NATIONAL LABOR RELATIONS BOARD v. OCHOA FERTILIZER CORP. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.
Argued November 16, 1961.
Decided December 18, 1961.
An employer and two labor organizations waived the procedures for adjudgment of the allegations of an unfair labor practice complaint issued against them under the National Labor Relations Act; agreed upon the form of a cease-and-desist order; consented that it be entered by the Board against them; and waived all defenses to the entry of a decree enforcing such order. Upon being petitioned for enforcement of the order under 10 (e) of the Act, the Court of Appeals, sua sponte, modified the order by striking out references to other employers and other labor organizations and decreed enforcement of the order as so modified. Held: The Court of Appeals should have decreed enforcement of the Board's order without modification. Pp. 318-323.
283 F.2d 26, reversed.
Solicitor General Cox argued the cause for petitioner. With him on the brief were Stuart Rothman, Dominick L. Manoli and Norton J. Come.
No appearance for respondents.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The respondents, an employer and two labor organizations, waived the procedures for adjudgment of the allegations of an unfair labor practice complaint issued against them under the National Labor Relations Act, and agreed upon the form of a cease-and-desist order to be entered by the National Labor Relations Board against them. 1 [368 U.S. 318, 319] The complaint alleged that the employer violated 8 (a) (1), (2) and (3), and the labor organizations 8 (b) (1) (A) and (2), of the Act, as amended, by executing and maintaining a collective bargaining agreement which conditioned employment upon union membership, vested the respondent unions with exclusive control over hiring, and provided for the checkoff of union dues and fees. The prohibitions of the consent order were not limited to the relationship between the employer and the two labor organizations. The respondent employer was directed to refrain from performing, maintaining or giving effect to such an agreement with the respondent unions, "or any other labor organization," and from otherwise unlawfully encouraging membership in the respondent unions, "or any other labor organization," by discrimination as to hire, tenure, or terms or conditions of employment; and the respondent unions were directed to refrain from performing, maintaining, or giving effect to such an agreement with the respondent employer, "or any other employer, over which the Board will assert jurisdiction," and from otherwise causing or attempting to cause the respondent employer, "or any other employer over which the Board will assert jurisdiction" to discharge, refuse to hire, or otherwise discriminate against any employee in violation of 8 (a) (3) of the Act. 2
The respondents also agreed that "any United States Court of Appeals for any appropriate circuit may on application by the Board, enter a decree enforcing the Order of the Board . . .," and that "Respondents waive all defenses to the entry of the decree . . . ." R. 29. [368 U.S. 318, 320] The Board petitioned the Court of Appeals for the First Circuit for enforcement of the order pursuant to 10 (e) of the Act. 3 The enforcement petition submitted the order in the form agreed upon and recited the terms of the settlement stipulation. [368 U.S. 318, 321]
The Court of Appeals, sua sponte, 4 and initially without filing an opinion giving reasons supporting its action, entered a decree which excised the phrases "or any other labor organization" and "or any other employer over which the Board will assert jurisdiction" wherever they appeared in the consent order and the compliance notices, and enforced the order as so modified. Subsequently, on the Board's second motion for reconsideration, the Court reconsidered its action in light of the opinion of the Court of Appeals for the Second Circuit in Labor Board v. Combined Century Theatres, Inc., 46 LRR Man. 2858. That case held that in the face of a like stipulation "and in the absence of any exception to the order taken before the Board or the showing of any extraordinary circumstances, the Court will not consider respondents' objections." The motion for rehearing was denied in an opinion covering the present case and six others in which the Court of Appeals had similarly modified orders entered by the Board. 283 F.2d 26. 5 Because we believed the case presented an important question of authority of the Court of Appeals in the premises we granted certiorari. 365 U.S. 833 . [368 U.S. 318, 322]
The authority of the Court of Appeals to modify Board orders when the Board petitions for their enforcement derives from the provision of 10 (e) authorizing the court "to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board." However, the immediately following sentence of 10 (e) provides that "No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." At least when the Board has not "patently traveled outside the orbit of its authority," Labor Board v. Cheney California Lumber Co., 327 U.S. 385, 388 , 6 our cases have uniformly held that in the absence of a showing within the statutory exception of "extraordinary circumstances" the failure or neglect of the respondent to urge an objection in the Board's proceedings forecloses judicial consideration of the objection in enforcement proceedings. Marshall Field & Co. v. Labor Board, 318 U.S. 253 ; May Department Stores Co. v. Labor Board, 326 U.S. 376, 386 , n. 5; Labor Board v. Cheney California Lumber Co., supra; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344, 350 ; Labor Board v. District 50, 355 U.S. 453, 463 -464. These cases involved contested proceedings before the Board, as did Labor Board v. Express Publishing Co., 312 U.S. 426 , and Communications Workers v. Labor Board, 362 U.S. 479 , upon which the Court of Appeals relied. The limitation of 10 (e) applies a fortiori to the consideration of an objection to enforcement made by a respondent who has consented to the terms of the order. See Labor Board v. Combined Century Theatres, Inc., supra. [368 U.S. 318, 323]
We understand the opinion of the Court of Appeals to hold that the limitation of 10 (e) is inapplicable when the record contains no findings or facts supporting the order - that "affirmative reasons must appear to warrant broad injunctions." 283 F.2d, at 29-30. The Court noted that there were no such findings or facts in this record - not even a "stipulation disclosing facts which warrant broad relief." Id., at 31. The court reasoned that the limitation of 10 (e) was therefore no barrier to its sua sponte revision of the order and stated that "We do not think that consent makes the difference." Id., at 31. Contrary to the Court of Appeals, we think that consent makes a significant difference; it relieves the Board of the very necessity of making a supporting record. A decree rendered by consent "is always affirmed, without considering the merits of the cause." Nashville, Chattanooga & St. Louis R. Co. v. United States, 113 U.S. 261, 266 . There are not here applicable any of the exceptions, such as a claim of lack of actual consent, or of fraud in the procurement of the order, or of lack of federal jurisdiction. See Swift & Co. v. United States, 276 U.S. 311, 324 .
The judgment of the Court of Appeals is reversed and the case is remanded with directions that a judgment be entered which affirms and enforces the Board's order.
[ Footnote 2 ] The consent order also provided for the posting in English and in Spanish of agreed-upon forms of compliance notices.
[ Footnote 3 ] Section 10 (e), 49 Stat. 454, as amended, 29 U.S.C. 160 (e), is as follows:
[ Footnote 4 ] The respondents honored their agreement not to contest the enforcement of the consent order both in the Court of Appeals and in this Court. Only the Board appeared by the Solicitor General in this Court to brief and argue the cause.
[ Footnote 5 ] Two of the cases are presently pending in this Court on petition for writ of certiorari. Labor Board v. Las Vegas Sand & Gravel Corp., certiorari granted later and judgment reversed, post, p. 400: Labor Board v. Local 476, Plumbers, certiorari granted later and judgment reversed, post, p. 401.
[ Footnote 6 ] The order here consented to would be within the Board's authority under appropriate circumstances. See, e. g., Labor Board v. Springfield Building & Construction Trades Council, 262 F.2d 494, 498-499. [368 U.S. 318, 324]