Colonie Fibre Co. v. National Labor Relations Board

CLARK, Circuit Judge

(dissenting in part).

I dissent from so much of the opinion and decision as denies enforcement to the portion of the Board’s order requiring the company to offer Blais reinstatement and to post a notice to that effect. This perhaps is a small matter; but the smaller it is, the more I am troubled that my brethren can discover grounds, or feel impelled, to interfere with the remedial action found necessary by the Board. For the evidence as to Blais’ lack of desire to resume work in the plant was before the Board, which limited its provision as to the payment of back wages to Blais accordingly. There seems nothing strange in a decision by the Board in the exercise of its discretion that the action of the employer, and particularly its notice to all the employees in the plant, must show a complete repudiation of the unfair labor practices found and a full remedy. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 189-195 , 61 S.Ct. 845 , 85 L.Ed. 1271 , 133 A.L.R. 1217 ; Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 704 , 64 S.Ct. 817 , 88 L.Ed. 1020 . An order making the omission without any explanation may well be so ambiguous to the workers as to be harmful — as the opinion substantially concedes by allowing the further modification. It is the Board’s duty to see that the statutory guaranty against discharge for union activity is carried out; its apparent failure to do so as to any individual will cause doubt and confusion unless it is clarified. But permission to include a detailed explanation as to Blais is at best doubtfully more effective than the Board’s own simpler plan. Further, the Board should be entitled to appraise the worth and meaning of the employee’s statement when drafting a quieting order for the plant. We should not, in the face of the Board’s contrary decision, decree the forfeiture of an unfairly dismissed employee’s right to reinstatement because of a hasty remark he made in the heat of trial. Such a scrutiny of the decision of an expert agency for small flyspecks seems to me the wrong type of judicial review, yielding constructive advantage to no one, but promoting confusion and doubt in the factory and as to the administration of the statute. Apparently we have enforced such orders in the past as a matter of course. Compare N.L.R.B. v. Volney Felt Mills, 2 Cir., 162 F.2d 204 , as entered June 25, 1947.