power ## Opinion text MADDEN, Judge (dissenting). The Labor Board’s practice of announcing, from time to time, standards based on dollar volume of business, type of business and other qualifications has given rise to problems almost unique. The Act confers jurisdiction in cases of unfair labor practices affecting interstate commerce. It was early decided that the volume of the commerce was immaterial, so long as it exceeded that to which the courts would apply the maxim de minimis. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607 , 59 S.Ct. 668 , 83 L.Ed. 1014 . From the beginning the Board, for budgetary or other reasons, has not exercised all the jurisdiction which the Act conferred up *140 on it. It was an embarrassment to the Board, and to its local agents in the field, to justify to persons claiming to be the victims of unfair practices, the Board’s inaction in cases in which it undoubtedly had the power to act. The Act, after defining the unfair labor practices to which the Act applies says, in section 10(a), 29 U.S.C.A. § 160 (a), “The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice * * * affecting commerce * * * ” The courts have held that the Board has wide discretion as to whether or not to proceed with or award a remedy even in cases which fall within the statutory jurisdiction of the Board. “It is not required by the statute to move on every charge; it is merely enabled to do so.” National Labor Relations Board v. Indiana and Michigan Electric Co., 318 U.S. 9, 18 , 63 S.Ct. 394, 400 , 87 L.Ed. 579 . See also National Labor Relations Board v. Denver Building & Const. Trades Council, 341 U.S. 675, 684 , 71 S.Ct. 943 , 95 L.Ed. 1284 ; Haleston Drug Stores v. National Labor Relations Board, 9 Cir., 187 F.2d 418, 421 , certiorari denied 342 U.S. 815 , 72 S.Ct. 29 , 96 L.Ed. 616 . The discretion is not unlimited, and has been held to have been arbitrarily exercised in Office Employees International Union, etc. v. National Labor Relations Board, 353 U.S. 313 , 77 S.Ct. 799 , 1 L.Ed.2d 846 ; Hotel Employees Local No. 255 v. Leedom, 358 U.S. 99 , 79 S.Ct. 150 , 3 L.Ed.2d 143 . As illustrated by the instant case, the Board, after many years of proceeding without announcement of the standards which it, in practice, used in determining whether to proceed with cases, adopted the policy of announcing defined standards. In the instant case, as we have seen, the announced standards were based upon dollar volume of business. Such announcements would have the effect, and to a degree, the purpose, of advising the public that unless those standards were satisfied, the victim of unfair labor practices by employers or unions could not look to the Board for relief. The instant case presents the question whether, a certain standard having been announced, and an employer having acted upon the assumption that it would be adhered to, he may be brought to book on the basis of a wholly different standard later announced, which later standard is well within the jurisdiction conferred upon the Board by the statute. The Board itself, in C. A. Braukman, etc. and International Union of Operating Engineers, 94 N.L.R.B. 234 , dealt with the same problem. It refused to apply its revised standards retroactively to an enterprise which, at the time of the commission of the unfair labor practices, did not satisfy the Board’s then applicable standards. It said: “The Board believes that the question should be answered in the negative. This result is dictated not only by the Board’s obligation to respect its own prior decisions, but also by a desire for fair play. It would be inequitable now to hold the Respondent liable for the activities in question, as the Board, almost two years ago, in effect advised the Respondent that such activities occurred at a time when ‘it would [not] effectuate policies of the Act to assert jurisdiction’ over the Respondent’s operations.” By the time the Board reached the instant case, it had changed its view and had decided and announced in Siemons Mailing Service, 122 N.L.R.B. 13 , that it would apply its revised jurisdictional standards in all future and pending cases. And it did so apply them in the instant case. I think that the Board’s language in its Braukman case, supra, was an excellent expression of the standard of conduct which the Government and its agencies should observe toward the public. The question is essentially one of fair play. The Board has, as the statute authorized it to do, petitioned this Court for a decree enforcing the Board’s order. A Court of Appeals, in determining whether or not such a decree should be issued, sits as a Court of Equity, and *141 will not exercise the power of such a court to produce a result which it regards as essentially unfair. The respondent’s conduct in this case was not malum in se. Such conduct was completely lawful and was widely practiced up to the time of the enactment of the National Labor Relations Act in 1935. When the Board, in order to achieve what it regarded as a more effective administration of the Act, advised the public that the Act would not be applied by it to certain defined situations, it must have known that such an announcement would result in conduct in reliance on the announcement. In my opinion it was essentially unfair for the Board to retroactively repudiate its prior announcement. Judge Pope, for the Court of Appeals for the Ninth Circuit, in the case of National Labor Relations Board v. Guy F. Atkinson Company, 195 F.2d 141 , discussed the problem fully and ably and reached the conclusion which I would reach. The instant opinion says that Atkinson appears to have been overruled sub silentio. That conclusion may be justified. The problem, as the instant opinion shows, has been much litigated, and has been presented to the courts in a great variety of aspects, each with its own appeal to the Court’s sense of fairness. It seems to me that, in the instant case, the problem is in its simplest and most readily soluble form. The Labor Board formally announces a renunciation of the exercise of a part of the jurisdiction which the statute gives it. It does ■so for the public good, for the purpose of better administering the remainder of its jurisdiction. It thereby leads employers, including the instant employer, to think that they may do what they and their betters had always done with impunity until recent times. When the employer acts upon the Board’s announcement, the Board repudiates the announcement, asserts its jurisdiction and penalizes the employer. I think an agency of the Government should not act like that. I think its standard of fair play should be higher than that. I think the Board’s former practice of limiting its activities without committing itself by the announcement of standards had in it an undesirable element of government by men and not by law. But I think the instant action of formally announcing a standard and then repudiating it adds an equally undesirable element, which, unlike the former one, is quite unnecessary, since it could be avoided by merely refraining from making retroactive announcements. As to the hardship of leaving the discharged employees without relief, they are left only in the situation in which all the discharged employees of all of the employers over whom the Board might have, but has not and does not assert jurisdiction, find themselves. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9447382. Public record. Not legal advice.