The opinion
On Petition for Rehearing in No. 7482 February 14, 1941
PER CURIAM.
The National Labor Relations Board, respondent, has filed a petition for rehearing on the sole ground that we committed error in eliminating paragraph 1 (c) of the order, which reads as follows:
1. Cease and desist from:
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(c) In any manner interfering with, restraining, or coercing their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the" purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157 .
Having sustained parts of the order directed specifically against practices found upon substantial evidence to exist, we struck this paragraph on the ground that there was no evidence of any other restraints or coercion to support its terms. Upon reconsideration, the original majority of the court are still of the opinion that it is wholly illogical to order an employer in general terms to “cease and desist” from conduct not shown ever to have been engaged in.
But in the Edison and Fansteel cases 1 the Supreme Court — in the opinion of two judges of this court 2 — appears to have approved the inclusion of the paragraph in every order where the employer is held to have violated any provision of the Act. In deference thereto, we feel in duty' bound to reinstate the quoted language, and it is so ordered.
As this conclusion disposes of the only question raised by the petition, a rehearing is denied.
Supplemental Opinion in No. 7482 March 24, 1941
GRONER, C. J.
In its original order in this case, the Board included paragraph 1 (c) — a broad, catch-all provision — expressed in the identi *955 cal language which was set aside and modified in Labor Board v. Express Publishing Co., 312 U.S. -, 61 S.Ct. 693 , 85 L.Ed. -, decided March 3, 1941. This court at first set the paragraph aside as not sustained by the facts. Then on petition of the Board, this court, Judge Stephens disagreeing, reinstated it on the authority of Labor Board v. Fansteel Corp., 306 U.S. 240 , 59 S.Ct. 490 , 83 L.Ed. 627 , 123 A.L.R. 599 , and Consolidated Edison Co. v. Labor Board, 305 U.S. 197 , 59 S.Ct. 206 , 83 L.Ed. 126 .
In t'he Express Publishing case, the Supreme Court held that such broad language is not proper in all cases, and modified it severely, on the ground that the Board’s finding was limited to one isolated unfair labor practice and that this was no reason to order the employer to cease and desist from all violations of the Act. In distinguishing the Fansteel case (no reference was made to Consolidated Edison), the Court said the record there “disclosed persistent attempts by varying methods to interfere with the right of self-organization in circumstances from which the Board or the court found or could have found the threat of continuing and varying efforts to attain the same end in the future.” [312 U.S. —, 61 S.Ct. 700 , 85 L.Ed. —.]
Upon this court’s request, the parties have filed memoranda .on the pertinence of this decision to the present case. Petitioner says that the Supreme Court has rejected all of the Board’s arguments advanced in its petition for modification in the present case and that the paragraph should again be stricken. Petitioner also says the form of notice, which the order requires it to post, should be modified so as to eliminate any implication of a confessed violation of the Act. Accordingly, petitioner prays the court to make these modifications and asks leave to file its petition to this end.
The Board consents to the modification of the form of notice, but argues that the Supreme Court’s decision on the catch-all clause in the order is limited to its own facts, that this is a case showing persistent attempts to evade the act», and that the paragraph should remain as it stands.
In view of the Board’s consent the form of notice will be modified as requested, but in regard to paragraph 1 (c), both arguments seem to go too far. The Supreme Court did not simply strike out the paragraph in the Express Publishing Co. case, but modified it to restrain related conduct of the general nature found to have been engaged in. On the other hand, the Supreme Court’s opinion is not limited to one narrow set of facts, but expresses a broad principle.
“ * * * It is obvious that the order of the Board, which when judicially confirmed, the courts may be called on to enforce by contempt proceedings, must, like the injunction order of a court, state with reasonable specificity the acts which the respondent is to do-or refrain from doing. It would seem equally clear that the authority conferred on the Board to restrain the practice which it has found the employer to have committed is not an authority to restrain generally all other unlawful practices which it has neither found to have been pursued nor persuasively to be related’ to the proven unlawful conduct.
