dismissing enforcement action because “widespread personnel changes in the plant have made the [bargaining] order unnecessary”
How later courts described this case
- dismissing enforcement action because “widespread personnel changes in the plant have made the [bargaining] order unnecessary”
- refusing enforcement because it was “both unnecessary and obsolete”
- enforcement inappropriate when "there is no reasonable expectation that the wrong will be repeated in the future"
Written by the judges who cited it.
The opinion
BUTZNER, Senior Circuit Judge,
dissenting:
On January 4, 1985, the Regional Director wrote the following letter to the Greensboro News Company:
The Respondent [Greensboro News], having satisfactorily complied with the affirmative requirements of the Order [entered in 1984] in the above-numbered cases, and the undersigned having determined that Respondent is also in compliance with the negative provisions of the Order, the files in these matters are hereby closed, and will be continued as closed cases so long as the present status of compliance continues.
In accordance with the assurances expressed in the letter, the NLRB did not seek to enforce its order while compliance continued.
Following its initial compliance, however, the company engaged in conduct that caused the General Counsel to issue complaints on March 12, 1987, and July 21, 1987. The first complaint alleges that the company violated section 8(a)(1), (3), and (4) of the Act by issuing warnings to Roberts, the same employee who is involved in the case presently before us, because of his union activities and because he cooperated with the Board. The complaint also charges that the company restricted the movements of its employees because of their union activities. The second complaint alleges that the company violated section 8(a)(3) and (1) of the Act by discharging an employee because of his union activities and section 8(a)(5) and (1) by refusing to bargain. The allegations of both *800 complaints describe conduct that does not comply with the cease and desist order entered in 1984.
After the General Counsel issued the first 1987 complaint, the Board sought enforcement of its 1984 order. The company responded that the case is moot. In its brief it framed the issue, which the parties have addressed, in these terms:
Whether enforcement of the National Labor Relations Board’s order should be denied as the issues underlying this controversy are now moot.
The company does not contend, nor in my opinion could it, that if the case is not moot it should nevertheless prevail on this issue.
The Board relied on sound'precedent to support its petition for enforcement. In NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563, 567-68 , 70 S.Ct. 826, 828-29 , 94 L.Ed. 1067 (1950), the Court said:
We think it plain from the cases that the employer’s compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court_ A Board order imposes a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree.... The Act does not require the Board to play hide-and-seek with those guilty of unfair labor practices.
The facts in Mexia differ from those in the instant case, but the principles the Court announced are not narrowly confined to similar factual patterns. This is illustrated by NLRB v. Raytheon Co., 398 U.S. 25, 27 , 90 S.Ct. 1547, 1548 , 26 L.Ed.2d 21 (1970). There the Court, quoting the extract from Mexia that is set forth above, applied the principles explained in the quotation to facts different from those in Mexia.
To be sure, Raytheon recognizes that a court may deny enforcement when the case is moot. 398 U.S. at 27 , 90 S.Ct. at 1548 (dictum); see also NLRB v. Fourco Glass Co., 646 F.2d 863 (4th Cir.1981). But this case is not moot. Compliance with the Board’s order “does not render the cause moot_” Mexia, 339 U.S. at 567 , 70 S.Ct. at 828 .
The Board’s policy of deferral, exemplified by the Regional Director’s letter of January 4, 1985, has obvious advantages for employers, employees, unions, and the Board. I am loathe to disapprove it by denying deferred enforcement. The perception that its policy is ineffective in this circuit may prompt the Board to seek enforcement regardless of compliance with the attendant inconvenience and expense that litigation imposes.
Section 10(e) of the Act, 29 U.S.C. § 160 (e), which authorizes the Board to seek enforcement of its orders and confers jurisdiction on the courts of appeals, contains no statute of limitations or provision for laches. I would not, certainly not in the circumstances presented by this case, engraft these defenses on the Act. Instead, I would adhere to section 10(e) and consider the substance of the Board’s petition and the company’s other defenses.