International Union, UA, A. & A. Imp. Wkrs. v. NLRB

Decision Date19 March 1971
Docket Number24715.,No. 24577,24577
Citation449 F.2d 1046
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John Silard, Washington, D. C., with whom Messrs. Joseph L. Rauh, Jr., Washington, D. C., and Stephen I. Schlossberg, Detroit, Mich., were on the motion for summary reversal by petitioner in number 24,577.

Mr. Warren M. Davison, Washington, D. C., with whom Mr. Marcel Mallet-Prevost, Assistant General Counsel, was on the motion for temporary relief by respondent in number 24,715, and on respondent's opposition to the motion for summary reversal in number 24,577.

Mr. Stanley R. Strauss, Washington, D. C., with whom Mr. Kenneth C. McGuiness, Washington, D. C., was on petitioner's opposition to the motion for temporary relief in number 24,715.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.


These two cases, consolidated on appeal, concern a National Labor Relations Board NLRB order directing Ex-Cell-O Corporation to bargain collectively with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW).

Having found the Ex-Cell-O plant in Elwood, Indiana to be an appropriate unit for purposes of collective bargaining, the NLRB conducted an election there in October 1964; employees chose the Union as their collective bargaining representative. Ex-Cell-O contested the election in administrative proceedings which included a full trial before a Hearing Officer; the Board ultimately certified the Union as representative in October 1965.1 Ex-Cell-O, seeking to obtain judicial review of the certification, refused to bargain with the Union.2 The Board initiated an unfair labor practice proceeding against Ex-Cell-O,3 and in August 1970 adopted the Trial Examiner's decision of March 1967 ordering Ex-Cell-O to bargain with the Union; however, the Board did not adopt that part of the Examiner's decision granting the Union's request for special compensatory benefits as a "make-whole" remedy for the period when Ex-Cell-O refused to bargain with the Union even after it was certified.4

In case No. 24,577, the Union's petition for review of the NLRB's decision not to award special compensation, the Union has moved for summary reversal, relying on our Tiidee Products — I decision.5 In case No. 24,715 (transferred to us from the Sixth Circuit), Ex-Cell-O seeks to set aside the order directing it to bargain, and the Board — proceeding under § 10(e) of the Act6 — has cross-applied for enforcement of its order against Ex-Cell-O, and in addition, has moved for temporary relief in the form of an order requiring Ex-Cell-O to bargain during the pendency of this litigation. We grant the motion for summary reversal and deny the motion for temporary relief.

The Union's Motion for Summary Reversal in No. 24,577

In Tiidee Products — I, supra note 5, this Court determined that the NLRB has power to award "make-whole" compensation for the period of an unlawful refusal to bargain under § 10(c) of the Act, which requires the Board "to take such affirmative action * * * as will effectuate the policies" of the Act.7 The opinion noted that even after a bargaining representative is certified, an employer may refuse to bargain in order to avoid collective bargaining or to secure judicial review of the certification, and the obligation to bargain collectively may not be finally enforced until an unfair labor practice proceeding results in an order to bargain and an enforcement proceeding in the courts.8 Emphasizing both the crucial importance to the statutory scheme of enforcing the obligation to bargain collectively and the need to avoid encouragement of frivolous litigation before both the Board and the reviewing courts by allowing employers to benefit from delay, this Court found that the "broad command" of § 10(c) authorizes the Board to award unions compensatory relief for harm caused by employers' manifestly unjustified refusals to bargain.