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“It is a salutary principle that when one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts. But we’ think that without sacrifice of that principle, the National Labor Relations Act does not contemplate that an employer who has unlawfully refused to bargain with his employees shall for the indefinite future, conduct his labor relations at the peril of a summons, for contempt on the Board’s allegation, for example, that he has discriminated against a labor union in the discharge of an employee, or because his supervisory employees have advised other employees not to join a union. Jjí
“The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have-been committed by the employer in the past. * * * We hold only that the National Labor Relations Act does not give the Board an authority, which courts cannot rightly exercise, to enjoin violations of all the provisions of the statute merely because the violation of one has been found. To justify an order restraining other violations it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past. *956 That justification is lacking here. To require it is no more onerous or embarrassing to the Board than to a court. And since we are in a field where subtleties of conduct may play no small part, it is appropriate to add that an order of the Board, like the injunction of a court, is not to be evaded by indirections or formal observances which in fact defy it. After an order to bargain collectively in good faith, for example, discriminatory discharge of union members may so affect the bargaining process as to establish a violation of the order.”
In the present case there were no “persistent attempts by varying methods to interfere with the right of self-organization”, as in the Fansteel case which the Supreme Court distinguishes. In that case (S N.L.R.B. 930), the employer did all sorts of things — refused to bargain, tried to influence employees to drop their chosen union, formed and dominated a company union, and then discharged men for union activity, put the officers of the chosen union in isolated positions, etc. Here, the remarks of Lewis, to which the Board refers, were expressly held to be not coercive or in violation of the Act, but only isolated instances of a man expressing his opinion. There remain only the acts of surveillance and the act of discriminating against certain individual employees in selecting them for discharge because of union affiliation. The conduct forbidden is interfering with the administration of the Guild and discriminating against employees in regard to tenure of employment because of their membership in the Guild, and this does not include in its scope domination of a union, discharge or discrimination because of filing charges or giving testimony, and refusal to bargain collectively, practices denounced by subdivisions (2), (4), and (5) of Section 8. The paragraph 1 (c) should be modified, in accordance with the principle of the Express Publishing case, as follows: (c) In any manner interfering with the administration of the Guild or its membership. •
Paragraph 2 (c) will be modified by striking from it the words: “will cease and desist as provided in paragraphs 1 (a) and (b)”, and substituting for them the words: . “will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c).”
The order in its final form will read as follows:
“Order
Upon the basis of the foregoing findings of facts and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act [ 29 U.S.C.A. § 160 (c)], the National Labor Relations Board hereby orders that the respondent The Press Co., Inc., and its officers, agents, successors and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in the Tri-City Newspaper Guild of Albany, Troy, and Schenectady, New York, or any .other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment;
(b) In any manner exercising surveillance over the meetings or meeting places ‘of.the Tri-City Newspaper Guild or the union activities of its employees;
(c) In any manner interfering with the administration of the Guild or its membership.
2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:
(a) Offer to Austin J. Scannell, John Wanhope, and Henry E. Christman immediate and full reinstatement to their former or substantially equivalent positions prior to respondent’s discrimination against them without prejudice to their seniority and other rights and privileges;
(b) Make whole Austin J. Scannell, John Wanhope, and Henry E. Christman, for any loss of pay they may have suffered by reason of their discharge by payment to each of them, respectively, of a sum of money equal to that which he would have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, less his net earnings and less any severance pay which might have been given to him; deducting also from the amount otherwise due him moneys received by him during said period for work performed upon Federal, State, county, municipal or other work-relief projects;
(c) Post immediately in conspicuous places in the editorial department of the respondent’s Albany plant, a notice stating(l) that the respondent will not engage in the conduct from which it is ordered to cease *957 and desist in paragraphs 1 (a), (b), and (c) of this order; (2) that employees are free to remain or become members of the TriCity Newspaper Guild of Albany, Troy, and Schenectady, New York, and that the respondent will not discriminate against any employee because of such membership; (3) maintain such notices for a period of at least sixty (60) days from the date of posting;
(d) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.
And it is further ordered that the allegations of the complaint that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act [ 29 U.S.C.A. § 158 (3)] with respect to Richard Jacksonj John Andrews, Raymond H. Mowers and Jo Leonard be, and they hereby are, dismissed.”
The decree of this court will be amended to conform, and it is so ordered.
Edison Co. v. Labor Board, 305 U.S. 197, 231 , 59 S.Ct. 206 , 83 L.Ed. 126 . Labor Board v. Fansteel Corp., 306 U.S. 240, 262 , 59 S.Ct. 490 , 83 L.Ed. 627 , 123 A.L.R. 599 .
Judge STEPHENS thinks that the paragraph ought not be contained in the order for the reason that it assumes to restrain acts of a type not shown to have-been committed by the employer. He-thinks that neither Edison v. Labor Board nor Labor Board v. Fansteel' Corp. constitutes any ruling on the subject.