NLRB v. Pease Oil Company, No. 164

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MEDINA and WATERMAN, Circuit , and MADDEN, , United States Court of Claims
• Citation: 279 F.2d 135
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEASE OIL COMPANY, Respondent.
• Docket Number: Docket 25805.,No. 164
• Decision Date: 26 May 1960

279 F.2d 135 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PEASE OIL COMPANY, Respondent.

No. 164, Docket 25805.

United States Court of Appeals Second Circuit.

Argued February 2, 1960.

Decided May 26, 1960.

279 F.2d 136

Duane Beeson, Atty., National Labor Relations Board, Washington, D. C. (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Fannie M. Boyls and Richard Scupi, Attys., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

James Otis Porter, Buffalo, N. Y., for respondent.

Before MEDINA and WATERMAN, Circuit Judges, and MADDEN, Judge, United States Court of Claims.^*

WATERMAN, Circuit Judge.

This is a petition of the National Labor Relations Board, pursuant to Section 10(e) of the amended National Labor Relations Act, 29 U.S.C.A. § 160(e), for enforcement of a Board order issued against respondent Pease Oil Company on April 11, 1959. The Board's decision and order are reported at 123 N.L.R.B. No. 82. Since the alleged unfair labor practices occurred in Buffalo, New York, within this judicial circuit, this court has jurisdiction over the petition under Section 10(e).

The following statement of facts is taken from the reports of the Board's examiner. Respondent is engaged in the wholesale and retail distribution of gasoline and fuel oil. On October 31, 1957 respondent had four truck drivers in its employ: Edward Place, Oscar Schurpf, Robert Strength, and Joseph Chirico. On October 29, the four drivers had applied for membership in Truck Drivers Local Union No. 449 of the Teamsters. On Thursday, October 31, the four drivers met with George Bastian, respondent's General Manager. Place acted as spokesman for his co-workers, and union membership was the central topic of discussion. The meeting ended somewhat inconclusively, but certainly without any statement from the drivers that they intended to withdraw their applications for union membership. On Monday, November 4, Place, the driver with the longest record of continuous service, was laid off. The following day Bastian held a meeting with the three remaining drivers. The two drivers of these three with the greatest seniority, Schurpf and Strength, were given wage increases of 10 cents per hour. Chirico was then excused from the meeting, whereupon Bastian asked Schurpf and Strength whether they would withdraw from the union, and Bastian indicated that a refusal to withdraw might jeopardize their future employment. On Wednesday, November 6, Chirico was called into Bastian's office and was told that his future employment with respondent depended upon his withdrawal from the union. Chirico replied that he would withdraw only if the others did. On Saturday, November 9, Schurpf and Strength notified Bastian that they did not intend to withdraw from the union. On Monday, November 11, Chirico was discharged.

The examiner found that the layoff of Place and the discharge of Chirico violated Section 8(a) (1) and (a) (3) of the Act, 29 U.S.C.A. § 158(a) (1), (a) (3), and that Bastian's conduct in various interviews with Schurpf, Strength, and Chirico constituted restraint and coercion of respondent's employees in the exercise of their statutory rights. The examiner recommended that the Board order respondent to cease and desist from these unfair labor practices and to reinstate Place and Chirico with back

279 F.2d 137

pay and with restored seniority rights. The Board adopted its examiner's findings of fact and conclusions of law, and issued the order the examiner recommended

Respondent resists enforcement of the Board's order, and, in so doing, it does not challenge the above findings of fact and conclusions of law, even though this amounts to a tacit admission of an unequivocal, even conscious, violation of the Act. Instead respondent argues that it would be "unfair" and "inequitable" to enforce the order because respondent "relied upon" the Board's jurisdictional standards in force in 1957, standards that had been announced in Jonesboro Grain Drying Cooperative, 110 N.L.R.B. 481, 483-84 (1954), and which stated that the Board would not hear complaints relating to employment in concerns having as little effect upon interstate commerce as respondent.

The phrase "jurisdictional standard," though coined by the Board itself, is a misnomer. Since the creation of the Board its statutory grant of power, i. e., its "jurisdiction" in the strict sense of that word, has extended to unfair labor practices "affecting commerce." Section 10(a) of the Act, 29 U.S.C.A. § 160(a), and see Section 2(6) and (7), 29 U.S. C.A. § 152(6), (7). Early in its history, however, the Board came to the conclusion that if it were to take cognizance of all complaints within its statutory grant of power it would be unable to decide any complaint with the thoroughness and promptitude necessary to achieve the objectives of the Act. Therefore the Board refused to hear certain complaints which clearly were within its statutory power to decide. In determining whether to hear a given complaint, a principal criterion the Board adopted was the volume of interstate commerce engaged in by the employer. Complaints which related to employment in concerns whose volume of interstate commerce fell below a certain minimum figure were refused a hearing as having an insufficient effect on commerce. Later, in an apparent effort to reduce the number of complaints reaching it, and in order to make clear the objectivity of its decision to exercise its conceded jurisdiction in a particular case, the Board determined to publish its "jurisdictional standards." See Hollow Tree Lumber Co., 91 N.L.R.B. 635, 636 (1950).

With this understanding of the purpose and function of the Board's jurisdictional standards respondent's argument can be seen to be an unusual one indeed. Concededly, at the time of respondent's unfair labor practices, the Board had announced that it would not hear complaints which involved employers as small as respondent, even though respondent's participation in interstate commerce at all times brought it within the Board's statutory power and within the directives of the Act. Thus respondent's "reliance" was simply an expectation that it might pursue whatever labor policy it saw fit, safe from any Board interference no matter how many violations of the Act it might commit. We have no hesitation in disappointing this expectation.

An Act of Congress imposes a duty of obedience unrelated to the threat of punishment for disobedience. If this were merely a suit in equity between two private litigants, we expect that respondent's violations of the law would deprive it of standing to interpose equitable defenses such as estoppel or unclean hands. See Johnson v. Yellow Cab Transit Co., 1944, 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; Shinsaku Nagano v. McGrath, 7 Cir., 1951, 187 F.2d 753, 758-759; Leo Feist, Inc. v. Young, 7 Cir., 1943, 138 F.2d 972, 975.

But of course this is not a dispute between private litigants. It has been quite properly said that because a governmental agency is charged with the protection of public interests a court should be very cautious in permitting equitable defenses to be asserted against it. See Eichleay Corp. v. N. L. R. B., 3 Cir., 1953, 206 F.2d 799, 806; N. L. R. B. v. Kingston Cake Co., 3 Cir., 1953, 206 F.2d 604, 611. The reason for this caution is clear, and particularly clear in the

279 F.2d 138

present case. What equitable considerations can respondent assert in opposition to the fact that it discharged the two drivers by violating the Act — drivers whose reinstatement with back pay the Board here seeks to compel? What equitable considerations outweigh the fact that, if we should refuse to enforce the cease-and-desist portions of the Board's order, respondent's present employees would be now as unprotected as were the two drivers

Furthermore, we conclude...