National Labor Relations Bd. v. Edward G. Budd Mfg. Co., 10259.

• Decision Date: 16 August 1948
• Docket Number: No. 10259.,10259.
• Citation: 169 F.2d 571
• Parties: NATIONAL LABOR RELATIONS BD. v. EDWARD G. BUDD MFG. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

169 F.2d 571 (1948)

NATIONAL LABOR RELATIONS BD. v. EDWARD G. BUDD MFG. CO.

No. 10259.

Circuit Court of Appeals, Sixth Circuit.

August 16, 1948.

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W. R. Consedine, of Washington D. C. (Gerhard P. Van Arkel and A. Norman Somers, both of Washington, D. C., Joseph B. Robison, of New York City, and Arnold Ordman, and William R. Consedine, both of Washington, D. C., on the brief), for petitioner.

Albert E. Meder, of Detroit, Mich., (Beaumont Smith & Harris of Detroit, Mich., Albert E. Meder, of Detroit, Mich., of counsel), for respondent Budd Mfg. Co.

Decree for enforcement filed June 3, 1947:

Jack G. Evans, of Washington, D. C. (David P. Findling, Ruth Weyand, and Norton J. Come, all of Washington, D. C., on the brief), for N. L. R. B.

Walter M. Nelson, of Detroit, Mich. (Allan R. Rosenberg, of Washington D. C., and Smoot & Riemer, of Cleveland, Ohio, on the brief), for Foreman's Ass'n of America, intervenor.

Beaumont Smith & Harris, of Detroit, Mich. (Albert E. Meder, of Detroit, Mich., of counsel), for respondent Budd Mfg. Co.

Before HICKS, MARTIN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

On June 3, 1947, relying on the authority of Packard Motor Car Company v. National Labor Relations Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040, this Court ruled that foremen of the respondent, Edward G. Budd Manufacturing Company, were employees within the meaning of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and decreed enforcement of a cease and desist order of the National Labor Relations Board protecting such employees in their rights under the Act. N. L. R. B. v. Edward G. Budd Manufacturing Co., 6 Cir., 162 F.2d 461. Thereafter on June 23, 1947, Congress enacted the Labor Management Relations Act of 1947, Public Law 101, 80th Cong., 29 U.S.C.A. § 141 et seq., effective August 22, 1947, amending provisions of the National Labor Relations Act. In view of the change in the law with respect to supervisory employees made by this Amendment, respondent petitioned for certiorari. The Foreman's Association of America petitioned for leave to intervene. By order of December 15, 1947, the Supreme Court granted the petition to intervene, granted certiorari to a limited extent and remanded this case to the Circuit Court of Appeals for consideration of the effect of the Labor Management Relations Act on the question to which the grant of certiorari was limited. Edward G. Budd Mfg. Co. v. N. L. R. B., 332 U.S. 840, 68 S.Ct. 262. The case is now before us on this remand.

In view of the questions raised by the parties, it becomes necessary to consider the wording of the Board's order and also the wording of the Supreme Court's Per Curiam and order of remand. The Board's order directed that the respondent —

"1. Cease and desist from:

"(a) Discouraging membership in the Foreman's Association of America, by discharging, laying off or refusing to transfer to production jobs any of its supervisory employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment;

"(b) In any other manner interfering with, restraining, or coercing its supervisory employees in the exercise of the right to self-organization, to form, join, assist or bargain collectively through Foreman's Association of America, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act."

Paragraphs 2(a) and 2(b) of the order directed the respondent to reinstate Oscar Owens to his former position without prejudice to his seniority and without loss of pay. Paragraphs 2(c) and 2(d) directed the respondent to post appropriate notices and to notify the regional director of its compliance with the affirmative provisions of the order. The Per Curiam and order of the Supreme Court is in part as follows:

"The petition for writ of certiorari is granted limited to the question of the validity of that part of the order of the National Labor Relations Board which directs the petitioner to cease and desist from discouraging membership in the Foreman's Association of America. The judgment of the Circuit Court of Appeals is vacated in that respect and the cause is remanded to that Court for consideration of the effect of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., on the question to which the grant of certiorari is limited."

