118 F.2d 893 (9th Cir. 1941), 9209, N.L.R.B. v. Sterling Electric Motors, Inc.

Docket Nº:9209.
Citation:118 F.2d 893
Case Date:March 14, 1941
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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118 F.2d 893 (9th Cir. 1941)




No. 9209.

United States Court of Appeals, Ninth Circuit.

March 14, 1941

Concurring Opinion March 15, 1941.

Where Board upon a further hearing asked to have set aside its own order requiring employer to cease and desist from certain practices and to take certain affirmative action, Court accepted Board's recommendation and set its order aside.

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Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Asst. Gen. Counsel, National Labor Relations Board, all of Washington, D.C., for petitioner.

Hardy & Horwin, Leonard Horwin, and Jack W. Hardy, all of Los Angeles, Cal., for respondent.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.


On June 19, 1939, the National Labor Relations Board petitioned this court to decree the enforcement of the Board's order of July 9, 1938, requiring respondent, Sterling Electric Motors Inc., to cease and desist from certain practices and to take certain affirmative action. Answering, respondent prayed that the order be set aside. We heard the case and, on January 9, 1940, entered a decree setting the order aside. 9 Cir., 109 F.2d 194.

On March 9, 1940, this decree was set aside and the Board petitioned for and was granted a rehearing. At the rehearing, respondent applied for and, on April 22, 1940, was granted leave to adduce additional evidence, to be taken by the Board. Thereafter, on May 6, 1940, prior to the taking of such additional evidence, we entered a decree setting aside the Board's order in part and, as to the remainder thereof reserving our decision. 9 Cir., 112 F.2d 63.

The board petitioned the Supreme Court for a writ of certiorari. While that petition was pending we vacated and set aside our decree of May 6, 1904. 9 Cir., 114 F.2d 738. Thereupon the Board filed in the Supreme Court a motion for leave to file a petition for writs of mandamus and prohibition. On October 28, 1940, the motion was denied and the petition for writ of certiorari was dismissed. 311 U.S.--, 61 S.Ct. 67, 85 L.ed.--, 311 U.S.--, 61 S.Ct. 69, 85 L.Ed.-- .

On February 20, 1941, the Board filed in this court additional evidence taken before the Board pursuant to our order of April 22, 1940, new findings thereupon made by the Board, and the Board's recommendation that its order of July 9, 1938 be set aside.

Recommendation accepted and decree entered accordingly.

DENMAN, Circuit Judge, concurring.

My brethren are of the opinion that where such an administrative body as the National Labor Relations Board, upon a further hearing on matters recommitted to it, decides there is no ground to sustain its charges of employer domination of a union or of other unfair labor practices, and asks to have set aside its own orders, including one destroying an absent union's right of collective bargaining, that is an adequate reason for a decree granting its request. I am in agreement with this, but prefer to concur on the additional ground of the lack of jurisdiction in personam over the Association for an order disestablishing it and depriving it of its right of collective bargaining.

As we have stated (9 Cir., 112 F.2d 63, 68) we cannot be blind to the tragedy of the destruction of the democracies of Western Europe nor can we now ignore the fact that we are entering a long period when, in the stress of defense of our own, our citizens will feel constrained to submit voluntarily to an emergency exercise of an administrative absolutism abhorrent in peace time. When that long period is passed, our tribunals exercising such powers will be reluctant to yield them. They will point to their exercise by the Labor Board before the emergency and to the Pennsylvania Greyhound case (National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307) as authority for their continuance.

Throughout the instant proceeding the Board has insisted that it has such absolute power to destroy a union's right of collective bargaining, though not served or appearing, and that, in cases it has brought, it has fixed such absolute power as part of our widely extending administrative law. 1 Because of this, the following considerations seem pertinent to the Board's contentions.

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In our decision of this week (March 11, 1941) in National Labor Relations Board v. Ferguson, 9 Cir., 118 F.2d 892, 2 we have held that in a proceeding in which the Board is prosecutor, and the employer is the sole respondent, and the labor organization absent, we cannot so destroy the latter's right to collective bargaining. In that decision we rely upon the principles stated in our decisions in this proceeding, National Labor Relations Board v. Sterling Electric Motors, Inc., 9 Cir., 109 F.2d 194; Id., 9 Cir., 112 F.2d 63, 64; Id., 9 Cir., 114 F.2d 738.

Our opinions rest on the thesis that the primary purpose of the act and the primary function of the Board is the protection of the public's interest, as well as the union's, in the latter's right of collective bargaining with its employer. This is clearly established by the...

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