The opinion
*957 SOPER, Circuit Judge
(dissenting).
If we establish the policy of determining the facts for ourselves when an employer convicted of unfair labor practices is charged with violating our decree, we shall find it difficult to authorize the National Labor Relations Board to ascertain the circumstances and report its findings to us. When the Board in a given case has made findings of an interlocutory character, as when it orders an employer to make whole wrongfully discharged employees for loss of back pay without fixing the amounts, the situation is different. Then, as shown in Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177 , 61 S.Ct. 845 , 85 L.Ed. 1271 , 133 A.L.R. 1217 , and N. L. R. B. v. New York Merchandise Co., 2 Cir., 134 F.2d 949 , the administrative process is not complete. The enforcing decree is too indefinite to justify a contempt proceeding, and if negotiations of settlement fail, the case must be returned to the Board to finish its work.
This course, however, should not be taken with respect to an order of reinstatement approved by the court’s decree which, as in the case at bar, the employer has failed to obey. Such an order is final and leaves nothing for the Board’s determination. If the situation changes during the progress of the case through the courts, either party may apply for leave to take additional evidence. If this is not done and the decree is promulgated and dishonored by the employer, the court possesses and should exercise the authority to make its own determinations. Thus in Southport Petroleum Co. v. N. L. R. B., 315 U.S. 100 , 62 S.Ct. 452 , 86 L.Ed. 718 , it was held that an application for leave to take additional evidence with respect to a decree of reinstatement lay within the court’s discretion.
In the pending case, the Board seeks the opportunity to make the findings of fact for the court as to whether the employer has complied with the decree of reinstatement ; and these findings will be binding upon us whether we agree with them or not, if any substantial evidence supports them. In the past we have not infrequently been obliged to approve conclusions of the Board based upon findings of fact, with which we did not agree, because under the statute such findings are final and conclusive. In the present instance we are not obliged to extend this practice by remanding the case to the Board and ought not to do so, especially as it will empower the Board to pass upon the merits of the charge, which it is now prosecuting, that the employer has defied its authority.
We do not avoid this undesirable and unnecessary situation by the assertion that we are not referring to the determination of the Board the question as to whether the action of the employer with respect to reinstatement has been in accordance with our decree. It is too plain for argument that if the Board finds that the company had no reasonable excuse for failing to comply with the court’s decree, the foundation will be laid for a contempt proceeding which the court cannot ignore; and that if such an excuse is found, the employer will have been acquitted. In short, the Board and not the court will determine whether proper respect has been paid to the court’s decree.
The decisions do not require such a course. That of the Second Circuit in N. L. R. B. v. New York Merchandise Co., supra, is based, so far as reinstatement is concerned, on the assumption ( 134 F.2d at page 952 ) that an order of reinstatement is tentative only, and requires a further finding after the enforcing decree has been isi-sued as to whether the job is still open. Tt is submitted that this assumption is mistaken. On its face the decree is final; the job in a given business ordinarily persists,; and if the unusual happens, the way is open for either party to ask for further proceedings before the Board before the court’s decree is issued.
The cases in this circuit differ so materially in fact that they offer little or no help in solving the present problem. In Moores-ville Cotton Mills v. N. L. R. B., 4 Cir., 94 F.2d 61 , Id., 4 Cir., 97 F.2d 959 , and Id., 4 Cir., 110 F.2d 179 , the Board failed to pass upon certain evidence presented to it at the original hearing with respect to reinstatement of employees because it entertained the erroneous opinion that the evidence was immaterial. Hence we remanded the case in order that the Board might consider the evidence and make findings thereon. In *958 American Chain & Cable Co. v. Federal Trade Commission, 4 Cir., 142 F.2d 909 , a corporation which was subject to a decree enforcing a cease and desist order of the Federal Trade Commission asked the court to direct the Commission to consider a petition to stay the enforcement of the decree until after the war, because such action was recommended by the War and Navy Departments and .would be helpful to the war effort. The Commission. had declined to act because it doubted its authority to modify a decree of the court; but we directed the Commission to reopen the matter and' consider the Government’s request 'for a stay. Obviously the action of this court in directing the Board to consider the corporation’s request for a modification of the decree furnishes no precedent for allowing the Labor Board in the present case to take over our responsibility and decide whether the employer has violated the decree of this court.