National Labor Relations Board v. Express Pub Co

• Decision Date: 03 March 1941
• Docket Number: No. 442,442
• Citation: 61 S.Ct. 693,312 U.S. 426,85 L.Ed. 930
• Parties: NATIONAL LABOR RELATIONS BOARD v. EXPRESS PUB. CO
• Court: U.S. Supreme Court

312 U.S. 426

61 S.Ct. 693

85 L.Ed. 930

NATIONAL LABOR RELATIONS BOARD

v EXPRESS PUB. CO.

No. 442.

Argued Feb. 14, 1941.

Decided March 3, 1941.

Messrs. Laurence A. Knapp, of Washington, D.C., and Robert H. Jackson, Atty. Gen., for petitioner.

Mr. Leroy G. Denman, of San Antonio, Tex., for respondent.

[Argument of Counsel from page 427 intentionally omitted] Mr. Justice STONE delivered the opinion of the Court.

The National Labor Relations Board ordered respondent affirmatively to bargain collectively with the San Antonio Newspaper Guild, the authorized representative of respondent's employees. In addition it ordered respondent, (1) to 'cease and desist' from refusing to bargain collectively with the Guild; (2) to 'cease and desist' from interfering with, restraining or coercing its employees in the exercise of their rights to self-organization', and other rights guaranteed by § 7 of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.Supp.V, § 151 et seq., 29 U.S.C.A. § 151 et seq.; (3) to post notices stating, among other things, that respondent will 'cease and desist as aforesaid' and will bargain collectively with the organized representative of its employees. On the record before us the question for our decision is whether the provisions of the order which we have enumerated are supported by the Board's finding that the respondent had refused to bargain collectively with the authorized representative of its employees, and had interfered with such bargaining negotiation, and had thereby interfered with the exercise of the rights guaranteed by § 7 of the Act.

The Board issued its complaint charging respondent, a publisher of a newspaper, with refusal to bargain collectively with the Guild as the authorized representative of the employees in respondent's editorial department, and that by such refusal and by statements made by respondent at a meeting of those employees it 'did interfere with, restrain and coerce' its employees in the exercise of the rights guaranteed by § 7 of the Act¹ and did engage in unfair labor practices defined by §§ 8(1) and 8(5). The usual proceedings and hearings before the Board resulted in findings by the Board to the effect that although respondent had throughout recognized the organization of respondent's editorial room employees and the Guild as their representative, and had met with the Guild representatives whenever requested for the purpose of discussing the employees' demands, it nevertheless had persistently refused to discuss in detail the proposals of the Guild, to make any counter proposals or to enter into any agreement with it, and had not negotiated in good faith in a genuine effort to compose the differences between employer and employees.

The Board found that respondent had refused to bargain as required by § 8(5) of the Act. It found that respondent had made the statements charged in the complaint at a meeting of its employees and that these statements were an 'interference with the Guild's efforts to negotiate'. Treating respondent's action in refusing to bargain and in interfering with the bargaining negotiations as an infringement of all the rights guaranteed to the employees by the Act, it found broadly, in the words of the statute, a violation of § 8(1) which declares that it is an unfair labor practice for the employer 'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in § 7 (section 157 of this title)'. Section 7 provides: 'Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.'

From all this the Board concluded that the 'appropriate remedy' was an order directing respondent 'upon request to bargain collectively with the * * * Guild' as the 'exclusive representative' of respondent's editorial room employees and 'if understandings are reached to embody such understandings in a signed agreement if requested to do so by the Guild.' Having provided the recommended remedy by the provisions of its order directing the respondent to bargain and to cease and desist from refusing to bargain the Board went further and ordered broadly that respondent should in effect refrain from violating the Act in any manner whatsoever. This it did by paragraph 1(b) of the order which directed respondent to cease and desist from

'In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act.'

It is this and the provisions of the order other than that part of it directing respondent to bargain which are the subjects of the present controversy.

Upon petition of the Board to enforce the order, the Court of Appeals for the Fifth Circuit struck from it all the provisions except that which directed respondent to bargain with the Guild on request, and to embody any understanding in a signed agreement. For so much of the order as directed the posting of notices the court substituted a requirement that respondent notify the Guild of its willingness to comply with the order as modified and to notify a specified agent of the Board what steps respondent had taken to comply with the order. 111 F.2d 588. We granted certiorari November 12, 1940, 311 U.S. 638, 61 S.Ct. 134, 85 L.Ed. —-, the ques- tions raised being of importance in the administration of the National Labor Relations Act.

Although respondent has not sought certiorari it seeks to retain such advantages as it may have gained from the modification of the Board's order below, by arguing broadly that the Board's finding of respondent's refusal to bargain is without support in the evidence, which it is said shows only that respondent refused to yield to the Guild demands as it was free to do. But in the absence of a cross-petition for certiorari by respondent that question is not open here. Without the findings relating to respondent's refusal to bargain there was no basis for any order by the Board and we think that the purpose and effect of the judgment sustaining so much of the Board's order as directed that respondent bargain with the Guild was to sustain the findings on which it was based. This appears both from the opinion of the Court of Appeals, the purport of which is that respondent in its negotiations with the Guild had not acted in good faith and so had failed to bargain as the statute requires, and also from the terms of the judgment modifying the Board's order. The judgment affirming the Board's order as modified retained, as the foundation of the judgment, the recital contained in the Board's original order that it was made upon the basis of all the Board's findings. In this state of the record our review is limited to the sufficiency of the Board's findings to support the order.

We conclude also that it is not open to respondent to challenge the judgment below, as it attempts to do, on the ground that the Board's complaint in charging a failure to bargain did not sufficiently inform respondent of the contention that it had failed to bargain in good faith. This is the case both because respondent has sought no review of the judgment below and because it sufficiently appears from the record that in the course of the hearings before the Board respondent was fully advised of the nature of the Board's contention.

But it is the Board which has brought the judgment below here for review and on it rests the burden of showing in what respects the judgment is erroneous. Cf. Federal Trade Commission v. Beech Nut Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882. To sustain that burden the Board insists that all the provisions of its order were lawfully made and that it is entitled to have the order enforced in its entirety. Section 10(c) of the Act provides that if the Board 'upon all the testimony taken * * * shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action * * * as will effectuate the policies of this Act (chapter).' The Board, having found in this case that respondent had refused to bargain, that part of its order directing respondent to 'cease and desist from refusing to bargain collectively' with the Guild, was in exact compliance with the statute and should have been left undisturbed by the judgment below.

A question of a different nature is presented by Paragraph 1(b) of the order by which the Board, on the basis of respondent's action in refusing to bargain and its statements interfering with the bargaining negotiations, has directed respondent not to violate 'in any manner' the duties imposed on the employer by the statute. Petitioner argues that since respondent's refusal to bargain, which is a violation of § 8(5), is also a violation of § 8(1) which in terms incorporates by reference all the rights enumerated in § 7, the Board is not only free to restrain violations like those which respondent has committed, but any other unfair labor practices of any kind which likewise infringe any of the rights enumerated in § 7, however unrelated those practices may be to the acts of respondent which alone emerged in course of the hearing and which the Board has found.

But we think it does not follow that, because the acts of respondent which the Board has found to be an unfair labor practice defined by § 8(5)...