EMPLOYERS GROUP, ETC. v. National War Labor Board
| Decision Date | 02 June 1944 |
| Docket Number | No. 8680.,8680. |
| Citation | 143 F.2d 145 |
| Parties | EMPLOYERS GROUP OF MOTOR FREIGHT CARRIERS, Inc., et al. v. NATIONAL WAR LABOR BOARD et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Ralph H. Cahouet, of Boston, Mass., of the Bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. J. Ninian Beall, of Washington, D. C., was on the brief, for appellants. Mr. Eugene X. Murphy, of Washington, D. C., also entered an appearance for appellants.
Assistant Attorney General Francis M. Shea, with whom Messrs. Edward M. Curran, United States Attorney, of Washington, D. C., Joseph A. Fanelli, Special Assistant to the Attorney General, and Robert Burstein, Attorney, Department of Justice, were on the brief, for appellees.
Before MILLER, EDGERTON, and ARNOLD, Associate Justices.
This is a suit to annul and enjoin a "directive order" of the National War Labor Board. The plaintiffs include an association of motor freight carriers and a group of individuals who represent some 300 trucking companies engaged in the transportation of freight in Boston and throughout New England. The defendants are the National War Labor Board, its Chairman, its Trucking Commission, the Director of Economic Stabilization, and the Administrator of the Office of Price Administration.
The complaint sets forth that the plaintiffs and their employees failed to reach an agreement regarding wages and hours; that the Conciliation Service of the United States Department of Labor was also unsuccessful; that the Department referred the dispute to the Board and the Board to its Trucking Commission.1 In April, 1943, after hearings, the Trucking Commission made findings and issued * * *" The Board declined to review this action of the Trucking Commission and declared it final.
The complaint asserts that the Board's findings and order are "unlawful, being violative of applicable statutes and executive orders of the President of the United States, are arbitrary and capricious, and unsupported by any material evidence of record, have resulted and will continue to result, unless changed and modified, in irreparable injury to the employers affected thereby * * *." More specifically, the complaint asserts that the Board considered supposed wage inequalities, that no such inequalities actually existed within the New England area, that no others were pertinent, and that the Board had been forbidden by Executive Order, No. 9328, 50 U.S.C.A.Appendix, § 901 note, to consider inequalities. The complaint also asserts that it is "impossible for the plaintiffs to absorb the said award, and the industry is confronted with outright failure and dissolution." It states that findings of the Board, in other cases, "have been enforced by governmental seizure of the property and business of allegedly non-complying respondents." It concludes that "obviously plaintiffs must comply" with the Board's directive order, but does not say that they have complied or are complying.
We think the District Court was right in granting the defendants' motion to dismiss the complaint. The Board's order is not reviewable.2
It is clear and undisputed that no statute authorizes review of the War Labor Board's orders. As we point out be low, the legislative history of the War Labor Disputes Act implies a positive intention that these orders should not be reviewed Aside from that important and probably conclusive fact, the question is whether general equitable principles authorize review. We think they do not. Without suggesting that the factors named are in themselves sufficient, the cases in which the Supreme Court has sustained suits, not specially authorized by statute, to annul or enjoin alleged illegal administrative action may be classified for present purposes in two groups. Either (1) the administrative action was directly injurious to legally protected interests of the plaintiff3 or (2) it furnished a basis for probable judicial proceedings against the plaintiff.4 Examples of the first sort are United States v. Lee,5 a suit to recover the plaintiff's land which government officers were withholding; Waite v. Macy,6 a suit to import goods which customs officers were excluding; American School of Magnetic Healing v. McAnnulty,7 a suit to obtain mail which the Post Office was withholding; and Utah Fuel Co. v. National Bituminous Coal Commission,8 a suit to prevent disclosure of information alleged to be confidential. Examples of the second sort are Shields v. Utah Idaho Railroad Co.,9 a suit to enjoin prosecution under the Railway Labor Act for noncompliance with an administrative order; Philadelphia Company v. Stimson,10 a suit to set aside harbor lines established by the Secretary of War and enjoin criminal prosecution for disregarding them; and Panama Refining Co. v. Ryan,11 a suit to enjoin penal enforcement of orders issued under the National Industrial Recovery Act. The present case is of neither sort. Judicial review of administrative action cannot be confined by a formula, and existing categories may be extended if need arises. But there is no need here. No money, property, or opportunity has been taken or withheld from the appellants, and no one threatens any such act. No one threatens, and no one could maintain, either judicial or administrative proceedings against the appellants upon the authority of the Board's order. In these circumstances there is no occasion for review of the Board's order.
The War Labor Board was created in view of the declarations of war, and the no-strike agreement of representatives of labor and industry, by Executive Order 9017.12 This Order provided that
The Act of October 2, 1942, sometimes called the Inflation Control Act, provides in § 1 13 This Act was immediately followed by Executive Order 9250, which created the Office of Economic Stabilization. By this Order the functions of the War Labor Board were "extended to cover all industries and all employees" and the Board was "authorized to carry out the wage policies stated in this Order."14 The Order forbids increases or decreases in wage rates without the Board's approval,15 and forbids approval of increases not 16
The Board's directive order in this case was expressly issued by virtue of the powers vested in the Board by the two Executive Orders which we have cited, 9017 and 9250.
The Inflation Control Act provides that "No employer shall pay, and no employee shall receive, wages or salaries in contravention of the regulations promulgated by the President under this Act."17 The regulations promulgated by the President in Executive Order 9250 forbid the adoption, without the Board's approval, of a new wage scale. But neither Executive Order 9250 nor any other regulation forbids adherence to an old wage scale after the Board has approved a new one. Appellants will not, by declining to adopt the new scale, subject themselves to the penalties which the Inflation Control Act provides for violation of its provisions,18 or to any other penalties.
The Board's action is not even mandatory in form. It is entitled "Directive Order," introduced by the phrase "the following Directive Order," and described as an "Order of Approval." It nowhere uses the word "order," or any similar word, without qualification. "Directive" in this context appears to mean "directory," i. e. not mandatory.19
The grant to the Board, in the War Labor Disputes Act, of authority to "decide" disputes and "provide by order the wages and hours * * * which shall be in effect * * *"20 is not directly relevant here, since the Board's order was issued in April, 1943, and the War Labor Disputes Act was not passed until the following June. There is nothing to suggest that this Act should be given retroactive effect. But even if this Act had been in...
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