Love Box Co. v. NLRB

• Decision Date: 05 March 1970
• Docket Number: No. 6-68.,6-68.
• Citation: 422 F.2d 232
• Parties: LOVE BOX CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

422 F.2d 232 (1970)

LOVE BOX CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 6-68.

United States Court of Appeals, Tenth Circuit.

March 5, 1970.

Marvin J. Martin, Wichita, Kan. (W. Stanley Churchill, and Martin, Cooper, Churchill & Friedel, Wichita, Kan., on the petition), for petitioner.

John I. Taylor, Jr., Attorney, N.L.R.B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Michael F. Rosenblum, Attorney, N.L.R.B., on the Brief), for respondent.

Before MURRAH, Chief Judge, and LEWIS, BREITENSTEIN, HILL, SETH, HICKEY, and HOLLOWAY, Circuit Judges, sitting en banc.

PER CURIAM.

Opinion On Rehearing

This rehearing en banc was granted for consideration of the portion of the National Labor Relations Board Order in this case relating to the notice required to be posted by the company. The panel which heard the petition for review, and the cross-petition to enforce the order, filed an opinion on the "merits" which held that the Board's findings were supported in part, and thus a partial enforcement was in order. 412 F.2d 946. The opinion expressly did not consider the form of the judgment, as this matter was deferred. The parties thereafter submitted proposed forms of judgment, and the panel entered a judgment which modified the Board's suggested wording of the notice to be posted. The petitioner company still objected to the notice, and asked for a rehearing en banc which was granted.

The general standard for court review is directed to the court's consideration of the underlying findings relating to a violation. It does not refer to the Board's inclusion of a remedy under section 10(c) whereunder the Board may order such "affirmative action" as will effectuate the policies of the Act. Thus the issue here arises because there is no statutory provision as to the review of such a remedy. It is apparent that the Board's exercise of its authority under this subsection (c) is not without review. The Supreme Court upon many occasions has reviewed the scope and the substance of orders so issued.

Although orders under section 10(c) have often been reviewed by other courts, reference is seldom made to the nature or the standards of review of the section 10(c) affirmative relief portion of the Board's order as compared to the basic violation findings. See 112 U.Pa.L.Rev. 69 where this distinction is developed.

The Supreme Court has considered orders on a case by case basis. In N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953), the Court examined the Board's order providing a formula for determining the amount of back pay to be awarded a discharged employee. The Court of section 10(c) said: "It charges the Board with the task of devising remedies to effectuate the policies of the Act. Of course the remedies must be functions of the purposes to be accomplished, * * *." The Court also said, as to the back pay at least, that the power was broad, was discretionary, and for the Board, not the courts. The Court also quoted stronger language from Virginia Electric & Power Co. v. N.L.R.B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, to the effect that a back pay order of the Board should "stand" unless it be a "* * * patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act."

In N. L. R. B. v. General Drivers, 264 F.2d 21 (10th Cir.), we examined an order requiring a refund of union dues to its members and held that the remedy was appropriate, the order remedial. It was also stated that "* * * we are unable to say that the remedy the Board has fashioned is wholly inappropriate for the effectuation of the policies of the Act." The cases of N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377, and Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, were then cited.

The Supreme Court again in Local 60, United Brotherhood of Carpenters and Joiners of America, A.F.L.-C.I.O. v. N. L. R. B., 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed. 2d 1 (1961), considered the portion of the Board's order relating to a refund of union fees to members and found it to be punitive rather than remedial and beyond the powers of the Board. This was the only expressed standard. See also N. L. R. B. v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; International Ass'n of Machinists, Tool and Die Makers Lodge No. 35 v. N. L. R. B., 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50; H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368, and Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568.

Recently, however, the Supreme Court in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, was concerned with the significance of union authorization cards and, more pertinent to our question, whether the Board's order to bargain was as it said an "appropriate and authorized remedy." The Court in a footnote concerning the purpose of the Board's bargaining order stated in part: "In fashioning its remedies under the broad provisions of § 10 (c) of the Act (29 U.S.C. § 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L. Ed.2d 233 (1964)." The Court in its extended evaluation of the bargaining order as a remedy in the body of the opinion did not set out as such any standards of review of the selection of the remedy other than the footnote considered above; and reference to the "propriety" of the remedy, when it is the "only available, effective remedy," and whether the situation is extraordinary to warrant a bargaining order. In so doing the Court refers to "findings" made in one of the combined cases by the Board to the effect that the situation was such that a bargaining order would have been necessary to repair the damage. The Court in the other two cases where the Board did not make a finding that such an order was necessary stated that such a finding was implicit in the order; however, the Court remanded these two cases for "proper findings."

It would appear from the Gissel case that the Court is prepared to apply essentially the same standards to section 10(c) affirmative relief orders as it has to other findings of the Board with only the footnote reference to the expertise of the Board on the subject and the "special respect" to be given to it by the reviewing courts. Thus under N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L.Ed.2d 547, we make the usual review of the findings made by the Board as they relate to the use of the notice, to examine the notice as a remedy to see if it is an "appropriate remedy," and in the choice of remedy give "special respect" to the Board's expertise; also to see if it contains inferences not warranted by the findings or which are obviously offensive or demeaning.

The notice as a remedy was contemplated in the legislative history, and in cases such as the one before us it is obviously proper, and no additional or special findings are necessary to support it.

We next turn to a somewhat different question — the contents of the notice. The notice itself is to become a part of the judgment of this court and it must be carefully examined.

The Seventh Circuit in Unit Drop Forge Div. Eaton, Yale & Towne, Inc. v. N. L. R. B., 412 F.2d 108 (1969), recently reviewed the contents of a notice provision in the Board's order and struck out the portion which stated that the Board has ordered the company to "keep our word about what we say in this notice." The court said that it otherwise contained an implication that the company was untrustworthy. The wording, the court said, suggested that the respondent was reliable only under...