National Labor Rel. Bd. v. Sandy Hill Iron & Brass Wks.

• Decision Date: 05 November 1947
• Docket Number: No. 15,Docket 20595.,15
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. SANDY HILL IRON & BRASS WORKS.

165 F.2d 660 (1947)

NATIONAL LABOR RELATIONS BOARD v. SANDY HILL IRON & BRASS WORKS.

No. 15, Docket 20595.

Circuit Court of Appeals, Second Circuit.

November 5, 1947.

Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose, all of Washington, D. C., Vincent M. Rotolo, of Palisades Park, N. J., and David P. Findling, Associate Gen. Counsel, Ruth Weyand, Acting Asst. Gen. Counsel, and Mozart G. Ratner, all of Washington, D. C., for National Labor Relations Board.

Davie, Auerbach, Cornell & Hardy, of New York City, and Walter C. Ross, of Springfield, Mass. (Martin A. Schenck, Christopher W. Hoey and Quentin O. Young, all of New York City, of counsel), for respondent Sandy Hill Iron & Brass Works.

Before L. HAND, SWAN and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The National Labor Relations Board filed this petition under Sec. 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., to enforce an order issued against the respondent on July 11, 1946. The order required the respondent to reinstate a number of discharged employees or to put them on a preferred employment list; to make them whole for back pay less their interim net earnings; to cease and desist from the unfair labor practices found; and to post the usual notices. It was made after a hearing on a complaint issued by the Board, upon two separate charges, one filed by the United Steel Workers of America (C.I.O.) and the other by a discharged employee named Billetdoux. The order was based upon findings which the respondent does not now contend are insufficient in content or inadequately supported by the evidence to sustain the Board's conclusions that the respondent was guilty of unfair labor practices in violation of Sec. 8(1), (3), and (4) of the Act as it stood on the date the order was made. Enforcement of the order, except in so far as it deals with unnamed employees, is resisted only on two grounds stated as follows:

"1. The Board's order may not be enforced under the provisions of the Labor Management Relations Act of 1947 (Public Law 101, 80th Congress, June 23, 1947 29 U.S.C.A. § 141 et seq.).

"2. The Board's findings of fact may not be sustained under the provisions of the Administrative Procedure Act of 1946 (Public Law 404, Chapter 324, 79th Congress, 2nd Session June 11, 1946 5 U.S. C.A. § 1001 et seq.), and the Labor Management Relations Act of 1947."

The petition for enforcement was filed in this court in May, 1947 and thus before the enactment of the Labor Management Relations Act of 1947, hereinafter to be called the New Act, on June 23, 1947. It did amend the first statute above cited, the Wagner Act, in certain respects but in others left it unaltered. We are now primarily concerned with what changes, if any, were made as to the kind of unfair labor practices this order sought to correct as to the past and prevent as to the future. The aspect of correction will be considered separately from that of prevention.

The respondent was found to have violated the Wagner Act by attempting to discourage union organization in several ways, viz., by threats and intimidation, by promises of benefits or reward, and by discriminatory discharges. Anti-union conduct of this nature remains violative of the New Act. If the findings regarding such conduct are now as adequate to support the order as they were when it was made, to the extent that they do, it should be enforced.

The reason for enforcement is perfectly plain. Correction of these unfair labor practices is still required. The means and methods of correction are as available as before. It is enough that the findings show the respondent to have violated the applicable statute both as it was when the order was made and as it is now. Since the statute is essentially remedial, rather than punitive, Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 236, 59 S.Ct. 206, 83 L.Ed. 126; Republic Steel Corp. v. N. L. R. B., 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, it is immaterial that some of the conduct on which the findings of violations of the Wagner Act were based would not be forbidden by the New Act. Thus we need not determine whether the obligations of employers arising out of violations of the Wagner Act are "liabilities" within the meaning of the general savings statute as amended, 1 U.S.C.A. § 29.

But the rule is different in respect to the preventive portions of the order. Conduct which was unlawful when the order was made was properly forbidden as of that time. But some of that conduct ceased being unlawful upon the passage of the New Act. To the extent that the preventive portions of the order may be considered to prohibit conduct that is now lawful, they are not enforceable and cannot be made the basis for contempt proceedings. United States v. The Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49; Ziffrin, Inc., v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621; N. L. R. B. v. Atkins & Co., 7 Cir., 165 F.2d 659. For instance, statements by representatives of the respondent derogatory to unions, union members, or union organization, but falling short of threats, intimidation, or promises of favor or benefit would not be unlawful if presently made and thus could not now be forbidden. Having made this clear, we do not believe any change in the phraseology of the order is needed.

Part of the order requires action in respect to unnamed persons, and is, therefore, presently so indefinite that further action by the Board is necessary. The difficulty is one of identification of the employees who were unlawfully discharged and it arose in this way. After a strike at re...