National Labor Relations Board v. Kobritz, 4581.

• Decision Date: 16 January 1953
• Docket Number: No. 4581.,4581.
• Citation: 201 F.2d 156
• Parties: NATIONAL LABOR RELATIONS BOARD v. KOBRITZ.
• Court: U.S. Court of Appeals — First Circuit

201 F.2d 156 (1953)

NATIONAL LABOR RELATIONS BOARD v. KOBRITZ.

No. 4581.

United States Court of Appeals First Circuit.

January 16, 1953.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Arnold Ordman and Ruth V. Reel, all of Washington, D. C., on brief, for petitioner.

Benjamin E. Gordon and Maurice Epstein, both of Boston, Mass., on brief, for respondent.

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

PER CURIAM.

On December 17, 1951, this court issued its decree enforcing an order of the National Labor Relations Board requiring respondent Kobritz to cease and desist from various unfair labor practices and to take certain affirmative action, including reinstatement of discharged employees with back pay. 193 F.2d 8. So far as appears, respondent has complied with the decree, except that the back pay has not yet been paid, the amount due being subject to determination in a supplemental administrative hearing now in progress before the Board. Of course our decree is still outstanding and operative as an injunction.

Now, one year after the entry of our decree, respondent has petitioned us to vacate it on the technical ground, here for the first time raised, that the union happened to be temporarily out of compliance with the filing requirements of § 9(f), (g) and (h) of the National Labor Relations Act, as amended, 61 Stat. 145, 29 U.S.C.A. § 159 (f-h), on January 16, 1950, the day the Board issued its complaint against respondent. This information was obtained by respondent by the simple expedient of addressing an inquiry to the Board's Regional Director at Boston on September 17, 1952, to which the Regional Director responded fully two days later. Respondent offers no excuse for his failure to obtain this information earlier and to call it to our attention when the Board's petition for enforcement of its order was pending before us. See N. L. R. B. v. Greensboro Coca Cola Bottling Co., 4 Cir., 1950, 180 F.2d 840, 844-45, footnote 1. Indeed, so far as appears, respondent could have obtained this information and raised the objection while the administrative proceeding was pending before the Board, in which case the Board could have remedied the defect by vacating the complaint issued January 16, 1950, and issuing a new complaint after the union got back into compliance again. The Board readily concedes that the issuance of the original complaint was in error (due to inadvertence and oversight), in view of the mandatory provisions of § 9(f), (g) and (h) of the Act, as amended, and of the Board's procedural regulations issued in conformity thereto (13 F.R. 4871).

From the information furnished by the Regional Director, it appears that Local 385, Amalgamated Meat Cutters and Butcher Workmen, AFL, was in compliance with the filing requirements at the time when it filed the charge and subsequent amended charges. Indeed, it was in compliance at all relevant stages of the proceeding except on January 16, 1950, when the complaint was issued. We are informed by the Board that it not infrequently happens that a union completely above suspicion of Communist domination...