Thompson Products v. National Labor Rel. Board, 9427.

• Decision Date: 19 February 1943
• Docket Number: No. 9427.,9427.
• Citation: 133 F.2d 637
• Parties: THOMPSON PRODUCTS, Inc., v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F.2d 637 (1943)

THOMPSON PRODUCTS, Inc., v. NATIONAL LABOR RELATIONS BOARD.

No. 9427.

Circuit Court of Appeals, Sixth Circuit.

February 19, 1943.

Eugene B. Schwartz, of Cleveland, Ohio (Stanley & Smoyer, Welles K. Stanley, Harry E. Smoyer, and Eugene B. Schwartz, all of Cleveland, Ohio, on the brief), for petitioner.

Philip G. Phillips, of Cincinnati, Ohio, and Robert B. Watts, of Washington, D. C., for respondent.

Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises upon a petition for a writ of prohibition and respondent's answer to a rule to show cause why the writ should not be issued. The petition prays for an order prohibiting the National Labor Relations Board from holding a hearing under its amended complaint issued on December 9, 1942, charging the petitioner, its subsidiary, and Milton Alfred Roemisch with various violations of §§ 8(1), 8(2) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1-3), insofar as the complaint alleges a violation of § 8(2) of the Act at petitioner's Cleveland, Ohio, plant, and from any other proceedings under such allegations.

The petition is based upon the following facts: On August 1, 1941, the National Labor Relations Board, upon complaint and hearing, ordered the petitioner to cease and desist from dominating or interfering with the administration of Thompson Products, Inc., Employees' Association, and with the formation or administration of Automotive & Aircraft Workers Alliance, Inc. (hereinafter called the A. & A. W. A.), or any other labor organization of its employees and from contributing financial or other support to such labor organizations or to any other labor organization of its employees. Upon the Board's petition, this court entered a decree enforcing the order with certain modifications immaterial here. By the terms of our decree, so far as its Cleveland plant is concerned, the petitioner since August 28, 1942, has been enjoined from "dominating or interfering with . . . the formation or administration of Automotive & Aircraft Workers Alliance, Inc., or any other labor organization of its employees, and from contributing financial or other support to said labor organization or any other labor organization of its employees." National Labor Relations Board v. Thompson Products, Inc., 6 Cir., 130 F.2d 363.

Petitioner alleges that it has complied with the above decree, has disestablished the A. & A. W. A., has terminated its contract with that organization, has withdrawn all recognition from it as representative of its employees, and has posted throughout its Cleveland plant the notice prescribed by the Board's order. The amended complaint issued by the Board December 9, 1942, alleges among other things that the respondents, including the petitioner, have actively organized and established another labor organization at petitioner's Cleveland plant, which organization is known as the Brotherhood of Independent Workers, Inc. (hereinafter called the B. I. W.), "successor to the A. & A. W. A."

Petitioner contends that as it has already been ordered by the decree of this court to cease and desist from contributing financial or other support to the A. & A. W. A. or "any other labor organization" of its employees, and since the 1942 complaint charged that it, with other respondents, has contributed support and aid to the B. I. W., if these allegations are true, petitioner has violated the decree of this court, and the Board, in order to challenge such violation, must have recourse to this court for enforcement of our decree by instituting proceedings in contempt.

In support of its contention petitioner relies upon § 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), which gives this court, after petition to enforce the Board's order is filed, "exclusive" jurisdiction, and upon numerous decisions of the circuit courts of appeals and of the Supreme Court which hold that this jurisdiction includes power to enforce our decree by contempt proceedings. It is to be observed, however, that this statute gives us no jurisdiction either concurrent or exclusive before petition for enforcement is filed. Section 10(e) in effect excludes exercise of jurisdiction by us at this time, for our jurisdiction arises only after the filing of a petition for enforcement or review of an order duly entered by the Board. If the petitioner were resisting contempt proceedings instituted by the Board, the decisions cited would apply, but we think they do not govern here, where we are asked to compel the Board to abandon part of a case pending before it and to institute contempt proceedings.

Petitioner also cites Title 28 U. S.C. § 377, 28 U.S.C.A. § 377, which empowers federal courts "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." But this section gives us no power to issue such writs until our jurisdiction has attached. The Board's actions are quasi-judicial in character, and insofar properly the subject of a writ of prohibition, in case it is established that the Board has encroached upon the...