Ross Packing Co. v. United States

• Decision Date: 20 January 1942
• Docket Number: No. 76.,76.
• Citation: 42 F. Supp. 932
• Parties: ROSS PACKING CO. v. UNITED STATES.
• Court: U.S. District Court — District of Washington

42 F. Supp. 932

ROSS PACKING CO. v. UNITED STATES.

No. 76.

District Court, E. D. Washington, S. D.

January 20, 1942.

Bonsted & Nichoson, of Yakima, Wash., for plaintiff.

Lyle Keith, U. S. Dist. Atty., and Harvey Erickson, Asst. U. S. Dist. Atty., both of Spokane, Wash., for defendant.

SCHWELLENBACH, District Judge.

On March 4, 1939, plaintiff was ordered by the National Labor Relations Board to pay to the United States Treasury certain monies which had been received by one of its employees, the re-instatement of whom was ordered by the Board, for work performed during the period between his discharge by the plaintiff and his order for re-instatement for the Works Projects Administration in the State of Oregon. The amount which such employee received was settled and determined by the plaintiff and the employee and confirmed by the State Administrator of W. P. A. Thereupon, it was paid. Thereafter, on November 12, 1940, the Supreme Court of the United States determined that such an order by the Labor Board was illegal. Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 78, 85 L.Ed. 6. This action for the return of the sum thus paid was commenced under the so-called Tucker Act of 1887, Title 28 U.S.C.A. § 41, subd.(20). To the complaint defendant has interposed in the alternative a motion to dismiss or for a summary judgment in favor of the defendant. I will consider the two motions jointly.

The decision of the Supreme Court in the case of Republic Steel Corporation v. National Labor Relations Board, supra, was based upon the conclusion that an order such as plaintiff herein complied with was illegal for the reason that such an order required the payment of an unauthorized penalty. Certain excerpts from the opinion by Chief Justice Hughes are pertinent:

"The payments to the Federal, State, County, or other governments concerned are thus conceived as being required for the purpose of redressing, not an injury to the employees, but an injury to the public * * *. So conceived, these required payments are in the nature of penalties imposed by law upon the employer, — the Board acting as the legislative agency in providing that sort of sanction by reason of public interest. * * * The question is, — Has Congress conferred the power upon the Board to impose such requirements.

"We think that the theory advanced by the Board proceeds upon a misconception of the National Labor Relations Act * * *. The Act is essentially remedial. It does not carry a penal program declaring the described unfair labor practices to be crimes. The Act does not prescribe penalties or fines in vindication of public rights or provide indemnity against community losses as distinguished from the protection and compensation of employees. * * *

"We do not think that Congress intended to vest in the Board a virtually unlimited discretion to devise punitive measures, and thus to prescribe penalties or fines which the Board may think would effectuate the policies of the Act."

In support of its motions, defendant makes the following contentions:

1. That the complaint is fatally defective because of the failure to join the discharged employee as a party defendant. Such contention is without foundation. There is no controversy now in which such employee could possibly be interested. The employee cannot benefit or lose by the outcome of this action. The order of the Board created no private right in the employee. National Labor Relations Board v. Hearst, 9 Cir., 102 F.2d 658. Report No. 972, Committee on Labor, House of Representatives, 74th Cong. p. 21.

2. Defendant contends that the payment plaintiff made to the Treasury was the result of a compromise agreement entered into on April 21, 1939, between the plaintiff on the one side and the employees union and two of the employees on the other side. Arguing therefrom, defendant urges the well-established rule that courts will not set aside compromises entered into to effect the settlement of litigation. In support of this position, defendant cites a few of the innumerable cases so holding. Mason v. United States, 84 U.S. 67, 17 Wall. 67, 21 L.Ed. 564; United States v. Child & Co., 79 U.S. 232, 12 Wall. 232, 20 L.Ed. 360; Hord v. United States, Ct.Cl., 59 F.2d 125; Duncan v. United States, D.C., 39 F.Supp. 962. Defendant urges that because the agreement of April 21, 1939, was entitled "Settlement and Compromise Agreement," that I am bound to so construe it. The fact is that this was not a compromise. The giving to it of the name of compromise could not make of it a compromise. The word "compromise" itself contemplates a mutuality of concessions for the purpose of the termination of litigation. In Ballentine's Law Dictionary, we find this definition:

"An agreement or arrangement by which, in consideration of mutual concessions, a controversy, either in court or out of court, has been terminated."

