Art Metals Const. Co. v. National Labor Relations Board

CLARK, Circuit Judge

(dissenting in part).

I am in entire accord with the opinion herewith except for that part which modifies the Board's order for the posting of notices that the employer “will cease and desist” from refusing to bargain collectively with Local No. 1559 of International Association of Machinists and from the other unfair labor practices stated. The point here is narrow, perhaps too narrow for extended disagreement, but, if so, likewise too narrow to justify our interference with the discretion given the Board in carrying out its peculiar and onerous statutory duties, particularly in the light of recent vigorous admonitions against undue court interference with administrative discretion. Federal Communications Commission v. Pottsville Broadcasting Co., 60 S.Ct. 437 , 84 L.Ed. -, January 29, 1940; National Labor Relations Board v. Waterman S. S. Corp., 60 S.Ct. 493 , 84 L.Ed. -, February 12, 1940. Indeed, I had supposed that the issue had been completely settled not only by our own decisions 1 and the now almost unanimous rulings of the other circuit courts of *153 appeals, 2 but also by the express holding of the Supreme Court in National Labor Relations Board v. Falk Corp., 60 S.Ct. 307, 312 , 84 L.Ed.-. January 2, 1940, restoring a similar cease and desist order of the Board which had been modified in the court below. 3 The Supreme Court said: “Knowledge on the part of the men that the company would cease and desist from hampering, interfering with and coercing them in selection of a bargaining agent, which the Board found the company had done successfully in the past, was essential if the employees were to feel free to exercise their rights without incurring the company’s disfavor.” And it went on to point out that the notices under the modifying order not only failed to assure the men that the company would cease its unlawful and coercive practices, but in effect told them that the Independent Union, while disestablished for the time being, was still available for selection by the employees; and thus the modified notices “neither reuounced the company’s unlawful practices nor promised their abandonment.” This reasoning is particularly pertinent here. For the employer freely concedes and actually stipulates the salient fact that at least by the time of the hearing the Union represented a majority of the production and maintenance workers in its Jamestown plant, and yet it has claimed continuously, even to this court, that it has not refused to bargain collectively with the Union.

If I could see in the Board’s order a striking down of dearly bought privileges sanctified by history, I should hasten to join in the repudiation of such an act. But I am not able so to see it. Rather does this appear to me as but a case where an employer, found by due process to have been violating the law of the land as to its employees, is directed to give proper assurances to those employees that it will change its ways. 4 And our modification here seems to me but permission to it to attempt to re *154 furbish a dignity already tarnished by its persistent refusal to reach that state of accord with its duly organized workmen which the law contemplates.

I think enforcement of all of the Board’s order should be directed.

National Labor Relations Board v. American Mfg. Co., 2 Cir., 106 F.2d 61 ; National Labor Relations Board v. National Licorice Co., 2 Cir., 104 F.2d 655 , certiorari granted 60 S.Ct. 108 , 84 L.Ed. —; National Labor Relations Board v. Hopwood Retinning Co., 2 Cir., 98 F.2d 97 ; Id., 2 Cir., 104 F.2d 302 ; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 217, 231 , 59 S.Ct. 206 , 83 L.Ed. 126 ; Id., 2 Cir., 95 F.2d 390 ; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 874, 875 , certiorari denied 304 U.S. 576 , 585, 590, 58 S.Ct. 1046 , 82 L.Ed. 1540 .

National Labor Relations Board v. H. E. Fletcher Co., 1 Cir., 108 F.2d 459 ; National Labor Relations Board v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167 ; National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713, 724 ; National Labor Relations Board v. Asheville Hosiery Co., 4 Cir., 108 F.2d 288 ; National Labor Relations Board v. Brown Paper Mill Co., Inc., 5 Cir., 108 F.2d 867 ; National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179 ; National Labor Relations Board v. Boss Mfg. Co., 7 Cir., 107 F.2d 574, 579 ; and cf. also note 3, below; Cudahy Packing Co. v. National Labor Relations Board, 8 Cir., 102 F.2d 745 , certiorari denied 60 S.Ct. 78 , 84 L.Ed.-— ; National Labor Relations Board v. National Motor Bearing Co., 9 Cir., 105 F.2d 652 ; contra, Swift & Co. v. National Labor Relations Board, 10 Cir., 106 F.2d 87, 94 . Compare also the many cases where the order is entered without objection, as in the ten cases in 102 F.2d 998 -1007.

Possibly, as is suggested, the cited decisions from the Fourth and Sixth Circuits do not overrule the earlier decisions cited in the opinion. But it cannot be without significance that these courts have now enforced these orders without question. Moreover, the Fourth Circuit had already departed from its earlier position to the extent of requiring the employer to post a copy of the Board’s order, together with fiotices that the order had been approved by the court and was binding on tho employer and that “the employer will abide by and comply with it.” National Labor Relations Board v. Eagle Mfg. Co., 4 Cir., 99 F.2d 930, 932 ; Virginia Ferry Corp. v. National Labor Relations Board, 4 Cir., 101 F.2d 103, 106 .

The original order below appears in 7 Cir., 102 F.2d 383 , the modifying order in 106 F.2d 454 . The point had been raised before the Supreme Court and tho Board’s order affirmed without discussion in National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 70, 772 , 57 S.Ct. 645, 630 , 81 L.Ed. 921 ; see, also, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 22, 49 , 57 S.Ct. 615 , 81 L.Ed. 893 , 108 A.L.R. 1352 ; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 263, 264, 268, 271 , 58 S.Ct. 571 , 82 L.Ed. 831 , 115 A.L.R. 307 ; and Consolidated Edison Co. v. National Labor Relations Board, note 1, above.

Since words arc but counters to convoy thought, some other form of expression might perhaps be devised to express this idea to the workmen, but no other statement both direct and precise has yet been suggested. Even that safeguard required by the Fourth Circuit in cases such as National Labor Relations Board v. Eagle Mfg. Co., note 2, above, that there be posted the full order approved by the court and the employer’s agree *154 ment to comply with it, is omitted from our modification herein. Perhaps some such formula as that the employer “will cease and desist from those activities found by the Board to be unfair labor practices” might suffice.