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350 U. S. 107

113

tempt as the ultimate sanction to secure compliance with Board orders.* The granting or withholding of such remedial action is not wholly discretionary with the court. This is true not only under the National Labor Relations Act but also under general principles of equity jurisprudence.

It seems clear to us that in the light of these principles and the facts of this case, the court below exceeded the allowable limits of its discretion in denying relief to the Board and that its judgment must be reversed and remanded for proceedings in conformity with this opinion.

Reversed and remanded.

4 N. L. R. B. v. Mexia Textile Mills, 339 U. S. 563. McComb v. Jacksonville Paper Co., 336 U. S. 187.

• International Salt Co. v. United States, 332 U. S. 392; Union Tool Co. v. Wilson, 259 U. S. 107; Penfield Co. v. Securities and Exchange Commission, 330 U. S. 585.

N. L. R. B. v. Efco Manufacturing, Inc.

227 F. 2d 675 (C. A. 1), December 13, 1955; certiorari denied 350 U. S. 1007-108 N. L. R. B. 245 and 111 N. L. R. B. 1032

On petition to enforce Board Order and Supplemental Order Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges

675

HARTIGAN, C. J.: This is a petition by the National Labor Relations Board pursuant to Section 10 (e) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S.

676

C. A. § 141 et seq., for enforcement of its order and supplemental order against respondent, Efco Manufacturing, Inc., East Greenwich, Rhode Island.

A previous order of the Board issued July 31, 1952, directing respondent to cease and desist from its refusal to bargain with the certified union, United Steelworkers of America, CIO, was enforced by this court on April 22, 1953. N. L. R. B. v. Efco Mfg., Inc., 1 Cir., 1953, 203 F.2d 458.

Respondent does not argue the propriety of the order issued on April 15, 1954, based in part upon findings that "*** the strikers, being unfair labor practice strikers, were entitled to immediate reinstatement

***

227 F. 2d 675 (C. A. 1)

upon application
Arnold directing his reinstatement with back pay.

except as such order relates to Charles W.

Neither does the respondent argue the propriety of the supplemental order issued on March 21, 1955, except as such order relates to Charles W. Arnold and James Cummiskey, directing that they be paid $1995.59 and $1473.58 in back pay respectively.

With respect to Arnold the respondent contends that "*** his illegal conduct during the strike should disqualify him from consideration for back pay but in any event the evidence fails to support the conclusion that during the critical period he earned less than if he had been working for respondent ***”

As to Cummiskey, respondent contends that he “*** is entitled to no back pay because he voluntarily removed himself from the labor market and under established principles of law thus disqualified himself from consideration."

It is established that the strike in which Arnold, Cummiskey, and others were engaged was a strike resulting from the unfair labor practices of the respondent. Under these circumstances where the activities of the striking employees are such as to be protected by §7 of the Act, the general rule is that employees are entitled to reinstatement with back pay even if permanent replacements must be discharged. N. L. R. B. v. Remington Rand, Inc., 2 Cir., 1942, 130 F. 2d 919, 927.

Respondent seems to contend that Arnold, by his conduct, put himself beyond the protection afforded by §7 of the Act. It bases its contention upon three incidents which allegedly occurred during the strike: (1) on the picket line Arnold insulted a non-striker by using coarse and vulgar language; (2) he laughed when a striker in whose car he was a passenger cut too sharply in front of the car of the plant manager, causing the latter to swerve sharply to avoid a collision; (3) he threatened the plant manager with a beating.

Perhaps the Board in the exercise of its discretion could have concluded that these incidents were serious enough to warrant denial of reinstatement. But we do not think that any one or all of them, if they occurred, require denial of reinstatement by the Board as a matter of law. Without pausing to consider the first two incidents, we turn briefly to the more serious charge that Arnold threatened the plant manager with a beating. The trial examiner took a somewhat less drastic view of this incident. He found, and the record amply supports his finding, that Arnold's conduct was properly to be characterized as "impolite". On the basis of this finding we have no such case as where an employee puts his employer in direct fear of an imminent beating. We have only a display of insolence and we agree

with the Board that
tected by the Act.
185 F.2d 413.

227 F. 2d 675 (C. A. 1)

despite this Arnold was engaged in activities pro-
Kansas Milling Co. v. N. L. R. B., 10 Cir., 1950,

With respect to the supplemental order fixing the amounts of back
pay due Arnold and Cummiskey we find that there is substantial evi-
dence on the record considered as a whole supporting the amounts of
these awards.

A decree will be entered enforcing the order and supplemental order
of the Board.

Optical Workers' Union Local 24859 et al. v. N. L. R. B.
227 F. 2d 687 (C. A. 5), December 13, 1955, rehearing denied 229
F.2d 170; certiorari denied 351 U. S. 963-110 N. L. R. B. 604

On petition to review Board Order

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN,
Circuit Judges
688

TUTTLE, C. J.: Local 24859, Optical Workers Union, AFL, and
thirty-four members thereof here seek review of a National Labor
Relations Board order dismissing the union's petition for certification
as bargaining agent for the employees of Rogers Brothers Whole-
salers, a Texas partnership, and a complaint issued against the part-
nership for unfair labor practices. The dismissal was pursuant to the
Board's policy, announced June 30, 1954, whereby it will not hear
cases falling within its statutory jurisdiction over labor disputes
"affecting commerce," 3 if the nature or volume of the business of the
employer involved do not meet certain admittedly more stringent
requirements.

