INTERNATIONAL U., UNITED AUTO., A. & A. IMP. WKRS. v. NLRB

• Decision Date: 25 January 1967
• Docket Number: 20301.,20185,No. 20137,20137
• Citation: 373 F.2d 671
• Parties: INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Preston Products Company, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESTON PRODUCTS COMPANY, Inc., Respondent. PRESTON PRODUCTS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

373 F.2d 671 (1967)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Preston Products Company, Inc., Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESTON PRODUCTS COMPANY, Inc., Respondent.

PRESTON PRODUCTS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 20137, 20185, 20301.

United States Court of Appeals District of Columbia Circuit.

January 25, 1967.

Mr. John Silard, Washington, D. C., with whom Messrs. Joseph L. Rauh, Jr., and Stephen I. Schlossberg, Washington, D. C., were on the petition, for petitioner in No. 20,137. Mr. Bernard Ashe, Detroit, Mich., also entered an appearance for petitioner in No. 20,137.

Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, George B. Driesen and Eugene Granoff, Attys., N.L.R.B., were on the response to the petition, for respondent-petitioner National Labor Relations Board.

Mr. James L. Stokes, Grand Rapids, Mich., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Mr. Stephen C. Bransdorfer, Grand Rapids, Mich., was on the response to the petition, for respondent-intervenor Preston Products Co., Inc.

Before BURGER, TAMM and LEVENTHAL, Circuit Judges.

PER CURIAM:

The Union which filed its petition for review in this court¹ has filed a petition for rehearing en banc of our order of July 19, 1966, transferring these consolidated cases to the United States Court of Appeals for the Sixth Circuit. In view of facts brought into sharper focus by the Union's petition, we have reconsidered the order sua sponte.

Following hearings, a trial examiner upheld unfair labor practice charges brought against Preston Products Company ("Company") on the Union's complaint. The Company filed exceptions to the Board and the Union subsequently filed cross-exceptions² claiming, insofar as relevant here, that the examiner failed to "fashion a remedy designed to fully cure the unfair labor practices which have occurred here."³ The Union had not urged its claim to a compensatory remedy before the trial examiner. The Board overruled all exceptions. Contending that the Board had erred in this regard, the Union filed its petition for review. Several weeks later, after the Board had denied a petition for reconsideration, the Company filed a petition for review of the same order in the Sixth Circuit while the Labor Board petitioned this court for enforcement of its order. Pursuant to 28 U.S.C. § 2112 (a), the Sixth Circuit transferred the Company's petition here.

The Company filed a motion in this court seeking dismissal of the Union's petition or, alternatively, transfer of these cases back to the Sixth Circuit. The Company, relying on Insurance Workers International Union v. N.L.R.B., 124 U.S. App.D.C. 8, 360 F.2d 823 (1966), predicated its motion on the proposition that the Union's claim to a compensatory remedy was insufficient to render it "genuinely aggrieved." The Board took no position on the Company's motion to transfer insofar as it was addressed to the court's discretion, but argued that its motion to dismiss be rejected.

The original memoranda filed by the parties dealt extensively with the question of "good faith" and "motive". The Company argued that the Union's remedy claim was sham and advanced solely to permit it to select the reviewing forum. The Union contended that it was sincerely interested in forceful remedial measures and had asserted its claim in good faith. We considered the motivation issue largely irrelevant to our narrow inquiry. Our transfer order reflected our conclusion, based on the papers then before us, that the Union had received all the relief requested of the examiner.⁴ We cited Insurance Workers, supra, and it is this, apparently, that has led the Board, which adheres to its view that the Union is aggrieved by its order, to file a response to the petition for rehearing seeking clarification and guidelines for this much litigated area. In view of two important facts brought into clear focus by the rehearing papers, we agree that clarification and reconsideration are in order.

Although this fact was not referred to by the parties in their original papers, it now appears that the precedent relied on by the Union was issued subsequent to the examiner's decision in this case.⁵ Additionally, the parties did not supply us with a copy of either the Company's motion for reconsideration or the Board's rejection thereof. We have sent for these documents which are, of course, "in the record." They make it clear that the Union's compensatory remedy claim was denied on the merits.⁶ The Board's denial of the Company's motion for reconsideration removes the possibility that its rejection of the Union's compensatory remedy claim reflected in any significant measure a ruling based on the fact that the Union had received all the relief it had requested of the examiner and only injected this claim on cross-exceptions to the Board. With this further information and awareness it is now clear that the Board considered the Union's claim properly before it and denied it on the merits. We think 28 U.S.C. § 2112(a) requires respect for the forum where the Union filed its petition for review, since that was the first petition for review filed, and we cannot say either that the Union's claim is frivolous or that it is not genuinely aggrieved.⁷

The selection of forum by the first filing of a petition for review is not controlling if overriding considerations of judicial administration call on us to transfer the case, as in a situation where related proceedings are already pending in another circuit,⁸ or in a case where judicial administration is best served through bypassing the...