"A compromise is an agreement between two or more persons who, to avoid a law suit, amicably settle their difficulties on such terms as they can agree upon." 15 C.J.S. 711.

This was no compromise within the meaning of the rule. The Labor Board had ordered the plaintiff to "make whole said Mrs. Lillian Ayers and Marvin Howard for any loss of pay they may have suffered by reason of their respective discharges by payment to each a sum of money equal to that which he would normally have earned as wages during the period from the date of discharge to the date of such offer of reinstatement less his net earnings during said period, deducting, however, from the amount otherwise due to each of said employees, monies received by said employee during said period for work performed upon Federal, State, County, municipal or other work relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, County, municipal or other government or governments which supplied the funds for such said relief projects." Such order having been issued, the plaintiff sat down with the two employees and the labor union for the purpose of ascertaining and determining the amounts due under such order. As was said in the agreement of April 21, 1939, the parties "settled and determined as of said date the gross amount of third parties earnings during said period in the sum of $253.00 earned by him from the following sources:

                W.P.A. Salem, Oregon, office.....   $228.00
                Private employment earned prior to
                  hearing of the within proceeding    25.00
                    Total ........................   253.00
                

the amount of said W. P. A. earnings having been this day confirmed by letter of E. J. Griffith, State Administrator, Portland, Oregon."

There was no element of mutual concessions. All that was done was to settle and determine the amounts which plaintiff was compelled to pay if it complied with the Board's order. This situation is not inherently different from one that commonly occurs at the conclusion of a trial. The court decides that judgment will be entered in favor of one party as against the other on the basis of the conclusions he has reached. He then requests the parties, through their respective counsel, to consult and agree among themselves as to the amount of such judgment. No one would seriously contend that because the parties to the lawsuit did consult and did settle and determine the amount, in accordance with the court's ruling, that it was a compromise which barred either side from its right of appeal.

3. Defendant contends that, since the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., provides that the judicial participation in its processes must commence with the Circuit Court of Appeals, that an action of this kind must necessarily be commenced in the Circuit Court of Appeals. Such contention is without substance. In an action involving the National Labor Relations Act, the original jurisdiction acquired by the Circuit Court of Appeals is exclusively in respect to provisions authorizing it to enforce, modify or set aside orders of the National Labor Relations Board. Donnelly Garment Co. v. International Ladies' Garment Workers' Union, 8 Cir., 99 F.2d 309, certiorari denied 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430. It is true that in that case the question involved was the relationship between the Labor Relations Act, 29 U.S.C.A. § 160, and the Norris-LaGuardia Act, 29 U.S. C.A. §§ 101-115, but the same principle is controlling here. That being true, clearly the Circuit Court of Appeals would have no original jurisdiction to entertain this action.

4. In addition to the foregoing contentions, defendant has cited two cases, a separate discussion of which is necessary here.

In Deppe v. Lufkin, 1 Cir., 116 F.2d 483, the action was to recover fines imposed by the Secretary of Labor under the Immigration Act of 1924, 8 U.S.C.A. § 167(a), for failure of the Steamship Company to detain alien members of its ship's crew who were not bona fide seamen. The statute required the notice to detain such seamen to be served on the owner or agent of the owner. The notice in this case was served on the master. The statute required the notice of liability to be served on the master. In this case, such notice was served on the agent of the owner. Thereafter, a fine was levied which was paid without protest. Six years later, after the time for the rectification of the government's procedural errors had expired, the action was commenced. There was nothing illegal about what the government's agents did. The defect consisted purely of technical, procedural errors. There was nothing in the Tucker Act which would support a recovery.

The case of Hartsville Oil Mill v. United States, 271 U. S. 43, 46 S.Ct. 389, 391, 70 L.Ed. 822, does not involve the Tucker Act. It got before the Court of Claims through the medium of a Senate Resolution authorizing that court to consider the claim involved and report its conclusions concerning it to the Senate....