In the Ex-Cell-O case now before us, a divided Board indicated that our Tiidee Products — I decision was unsound, and maintained, contrary to our decision, that it had no power to grant "make-whole" compensation absent an amendment to the Act.9 The Board thought that such an award would compel contractual agreement in contravention of § 8(d),10 constitute an illegal penalty, and involve a measure of compensation too speculative to permit relief.11 Each of these arguments was considered and rejected in Tiidee Products — I.12

Special relief was granted in Tiidee Products — I because the refusal to bargain was so clearly unjustified, based on an attack on the election found to be "palpably without merit."13 This Court recognized that "make-whole" compensation may be inappropriate where the challenge is based on a "debatable question," and emphasized the NLRB's discretionary power to formulate remedies for violations of the Act.14 Tiidee Products — I requires the Board to determine whether an employer's refusal to bargain is a flagrant violation of the Act because its legal objections are frivolous, and if so, whether "make-whole" relief or some other special remedy should be granted.15

In Ex-Cell-O, the NLRB also gave some indication that it was holding in the alternative that Ex-Cell-O's violation was not flagrant — because it was based on debatable questions concerning the certification of the Union — and that "make-whole" relief was therefore inappropriate. This conclusion, however, was apparently based on the Board's assumption that an employer seeking judicial review of an election could never be charged with a flagrant violation, absent "discharge of employees for union activity or other conduct in flagrant disregard of employee rights."16 The clear import of Tiidee Products — I is that an employer's refusal to bargain based on a frivolous challenge to an election is of itself a serious and manifestly unjustified repudiation of the employer's statutory duties and denial of employees' statutory rights to collective bargaining, and that "make-whole" compensation is a proper remedy in such circumstances. The Board says that this potential liability amounts to a condition on the employer's right to litigate its challenge to a Board certification. This is no more of a condition on the right to litigate than the possibility that one may be held liable in damages, or required to forfeit bond exacted as a condition of a stay pending appeal,17 if one's legal position is ultimately disapproved. The Court in Tiidee Products — I found imposition of this potential liability necessary to implement the goals of the Act.

The NLRB referred to another decision of this Court in which a denial of "make-whole" relief was upheld because there was a debatable question.18 However, the Board undertook no analysis of the substance of any issue raised by Ex-Cell-O with regard to the Union's certification,19 but instead stated:20

With due respect for the opinion of the Court of Appeals for the District of Columbia, we cannot agree that the application of a compensatory remedy in 8(a) (5) cases can be fashioned on the subjective determination that the position of one respondent is "debatable" while that of another is "frivolous." What is debatable to the Board may appear frivolous to a court, and vice versa. Thus, debatability of the employer\'s position in an 8(a) (5) case would itself become a matter of intense litigation.

It is precisely this determination which Tiidee Products — I approves, noting that courts should accord the usual latitude to the Board in the exercise of its remedial discretion.

We therefore grant the Union's motion for summary reversal of the NLRB's decision insofar as it denies "make-whole" compensation to the Union on the ground that the denial was in direct conflict with this Court's Tiidee Products — I decision, and remand the case to the Board for further proceedings not inconsistent with this opinion and the opinion in Tiidee Products — I, including express determinations whether Ex-Cell-O's objections to the certification were frivolous or fairly debatable, and whether "make-whole" compensation or some other special remedy is appropriate.21

The NLRB's Motion for Temporary Relief in No. 24,715

The NLRB has applied for temporary enforcement, pending disposition of this appeal, of its order requiring Ex-Cell-O to bargain with the Union. The Act authorizes courts to grant temporary injunctive relief of this nature. Prior to a final Board order to cease and desist from an unfair labor practice, the Board may request a district court to grant temporary relief against the practice under § 10(j).22 After the Board's order and initiation of an enforcement proceeding in a court of appeals, the court entertaining such a proceeding may grant temporary relief under § 10(e).23

Section 10(e) confers a broad power on the courts to give "just and proper" temporary relief to assure obedience to NLRB orders and effectuate the policies of the Act.24 While such relief is more readily granted when the Board seeks to maintain the status quo,25 it is also available to prevent continued violation of the Act during the pendency of an appeal. See, e. g., NLRB v. Beverage-Air Co., 391 F.2d 255, 256 (4th Cir. 1968) (§ 10(e) injunction against enforcement by employer of no-solicitation rule granted). Ex-Cell-O contends that this remedy should not be available to require an employer to engage in collective bargaining when the employer insists that the NLRB's bargaining order is unenforceable, and seeks judicial review. But the fact that an employer claims its refusal to bargain is "technical," reflecting only the desire to obtain review...

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