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obligations under an order which the court had enforced in N. L. R. B. v. Kinner Motors, Inc., 152 F. 816, modified 154 F. 2d 1007.87
2. Contempt proceedings
During the past fiscal year, the Board instituted contempt proceedings in several cases in which, in its judgment, an employer had failed to comply with the decree issued by the court upon the enforcement of the Board's order. Of seven cases which went to decision, adjudications in contempt were rendered in four, and the petitions were dismissed in three.
By the end of the 1947 fiscal year, a total of 74 cases had been filed since the inception of this type of litigation in 1938.39 Fifty cases were disposed of by court action. Of these, the employers were adjudged in contempt in 36 cases, or 72 percent, and the petitions were dismissed in 14 cases, or 28 percent. Twenty-three of the total cases filed, or 31 percent, were disposed of on compliance prior to adjudication, and 1 case is still pending."
In Polish National Alliance of the United States of North America v. N. L. R. B., 159 F. 2d 38 (C. C. A. 7), the court confirmed the report in which a special master had found that the employer had not complied with the court's decree directing that two employees be offered employment equivalent to that which they had been discriminatorily torced to relinquish. In N. L. R.B.v. Standard Trouser Co.
, 162 F. 28 1012 (C. C. A. 4), the court confirmed the report of a special master in which he found that the charge that an employer, in violation of a decree, had made threatening statements to employees, discharged certain employees for union activity, and refused to bargain collectively with the Union had not been sustained by the evidence. In each case, the court applied the doctrine, embodied in Rule 53 of the Federal Rules of Civil Procedure, that the findings of a special master may be set aside only if clearly erroneous. In the Standard Trouser case, the court also enunciated the principle that, “a showing of contempt requires something more than a mere preponderance of evidence;
clear and convincing proof is necessary' The Ninth Circuit Court of Appeals, on August 20, 1946, from the bench, adjudicated in contempt an employer who had failed to comply with the decrees in two cases in which the Board obtained enforcement of its orders (N.L. R. B. v. Cheney California Lumber Co., 154 F. 2d 112; N. L. R. B. v. Cheney California Lumber Co., 149 F. 2d 333, reversed in other respects, 327 U.S. 385). In one of these cases, involving violations of section 8 (3) of the act, the court directed the payment of interest on paid back pay. In the second case, concerned with a violation of section 8 (5), the court rejected the employer's conten
37 Cf. N. L. R. B. v. Athens Mfg. Co., 163 F. 2d 255 (C. C. A. 5), where the court denied the company's motion for interpretation and construction of an order which the court had previously enforced (N. L. R. B. v. Athens Mfg. Co., 161 F. 2d 8). The court held that it was premature to interpret the order until after the company had failed to agree with the Board on the matter of compliance with the order and the Board had instituted contempt proceedings.
* These include 2 cases decided shortly after the end of the fiscal year.
2 The last set of cumulative figures appears in the Board's Eighth Annual Report (1943), at p. 63.
N. L. R. B. v. Weirton Steel Co. (C. C. A. 3). The petition was filed August 11, 1944, The taking of testimony before the special master began March 19, 1945, and was concluded on April 17, 1947. The case is now awaiting the report of the special master. Another case, Times Mirror Co. v. N. L. R. B. (C. C. A. 9), in which the employer was adjudged in contempt, is pending upon remand by the Supreme Court (331 U. S. 789), for the purpose of making findings.
tion that it should not be held in contempt in the absence of a redetermination of the majority status of the union with which it was ordered to bargain.
On March 10, 1947, the same court granted, without opinion, the Board's petition for a contempt order in The Times-Mirror Co. v. N. L. R. B., the Supreme Court, however, granting the company's petition for a writ of certiorari, vacated the order and remanded the case with directions to the lower court to make findings of fact (The Times-Mirror Co. et al. v. N. L. R. B., 331 U. S. 789.
On July 15, 1946, the Ninth Circuit Court of Appeals denied, without opinion, the Board's petition for a contempt adjudication in N. L. R. B. v. Bercut-Richards Packing Co., et al., No. 9499.
On July 25, 1947, the Third Circuit Court of Appeals, without opinion, denied a petition of the Board in N. L. R. B. v. Heilig Bros., Inc., to adjudge an employer in contempt of the broad cease and desist provision of
a decree entered in 1942 by reason of its failure to bargain collectively in 1946 with a union (other than the one involved in the original case) which had been certified as bargaining representative of respondent's employees. The employer had discontinued negotiations with the union because of an alleged threat by the union, which the union later repudiated, that it would endeavor to enforce its demands by economic coercion. The court did not indicate the grounds for its decision-whether it was the remoteness of the occurrence in question from the date of the decree, or whether the facts did not, in its opinion, spell out a violation of the decree.
In N. L.R. B. v. Weirton Steel Co., 160 F. 2d 774, the Third Circuit Court of Appeals was concerned with the terms of a subpoena duces tecum, requested by the employer in contempt proceedings pending before a special master, for the production of union records pertaining to financial and membership data. The court approved the master's direction that any records to be produced by the union should be available for the inspection of the parties only after the master had first determined their materiality to the issues in the case. Considering the limitations placed by the master upon the scope of the subpoena insufficient, the court eliminated the request for the production of membership records in toto, and approved the production of financial records only insofar as they pertained to payments made by or to persons specifically named in the subpena.
ACTIONS FOR INJUNCTIONS OR DECLARATORY JUDGMENTS
As heretofore, the courts have declined to interfere with the Board's exercise of its functions under the act by granting injunctive or declaratory relief at the instance of employers and unions.42
In Jones & Laughlin Steel Corp. v. United Mine Workers of America et al., 159 F. 2d 18, cert. denied 331 U. S. 828 (supra, p. 53, ftn. 23), the Court of Appeals for the District of Columbia affirmed a judgment by which the lower court had dismissed an action for a declaratory judgment invalidating the Board's certification of a union as bargaining representative of certain mine foremen. The Board had
41 The Times-Mirror Co., was one of the respondents in the case of N. L. R. B. v. Hearst Publications, Inc., et al., 322 U. S. 111, reversing 136 F. 2d 608 (C. C. A. 9); see Ninth Annual Report (1944), p. 54.
2 Cf. Eleventh Annual Report (1946), pp. 65–67 ; Tenth Annual Report (1945), pp. 74–75.
pointed out to the lower court that, under well-established principles, the jurisdiction of the circuit courts of appeals to review Board certifications was exclusive, and that the Declaratory Judgment Act did not enlarge the jurisdiction of the district courts over a subject matter expressly reserved to another court by the particular statute.
The United States District Court for the Eastern District of Louisiana, on Ocober 8, 1946, dissolved a restraining order and declined to enjoin the Board's agents from holding a hearing in an unfair labor practice case. Morris Steinberg et al. v. John F. LeBus et al., 71 F. Supp. 121. The plaintiffs had alleged that no employeremployee relationship existed between them and the fur trappers in whose behalf charges had been filed, and that the Board was therefore without jurisdiction to hold a hearing; that the necessity for participating in the hearing would result in losses to the plaintiff; and that they had exhausted their administrative remedies. The court, however, held that the holding of a hearing would violate no right of, and would result in no substantial irreparable injury to, the plaintiffs who had an adequate remedy at law to redress future violations of their rights which might result from any action taken by the Board.
Injunctive relief sought under the provisions of the Administrative Procedure Act of 1946,
in connection with proceedings under section 9 of the National Labor Relations Act, has likewise been denied. In Olin Industries, Inc. v. N. L. R. B., Civil Action No. 6798, the United States District Court for the District of Massachusetts dismissed an action in which an employer sought to enjoin the Board from conducting a representation hearing, on the ground that certain procedures followed by the Board had not been published in conformity with section 3 (a) of the Administrative Procedure Act and that the failure of being advised of those procedures resulted in irreparable injury to the employer. The court held that section 10 (a) and (e), on which the employer relied, did not vest it with power to grant the relief. The court pointed out that both the legislative history and the language of the statute indicate that section 10 is but declaratory of the existing law of judicial review, and does not enlarge the powers of the United States district courts either in general or in matters arising under the National Labor Relations Act. Moreover, the court stated, even if the Board were assumed to have violated section 3 (a) of the Administrative Procedure Act, the employer would not be entitled to injunctive relief within the court's general equity powers, because the employer was adequately protected by the comprehensive review powers of the circuit courts of appeals under the National Labor Relations Act.
THE expenditures and obligations for fiscal year ended June 30,
HE expenditures and obligations for fiscal year ended June 30, 1947, are as follows: Salaries
$3, 403, 508 Travel.--
470, 015 Transportation of things.
11, 367 Communication services..
98, 176 Penalty mail costs.
11, 610 Rents and utility services.
174, 743 Printing and binding--
158, 636 Other contractual services_
53, 907 Supplies and materials.. Equipment
35, 223 19, 465
Grand total obligations and expenditures for salaries and
4, 436, 650 APPENDIX A