In this case, the volume of the employer's business satisfied the
Board's prior jurisdictional limitations, laid down in October, 1950,*
and the proceedings under these criteria had gone forward to the
point where the certification petition and the unfair labor practice
complaint had been consolidated for a single hearing, which had been
held before a Trial Examiner. From the evidence there adduced, the
Trial Examiner had made findings of fact concerning the employer's
volume of business and the unfair labor practices for which the union
seeks relief, and had recommended that the employer be ordered to
cease and desist from these unfair labor practices and that it also be

1 By petition filed pursuant to 29 U. S. C. A. § 160 (f).

2 See N. L. R. B. v. National Gas Co., 8 Cir., 215 F. 2d 160, 162, footnote 1.

329 U. S. C. A. §§ 151, 152 (6) and (7).

See Note, 62 Yale L. J. 116.

227 F. 2d 687 (C. A. 5)

ordered to recognize and bargain with the union as the exclusive representative of its employees.

While the Trial Examiner's report was awaiting action by the Board, the Board

689

promulgated its present jurisdictional limitations. Accordingly, when the case came before it, it adopted the Trial Examiner's findings and conclusions "to the limited extent that they are consistent with this Decision and Order"--but dismissed the complaint and the representation petition because the employer's volume of business did not satisfy the new standards. 100 N. L. R. B. 604.

The petitioners here urge that the Board, while having the authority to decline jurisdiction over particular labor disputes on a case-by-case basis, cannot adopt a rule "legislating" a substantial number of employees and employers out of the administration of the Act. In the alternative, they contend that the rule adopted is an arbitrary one. Finally, they argue that it cannot be applied retroactively, because, they say, the Trial Examiner's finding that the employer was engaged in commerce within the meaning of the Act established N. L. R. B. jurisdiction as the law of the case.

At the outset, it will be observed that all of these objections stem from a view of the Board's powers and functions as legislative and judicial, or quasi-legislative and quasi-judicial, in character. These analogies, however, while they have been at times useful and convenient in explaining the law relative to administrative agencies, are not always valid or true to the fundamental principles which they are intended to serve.

It is true that some agencies, whose histories extend back to the early development of administrative law in this country, have had their powers and functions molded by decisional law into forms resembling the leading available models at the time, i. e., courts and legislatures. This mode of analysis did not prevail without well-reasoned dissent, however, and administrative agencies created under the later law were not given a judicial construction of their powers so closely simulated to these older forms.

Characteristic examples of this development may be found in the experience of the Interstate Commerce Commission and the Securities and Exchange Commission. Under the Interstate Commerce Act, railroad carriers were required to file schedules of rates with the Interstate Commerce Commission, and the granting of any lesser rate was declared to be unlawful. These rates were required to be reasonable,

$49 U. S. C. A. § 10.

227 F. 2d 687 (C. A. 5)

however, and the ICC had the authority to order reparation for rates it found to be excessive. The Hepburn Act and the Transportation Act granted the ICC the further power of establishing maximum and minimum rates which carriers could charge."

In exercising these powers, the ICC on July 15, 1915, authorized a rate not exceeding $1.20 a ton for coal shipped from Alabama mines to Meridian, Mississippi. Thereafter, it granted several general increases and recommended one general reduction, without specifically authorizing an increase in this particular rate. The Southern Railway Co. and others, however, raised this rate whenever a general increase was allowed, and decreased it when the general reduction was recommended. The rate thus being charged by the carriers in 1925 was $2.03 a ton, and the Eagle Cotton Oil Company thereafter brought an action before the ICC for reparation, on the ground that this rate was excessive. The ICC ruled that the rate was excessive to the extent that it exceeded $1.85 from certain mines and $1.95 from other mines, prescribed these rates as reasonable for the future, and awarded reparation for the amount of the charges exceeding the $1.85 and $1.95 rates, for a period beginning two years before the proceeding was initiated

690

by the shipper. The district court refused to enforce the award for damages, reasoning that the Commission could not retroactively reverse its prior ruling that $2.03 per ton was a reasonable rate.

This court reversed on the narrow ground that the $2.03 rate had not been fixed or prescribed by the Commission. Judge Hutcheson, concurring specially, said that although the $2.03 rate had not been "specifically promulgated by the Commission", "I think it equally plain that, speaking generally, the rate had received the Commission's approval and sanction." He concluded that the ICC had "through a long course of practice *** built up and established * * * a character of flexibility in the matter of the approach to *** rates and practices*** in which the principle of res judicata or estoppel by decision has had and can have no just place." Eagle Cotton Oil Co. v. Southern Ry. Co., 5 Cir., 51 F.2d 443, 445, 446.

This view was rejected by the Supreme Court in Arizona Grocery Co. v. Atchinson, Topeka & Santa Fe Ry. Co., 284 U. S. 370, 52 S. Ct. 183, 76 L. Ed. 348. The Court there analyzed the ICC's function under the Interstate Commerce Act as judicial in character, and under the Hepburn Act and the Transportation Act as legislative in character. It said that the two functions could be combined, but that

• Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 S. Ct. 350, 51 L. Ed. 553. 749 U. S. C. A. § 6 (13) (c).

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