National Labor Relations Board v. OZANNE INCORPORATED, 5852.

• Decision Date: 22 June 1962
• Docket Number: No. 5852.,5852.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OZANNE INCORPORATED, d/b/a Wethersfield Farms, Respondent.
• Court: U.S. Court of Appeals — First Circuit

307 F.2d 80 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OZANNE INCORPORATED, d/b/a Wethersfield Farms, Respondent.

No. 5852.

United States Court of Appeals First Circuit.

June 22, 1962.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul Elkind and Elliott Moore, for National Labor Relations Board, on petition for injunctive relief.

Merrill B. Nearis, Gloucester, Mass., for Carl Trumbull, on answer to order to show cause.

Before WOODBURY, Chief Judge, and HARTIGAN, and ALDRICH, Circuit Judges.

PER CURIAM.

In this case the Labor Board asks us to overrule our decision in N. L. R. B. v. Underwood Machinery Co., 1 Cir., 1952, 198 F.2d 93, wherein we held that although we had power to do so we would not restrain a state court garnishment proceeding wherein a creditor of an employee ordered by us to be "made whole" sought to subject the employer's payments to state court process. Admittedly there is an irreconcilable conflict between free enforcement of creditors' remedies and untrammeled supervision by the Board over compliance with its orders, and we must balance the interests. During the pendency of garnishment proceedings the employer is not only excused from complying with an order, but is totally prevented from doing so. At the least this embarrasses and interferes with the Board and extends its duties. Even if the employer's obligation to comply is an attachable obligation, which the Board disputes, on further consideration we think that Judge Magruder, in dissenting in Underwood Machinery Co., was correct, and that it is more important that the Board's regular procedure be not interfered with than that some individual creditor be deprived of one of his possible remedies. Cf. N. L. R. B. v. Sunshine Mining Co., 9 Cir., 1942, 125 F.2d 757.

However, we have now learned that while this matter has been pending in this court the debtor was defaulted in the state proceedings and the deputy sheriff, in due course, has collected from the employer on execution. Under these circumstances we will not enter an injunction.