National Labor Relations Board v. Draper Corp.

• Citation: 159 F.2d 294
• Decision Date: 04 February 1947
• Docket Number: No. 4229.,4229.
• Parties: NATIONAL LABOR RELATIONS BOARD v. DRAPER CORPORATION.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

159 F.2d 294 (1947)

NATIONAL LABOR RELATIONS BOARD v. DRAPER CORPORATION.

No. 4229.

Circuit Court of Appeals, First Circuit.

February 4, 1947.

Marcel Mallet-Prevost, of Washington, D. C. (A. Norman Somers, Asst. Gen. Counsel, of Washington, D. C., on the brief), for petitioner.

Warren D. Oliver, of Boston, Mass. (Henry V. Atherton, of Boston, Mass., on the brief), for respondent.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

The pending proceeding was initiated by a petition filed by the National Labor Relations Board for enforcement of its order against the Draper Corporation issued August 2, 1946. 49 Stat. 454, 29 U.S.C.A. § 151 et seq.

It appears from the transcript that, after the Board had issued its complaint charging respondent with unfair labor practices, a "Settlement Stipulation" dated July 25, 1946, was executed by representatives of respondent, of the union which had filed the charges of unfair labor practices, and of the Board. The stipulation was stated to be subject to the approval of the Board, which approval was subsequently given.

The jurisdictional facts relating to respondent's business were set forth in the stipulation in some detail. Paragraphs 14 and 16 of the stipulation read as follows:

"14. The Respondent hereby waives the right to file an answer to the Complaint herein and the Amendment thereof and the Respondent and the Union hereby waive in the above-entitled proceeding the right to a hearing, to the taking of testimony or other evidence before a Trial Examiner, to oral argument on any of the allegations of the Complaint herein and the Amendment thereof, to the making of findings of fact and conclusions of law by the Board, and to any other or further proceedings preliminary to the issuance of an order by the Board herein to which they may be entitled under the Act and the Rules and Regulations of the Board."

"16. The Respondent denies that it has violated the Act and more particularly any provisions of the Act as alleged in the Second Amended Charge, and the Complaint herein and the Amendment thereof. Nevertheless, for the purpose of disposing of this proceeding in an amicable and expeditious manner, the Respondent stipulates and agrees that the Board has accumulated and has in its possession ready for presentation at any hearing which may be conducted in this proceeding by the Board, substantial evidence sufficient to warrant findings of fact to support the allegations of the Complaint and the Amendment thereof, and that the Board may enter an order containing the provisions hereinafter set forth."

Then followed, in paragraph 17, the text of the order which it was agreed the Board might enter. Paragraph 18 of the stipulation was as follows:

"18. The Respondent agrees that if the Board should petition a Circuit Court of Appeals or a District Court of the United States pursuant to Section 10(e) of the Act for the enforcement of a Board order entered in accordance with the stipulation and agreement contained in Paragraph 17 above, the Respondent will not interpose any defense to the issuance of an enforcement decree based on the inadequacy of evidence upon which said Board order is predicated nor on the ground that the violations alleged in the Complaint and the Amendment thereof have not been legally proved. Respondent reserves the right to oppose entry of a decree upon the grounds that it has complied with the affirmative provisions of said Board order, that it is not engaging in the practices enjoined in Paragraph 1 of said Board order and that no violation of Paragraph 1 of said Board order is threatened or proposed by the Respondent. The Board reserves the right to contend that compliance with a Board order is not a valid defense to entry of a decree of enforcement."

Pursuant to the stipulation the Board, on August 2, 1946, entered its order in the exact terms that had been agreed upon. The text of the order, so far as is now material, is copied in the footnote.¹

After filing its petition for enforcement of the order, the Board submitted a motion which is now before us for disposition. The motion asked for the entry of a decree forthwith enforcing the Board's order "without requiring the printing of the pleadings before the Board and the Board's decision and order and the submission of a brief and appendix, as provided for in Rules 24 and 25 of this Court, and without requiring the presentation of oral argument," on the ground that, in view of the terms of the stipulation, summary enforcement would be appropriate. Respondent filed objections to the motion, to which objections the Board filed a memorandum in reply. We set the motion down for oral argument on January 7, 1947, on which date counsel for the Board and for the respondent appeared and were heard upon the motion.

It is respondent's position that, while by stipulation it agreed to the entry of the Board order, it did not agree not to contest the entry of an enforcement decree. In paragraph 18 of the stipulation it has agreed not to contest the issuance of an enforcement decree on the ground of inadequacy of the evidence on which the Board's order is predicated. But respondent has reserved "the right to oppose entry of a decree upon the grounds that it has complied with the affirmative provisions of said Board order, that it is not engaging in the practices enjoined in Paragraph 1 of the said Board order and that no violation of Paragraph 1 of said Board order is threatened or proposed by the Respondent." This reserved point has already been decided by this court adversely to respondent's contention in N.L.R.B. v. Clinton E. Hobbs Co., 1 Cir., 1942, 132 F.2d 249, to which ruling we adhere. In the opinion in that case (132 F.2d at page 252) we said:

"If the Board's order was proper on the record before it the Board does not have to litigate in this court issues of fact as to whether the employer has complied with the order, as a condition of obtaining an enforcement decree. Southport Petroleum Co. v. National Labor Relations Board, 1942, 315 U.S. 100, 106, 62 S.Ct. 452, 86 L.Ed. 718; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 1938, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Swift & Co., 8 Cir., 1942, 129 F.2d 222, 224. See also Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 230, 59 S.Ct. 206, 83 L.Ed. 126. This is made abundantly clear by reference to the legislative history of the National Labor Relations Act. 29 U.S.C.A. § 151 et seq. See the conference report, H.Rep. No. 1371, 74th Cong., 1st Sess., p. 5."

Respondent also asserts that a disagreement has arisen between it and the Board as to the meaning of paragraph 2(a) of the order, requiring it to offer to three named employees "immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges." It therefore suggests that our enforcement decree should not follow literally the terms of the Board's reinstatement order but should be appropriately rephrased so as to put beyond doubt or ambiguity the obligation to be imposed upon respondent, citing J. I. Case Co. v. N.L.R.B., 1944, 321 U.S. 332, 341, 64 S.Ct. 576, 88 L.Ed. 762. Respondent's point is that the reinstatement order gives it an option and that its obligation thereunder is satisfied if it offers the men substantially equivalent positions. The language of the reinstatement order is in the standard form which has long been in use by the Board. See Matter of Kuehne Mfg. Co., 1938, 7 N.L.R.B. 304, 327. It has been consistently construed by the Board to require reinstatement of the employee to his former position wherever possible, but if such position is no longer in existence then to a substantially equivalent position. See Matter of Chase National Bank of City of New York, 1946, 65 N.L.R.B. 827, 829. This interpretation is in conformity with the underlying policy of § 10(c) of the Act, which contemplates "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination." Phelps Dodge Corp. v. N.L.R.B., 1941, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed....