National Labor Relations Board v. Red Spot Electric Co.

191 F.2d 697 NATIONAL LABOR RELATIONS BOARD v. RED SPOT ELECTRIC CO. et al. No. 12804. United States Court of Appeals Ninth Circuit. June 20, 1951. A. Norman Somers, Asst. Gen. Counsel, NLRB, Washington, D. C., Louis S. Penfield, Attorney, NLRB, San Francisco, Cal., for petitioner. 1 No other appearances were entered. 2 Before ORR and POPE, Circuit Judges, and FEE, District Judge. 3 JAMES ALGER FEE, District Judge. 4 The National Labor Relations Board moves for summary entry of decree of enforcement of an order of the Board, which was entered by rule, and which automatically, without examination, adopted the intermediate report of the Trial Examiner, wherein it was found that respondent was engaged in commerce, had in violation of the Act discriminatorily discharged sixteen employees and had interfered with, restrained and coerced employees in the exercise of rights guaranteed by the Act. The action of the Board in adopting automatically the intermediate report is explicitly authorized by regulations 1 based upon a section of the Act, 2 where, as here, the respondent did not file exceptions thereto. No appearance has been made by respondents in this Court. 5 In this posture of the…

The National Labor Relations Board moves for summary entry of decree of enforcement of an order of the Board, which was entered by rule, and which automatically, without examination, adopted the intermediate report of the Trial Examiner, wherein it was found'that respondent was engaged in commerce, had in violation of the Act discriminatorily discharged sixteen employees and had interfered with, restrained and coerced employees in the exercise of rights guaranteed by the Act. The action of the Board in adopting automatically the intermediate report is explicitly authorized by regulations 1 based upon a section of the Act, 2 where, as here, the respondent did not file exceptions thereto. No appearance has been made by respondents in this Court.

In this posture of the case, it is strongly urged that this Court has no authority to examine the record, but is imperatively compelled to order enforcement summarily.' There is no language in the enactment which points to the conclusion so desired. The whole structure of the law demands judicial consideration when an order of enforcement is prayed. 3 If mechan *699 ical sanctions were required, these could have been provided without the…

(concurring).

I approve the judgment of the court as announced in the majority opinion, and agree that upon a petition of this kind we should carefully examine the record for the purpose of determining that the Board had jurisdiction to make its order and that it has *700 not “traveled outside the orbit of its authority”. Such procedure is in conformity with the ancient practice of courts of equity when asked to enter a default decree.

With respect to other matters stated or suggested by the opinion', I do not think that the rule of National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385 , 66 S.Ct. 553 , 90 L.Ed. 739 , has been modified either by the language of the statute or by anything said in Universal Camera Corp. v. Labor Board, 340 U.S. 474 , 71 S.Ct. 456 , or in Labor Board v. Pittsburg SS. Co., 340 U.S. 498 , 71 S.Ct. 453 . The language of § 10(e) of the Act quoted and relied upon in the Cheney Lumber Company case has not been changed in the later Act.