Stewart Die Casting Corp. v. National Labor R. Board

• Decision Date: 17 August 1942
• Docket Number: No. 7132.,7132.
• Citation: 129 F.2d 481
• Parties: STEWART DIE CASTING CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

129 F.2d 481 (1942)

STEWART DIE CASTING CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 7132.

Circuit Court of Appeals, Seventh Circuit.

June 5, 1942.

Rehearing Denied August 17, 1942.

Silas H. Strawn, Frank H. Towner, and Thomas S. Tyler, all of Chicago, Ill., for petitioner.

Thomas L. Owens, of Chicago, Ill. for Local 298, United Automobile Workers of America, intervenor.

A. Norman Somers and Robert B. Watts, both of Washington, D.C., I. S. Dorfman, of Chicago, Ill., and Ernest A. Gross, Associate Gen. Counsel., of Washington, D. C., for respondent N. R. L. B.

Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

This is a labor proceeding, wherein Local No. 298, U.A.W.A. moves (1) for leave to intervene, and (2a) for an order modifying our decree of October 18, 1940, of enforcement of the Labor Board's order against the Stewart Die Casting Corporation, or (2b) in the alternative, for an interpretation of our said order.

The aim of the local is to secure mandatory recognition as the employees' bargaining representative without the holding of the election, which was made a prerequisite of such recognition in our order.

Aside from the issue of the Union's right to intervention, we have the narrow issue as to whether we may modify our decree of enforcement after the term at which it was entered, has expired. The National Labor Relations Board expressly takes no position on this matter.¹ The Company opposes any change in our order on the grounds (1) that the proviso in question was suggested as an amendment to the form of order submitted to it by the Board, and the Board acceded to the suggested amendment; (2) the Union is, in effect, seeking an enforcement of the order, which it has no standing in court to demand, under the decision of the Supreme court in Amalgamated Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S. Ct. 561, 84 L.Ed. 738.

More specifically, the Local asks us to delete from paragraph 2 (g) of our order of October 18, 1940, the proviso herewith quoted and italicized:

"2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: * * *

"(g) Upon request, bargain collectively with United Automobile Workers of America, Local 298, as the exclusive representative of all its hourly and piece rate production employees, draftsmen, and watchmen, in respect to rates of pay, wages, hours of employment, and other conditions of employment, in the event that hereafter in a proceeding under Section 9 (c) of the National Labor Relations Act 29 U.S. C.A. § 159 (c), the United Automobile Workers of America, Local 298, is designated as, representing a majority, in the appropriate unit, of Petitioner's employees and is so certified by the Board as such representative following an election; * * *"

In the alternative, the Union prays: "that this Court interpret said decree of October 18, 1940, in the light of the recent decisions of the Supreme Court of the United States to the end that the Petitioner, Stewart Die Casting Corporation, will be required to bargain collectively with said Local 298 as the exclusive representative of Petitioner's employees in the appropriate unit, and that said Stewart Die Casting Corporation be obligated to bargain collectively with said Local 298, without waiting for an election as provided in said Paragraph 2 (g) of the said decree of this court."

Our opinion on the merits (on the petition by the Company for review, and on the request by the Board for an order of enforcement) was announced July 3, 1940 (114 F.2d 849) at our October, 1939, Term (April, 1940, Session). The Board submitted a draft order of enforcement, to which the Company filed objections and requested a modification. The Board, on August 2, 1940, answered the Company's proposed amendment and stated "the Board consents to the modification of paragraph 2 (g) of the proposed decree as suggested * * *." Our order was issued October 18, 1940, which was during the October, 1940, Term of court. The Company applied for certiorari, which was denied January 13, 1941. Our order of enforcement of October 18, 1940, was not stayed pending the petition for certiorari.

Controversy was and is over the requirement of an election which the Board has failed to call, although on December 9, 1941, the Union petitioned the Board for an election. We therefore have a situation where (a) the local union demands that it be recognized as the bargaining agent; (b) the employer insists that the union be first designated by the employees at an election; (c) the Board declines to call an election.

The employer asserts that the reason back of the Board's action and the Union's effort to modify the order so as to avoid the necessity of an election, is the Union's inability to show a majority or a plurality of employees who are willing to select the Union as their agent.

The Union sought leave to intervene, at the hearing on the merits, but such leave was not granted, although it was permitted to file a brief, which it did.

The Union argues that enforcement orders should not be conditioned upon the holding of an election to determine the Union's status.² The Board supports this view and asserts the broad position, "that the Board may disregard any change of representative made while unfair labor practices, including refusals to bargain, remain unremedied for the reason that, in such circumstances, the employees might still be subject to improper restraints and not have the complete freedom of choice which the Act contemplates."

Assuming for the purpose of the argument the soundness of this view, and assuming that the proviso in paragraph 2 (g) was unauthorized and improper, have we the power to wipe out the proviso, and if we have, should it be exercised? These are the questions before us.

In determining what is our authority in this and like cases, which are arising constantly now, we are first confronted by the rule of law that a court has no jurisdiction to modify its final order after the expiration of the term at which it was entered.³ The Supreme and inferior Federal courts have so held countless times.

The rigidity of this rule has now been lessened, if not wiped out, so far as the District Courts are concerned, by Rule 6(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides: "The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it."

Rule 60 provides:

"Clerical mistakes in judgment, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

"On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken."

But these rules, whatever their scope, have no application to the Circuit Court of Appeals (Nachod et al. v. Engineering Research Corp., 2 Cir., 108 F.2d 594, holding specifically Rule 6 (c) does not apply to C.C.A.), and therefore the loss of jurisdiction with the ending of the term at which the order was entered, still applies unchanged to this court's judgments and decrees.

To support its position, the Union relies on Solvay Process Co. v. N.L.R.B., 5 Cir., 122 F.2d 993. We believe that case differs from the instant one in that the application for modification must there have been made during the same term as the original decree. We reach this conclusion from the fact that the decree sought to be modified was entered, March 27, 1941, and the opinion granting modification was announced October 7, 1941. The application was made at least some time before the announcement of the opinion. The Fifth Circuit's Rules, Rule 3, provides that its annual term at New Orleans, Louisiana, should begin on the third Monday in November, which is later than the modification of the opinion. From this, we conclude that the modification occurred at the same term as that at which the original decree was entered.

The Union also cites this court's per curiam opinion in McQuay-Norris Co. v. N.L.R.B. 7 Cir., 119 F.2d 1009, wherein we held the court had power to modify a decree theretofore entered by it in a labor case. In that case, however, as in the Solvay case, the modification was made in the same term as that of the entry of the original decree.

We are aided in the decision of this case by the very apt and enlightening opinion of the Court in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 462, 76 L.Ed. 999. It involved a consent decree of injunction in a suit by the United States under the Sherman Anti-Trust Act, 15 U. S.C.A. §§ 1-7, 15 note, by which decree a monopolistic combination of meat packers was dissolved, and the individual units were enjoined from trading in certain foodstuffs outside the meat industry. The packers alleged that changed conditions in the food industry warranted a modification of the decree.

The Court drew the very logical distinction between injunctions, executory in nature, which might, under limited conditions, be modified, and injunctions predicated upon rights fully accrued which could not be subsequently changed.

We quote from this opinion:

"* * * Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of...