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National Labor Relations Board v. Kostilnik

decided: January 16, 1969.


Seitz, Aldisert and Stahl, Circuit Judges.

Author: Per Curiam

Per Curiam

The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1964), has petitioned this court for enforcement of an order based on findings by the trial examiner that the respondent violated certain provisions of section 8 of the Act, 29 U.S.C. § 158 (1964), more specifically:

(1) Section 8(a)(1) by threatening employees for joining or assisting a union, Bakery and Confectionery Workers' International Union of America, Local No. 12, by promising benefits to employees to induce them to renounce the union, and by "coercively interrogating" an employee concerning his attitude toward the union;

(2) Section 8(a)(3) and (1) by discharging several employees because of their membership in or activities on behalf of the union; and

(3) Section 8(a)(5) and (1) by refusing to recognize and bargain with the union.

The Board's unreported order directed respondent to cease and desist from the unfair labor practices found, to post specified notices on the premises, to offer discharged employees reinstatement with back pay, to preserve and make available any business records necessary to compute back pay and, upon request, to recognize and bargain with the union as the representative of the respondent's employees.

Respondent did not file any exceptions to the findings and recommendations of the trial examiner, which were thereupon adopted as the order of the Board on November 27, 1967, pursuant to section 10(c) of the Act, 29 U.S.C. § 160(c) (1964). In its answer to the Board's petition for summary enforcement of the order by this court, respondent alleged that it is "no longer in business and will not continue in said business."*fn1 The issue thus raised is whether the Board's order is mooted, in whole or in part, by the allegation that respondent has discontinued its business operations.*fn2

The question of mootness of a Board order was raised in NLRB v. Weirton Steel Co., 135 F.2d 494 (3d Cir. 1943), where the respondent-company had voluntarily dissolved and ceased to exist. There we held that the order would be enforced upon the successors of the respondent in order to fulfill the purposes of the Act. We hold here that the policy of the Act does not require a different result based upon the alleged factual distinction that the business of the respondent has ceased and there appears to be no successor. In so doing we join the Second Circuit which, in similar circumstances, said: "There is no merit to respondent's contention that, since the question has been rendered 'academic' by reason of his going out of business, we ought not to grant enforcement of the Board's order." NLRB v. Haspel, 228 F.2d 155, 156 (2d Cir. 1955), accord, NLRB v. Lamar Creamery Co., 246 F.2d 8 (5th Cir. 1957); NLRB v. Electric Steam Radiator Corp., 321 F.2d 733 (6th Cir. 1963);*fn3 NLRB v. Acme Mattress Co., 192 F.2d 524 (7th Cir. 1951); NLRB v. Dixon, 184 F.2d 521 (8th Cir. 1950).*fn4

We conclude that the fact that a respondent has terminated its business is irrelevant in a petition by the Board for immediate and full enforcement of an order: NLRB v. Lamar Creamery Co., supra 246 F.2d at 10. Moreover, the courts should not recommit the order for consideration by the Board of respondent's allegations of impossibility of compliance: Southport Petroleum Co. v. NLRB, 315 U.S. 100, 105, 86 L. Ed. 718, 62 S. Ct. 452 (1942).*fn5 After the order is enforced by this court, the Board may determine in a subsequent proceeding whether compliance is fully possible. In any event, impossibility may be raised by respondent as a defense if a contempt action is brought against her by the Board: NLRB v. Dixon, supra 184 F.2d at 523, supplemented in NLRB v. Dixon, 189 F.2d 38, 39 (8th Cir. 1951); NLRB v. Haspel, supra 228 F.2d at 156; Retail Clerks International Asso., Local 880 v. NLRB, 125 U.S. App. D.C. 63, 366 F.2d 642, 646 n. 8 (D.C. Cir. 1966).

We are in full accord with the Board's declaration of policy*fn6 in its brief (p. 4) that,

"In order to protect the public interest in prohibiting and discouraging the commission of unfair labor practices, the Board is entitled to have its orders enforced despite claims that the respondent has discontinued operations. "

The petition of the Board for enforcement of its ...

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