National Labor Relations Board v. Sterling Electric Motors, Inc.

On June 19, 1939, the National Labor Relations Board petitioned this court to decree the enforcement of the Board’s order of July 9, 1938, requiring respondent, Sterling Electric Motors Inc., to cease and desist from certain practices and to take certain affirmative action. Answering, respondent prayed that the order be set aside. We heard the case and, on January 9, 1940, entered a decree setting the order aside. 9 Cir., 109 F.2d 194 .

On March 9, 1940, this decree was set aside and the Board petitioned for and was granted a rehearing. At the rehearing, respondent applied for and, on April 22. 1940, was granted leave to adduce additional evidence, to be taken by the Board. Thereafter, on May 6, 1940, prior to the taking of such additional evidence, we entered a decree setting aside the Board’s order in part and, as to the remainder thereof reserving our decision. 9 Cir., 112 F.2d 63 .

The Board petitioned the Supreme Court for a writ of certiorari. While that petition was pending we vacated and set aside our decree of May 6, 1940. 9 Cir., 114 F.2d 738 . Thereupon the Board filed in the Supreme Court a motion for leave to file a petition for writs of mandamus and prohibition. On…

concurring.

My brethren are of the opinion that where such an administrative body as the National Labor Relations Board, upon a further hearing on matters recommitted to it, decides there is ho ground-to sustain its charges of employer domination of a union or of other unfair labor practices, and asks to have set aside its own orders, including one destroying an absent union’s right of collective bargaining, that is an adequate reason for a decree granting its request. I am in agreement with this, but prefer to concur on the additional ground of the lack of jurisdiction in personam over the Association for an order disestablishing it and depriving it of its right of collective bargaining.

As we have stated (9 Cir., 112 F.2d 63, 68 ) we cannot be blind to the tragedy of the destruction of the democracies of Western Europe nor can we now ignore the fact that we are entering a long period when, in the stress of defense of our own, our citizens will feel constrained to submit voluntarily to an emergency exercise of an administrative absolutism abhorrent in peace time. When that long period is passed, our tribunals exercising such powers will be reluctant to yield them. They will1…