It is contended by the Foreman's Association that under the foregoing order of remand we are limited to a consideration of the effect of the Labor Management Relations Act upon Paragraph 1(a) only of the Board's order, and that Paragraph 1(b) and all of Paragraph 2 of the order remain in full force and effect. Both the respondent and the Board contend that the order of remand brings into consideration not only Paragraph 1(a) of the Board's order but also Paragraph 1(b) and that part of Paragraph 2 of the order dealing with the posting of appropriate notices. We agree with the respondent and the Board. Although a strict literal reading of the order of remand refers merely to that part of the order "which directs the petitioner to cease and desist from discouraging membership in the Foreman's Association of America," which is the wording contained in Paragraph 1(a) of the order, yet it seems plain to us that the same issue is involved in Paragraph 1(b) of the order; that that part of Paragraph 2 of the order dealing with the posting of appropriate notices is for the purpose of implementing the cease and desist paragraphs of the order; and that a compliance with the true purpose of the mandate requires us to consider all of these provisions rather than merely limiting our consideration to Paragraph 1(a). The proper construction of a court's decree is not to be obtained by seizing upon isolated parts of the decree; rather it is to be determined by an examination of the issues made and intended to be submitted and what the decree was really designed to accomplish. Its scope is to be determined by what preceded it and what it was intended to execute. Mayor and Alderman of City of Vicksburg v. Henson, 231 U.S. 259, 273, 34 S.Ct. 95, 58 L.Ed. 209; Union Pacific R. Co. v. Mason City and Ft. D. R. Co., 222 U.S. 237, 247, 32 S.Ct. 86, 56 L.Ed. 180. The reason for vacating that portion of this court's decree which enforced Paragraph 1(a) applies equally to the cease and desist provision of Paragraph 1(b).

We think it is equally clear that Paragraphs 2(a) and 2(b) of the order dealing with the reinstatement of Oscar Owens are not before us for reconsideration. The respondent has fully complied with those provisions of the order. They deal with the past rather than with the future. The general savings statute, 1 U.S. C.A. § 29, provides that the repeal of a statute will not release any liability incurred under such statute unless the repealing act shall so expressly provide. The respondent's obligation to Owens under the Board's order was a liability under the National Labor Relations Act before the Amendment of 1947. The amendment contains no provision for relieving an employer from any liability arising out of any unfair labor practice committed prior to the passage of that Act.

Section 2(3) of the Act as amended provides: "The term `employee' shall include any employee, * * * but shall not include any individual employed * * * as a supervisor * * *." Section 2(11) provides: "The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C.A. § 152(3, 11). The Foreman's Association contends that the so-called foremen involved in this proceeding are not supervisors as defined by the foregoing section of the Act and are accordingly employees who are entitled to the protection of the Act.

The intermediate report of the trial examiner, adopted by the Board, found as follows:

"The testimony established the fact that the foremen at the plant are supervisory employees who occupy an intermediate position between top management and the rank and file employees. They are in charge of production in their respective departments where they carry out production schedules which have been arranged and blueprinted for them and from which they can only depart in minor matters or in emergencies. All hiring is done through the Employment Office which passes on their requests for help. Foremen can recommend discharges; but those recommendations only become effective after they have been passed upon by the Personnel Department. Foremen have the right and duty of attempting to settle grievances in the first instance, but they are bound by established rules and regulations and the contract between respondent and the Union representing its rank and file employees. Employees who wish to do so have the right to resort to the established grievance procedure and appeal decisions of foremen. In short, foremen are bound by directions from their own supervisors, but in their own departments, as supervisors, they exercise a good deal of discretion in carrying out their orders."

We are of the opinion that such duties bring respondent's foremen within the statutory definition of supervisor.

The chief argument of the Foreman's Association to the contrary is that the foregoing definition of supervisor should be construed as reading that a supervisor means any individual having authority, in the interest of the employer, to hire and transfer, and suspend, and lay off, and recall, and promote, and discharge, and assign, and...