NLRB v. Kostilnik

• Decision Date: 16 January 1969
• Docket Number: No. 17121.,17121.
• Citation: 405 F.2d 733
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Rosalia KOSTILNIK, Executrix of the Estate of Michael Kostilnik, d/b/a Pacific Baking Company, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

405 F.2d 733 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Rosalia KOSTILNIK, Executrix of the Estate of Michael Kostilnik, d/b/a Pacific Baking Company, Respondent.

No. 17121.

United States Court of Appeals Third Circuit.

Submitted December 16, 1968.

Decided January 16, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Michael N. Sohn, Thomas Silfen, Attys., NLRB, on the brief), for NLRB.

Michael Hahalyak, Robert T. Salera, Pittsburgh, Pa., for respondent.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1964), has petitioned this court for enforcement of an order based on findings by the trial examiner that the respondent violated certain provisions of section 8 of the Act, 29 U.S.C. § 158 (1964), more specifically:

(1) Section 8(a) (1) by threatening employees for joining or assisting a union, Bakery and Confectionery Workers\' International Union of America, Local No. 12, by promising benefits to employees to induce them to renounce the union, and by "coercively interrogating" an employee concerning his attitude toward the union;

(2) Section 8(a) (3) and (1) by discharging several employees because of their membership in or activities on behalf of the union; and

(3) Section 8(a) (5) and (1) by refusing to recognize and bargain with the union.

The Board's unreported order directed respondent to cease and desist from the unfair labor practices found, to post specified notices on the premises, to offer discharged employees reinstatement with back pay, to preserve and make available any business records necessary to compute back pay and, upon request, to recognize and bargain with the union as the representative of the respondent's employees.

Respondent did not file any exceptions to the findings and recommendations of the trial examiner, which were thereupon adopted as the order of the Board on November 27, 1967, pursuant to section 10(c) of the Act, 29 U.S.C. § 160(c) (1964). In its answer to the Board's petition for summary enforcement of the order by this court, respondent alleged that it is "no longer in business and will not continue in said business."¹ The issue thus raised is whether the Board's order is mooted, in whole or in part, by the allegation that respondent has discontinued its business operations.²

The question of mootness of a Board order was raised in NLRB v. Weirton Steel Co., 135 F.2d 494 (3d Cir. 1943), where the respondent-company had voluntarily dissolved and ceased to exist. There we held that the order would be enforced upon the successors of the respondent in order to fulfill the purposes of the Act. We hold here that the policy of the Act does not require a different result based upon the alleged factual distinction that the business of the respondent has ceased and there appears to be no successor. In so doing we join the Second Circuit which, in similar circumstances, said: "There is no merit to respondent's contention that, since the question has been rendered `academic' by reason of his going out of business, we ought not to grant enforcement of the Board's order." NLRB v. Haspel, 228 F.2d 155, 156 (2d Cir. 1955), accord, NLRB v. Lamar Creamery Co., 246 F.2d 8 (5th Cir. 1957); NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6th Cir. 1963);³ NLRB v. Acme Mattress Co., 192 F.2d 524 (7th Cir. 1951); NLRB v. Dixon, 184 F.2d 521 (8th Cir. 1950).⁴

We conclude that the fact that a respondent has terminated its business is irrelevant in a petition by the Board for immediate and full enforcement of an order: NLRB v. Lamar Creamery Co., supra 246 F.2d at 10. Moreover, the courts should not recommit the order for consideration by the Board of respondent's allegations of impossibility of compliance: Southport Petroleum Co. v. NLRB, 315 U.S. 100, 105, 62 S.Ct. 452, 86 L.Ed. 718 (1942).⁵ After the order is enforced by this court, the Board may determine in a subsequent proceeding whether compliance is fully possible. In any event, impossibility may be raised by respondent as a defense if a contempt action is brought against her by the Board: NLRB v. Dixon, supra 184 F.2d at 523, supplemented in NLRB v. Dixon, 189 F.2d 38, 39 (8th Cir. 1951); NLRB v. Haspel, supra 228 F.2d at 156; Retail Clerks International Ass'n Local 880 v. NLRB, 125 U.S.App.D.C. 63, 366 F.2d 642, 646 n. 8 (D.C.Cir. 1966).

We are in full accord with the Board's declaration of policy⁶ in its brief (p. 4) that,

In order to protect the public interest in prohibiting and discouraging the commission of unfair labor practices, the Board is entitled to have its orders enforced despite claims that the respondent has discontinued operations.

The petition of the Board for enforcement of its order is granted.

1 The full answer of respondent was as follows:

Respondent Rosalia Kostilnik avers that the above proceeding and petition are moot for the reason that the said Pacific Baking Company is no longer in business and will not continue in said business. This fact of its non-existance sic was brought to the attention of all the parties in this proceeding and for this reason no action had been taken in the way of exceptions to the decree, etc.

Our review of the record fails to disclose any indication that respondent went out of business prior to the date of the trial examiner's decision. The record does show some threats by respondent to go out of business, and the trial examiner does state in his decision (p. 5) that on January 26, 1967, respondent discontinued the retail store and restaurant which were conducted as an adjunct to the West Mifflin, Pennsylvania, bakery which distributed baked goods at wholesale. It would appear, therefore, that the complete termination of the business, alleged by the respondent, must have occurred some time between October 23, 1967, the date of...