1. Labor unions which intervened in the Circuit Court of Appeals
in support of a petition by the National Labor Relations Board to
revoke an enforcement order and to remand the cause to the Board
held to have standing to seek review of a denial of the
petition, even though the Board elected not to seek review. P.
325 U. S.
338.
2. The National Labor Relations Board, having sought and
obtained a decree of the Circuit Court of Appeals for enforcement
of an order of the Board, is not entitled as of right -- in the
absence of fraud or mistake chargeable to the respondent, and after
expiration of the term of court at which the decree was entered --
to have remedial provisions of the decree set aside, and the case
remanded to it for prescription of relief which it deems more
appropriate to effectuate the policy of the National Labor
Relations Act. P.
325 U. S.
339.
3.
American Chain & Cable Co. v. Federal Trade
Commission, 142 F.2d 909, distinguished. P.
325 U. S.
342.
141 F.2d 843, affirmed.
Certiorari, 323 U.S. 695, to review a decree dismissing a
petition of the National Labor Relations Board to vacate
Page 325 U. S. 336
part of a decree of enforcement and to remand the cause to the
Board.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The question presented is whether the National Labor Relations
Board, after seeking and obtaining a court order of enforcement of
its own order, in the absence of fraud or mistake induced by the
respondent, and after expiration of the term, is entitled to have
the provisions of the decree prescribing the nature of the remedy
set aside and the case remanded to it for the prescription of
relief it deems more appropriate to enforce the policy of the
National Labor Relations Act. [
Footnote 1]
In a proceeding instituted by the petitioner unions, the Board
found that the respondent companies had been guilty of unfair labor
practices in violation of Sections 8(1) and 8(3) of the Act.
[
Footnote 2] The hearings were
protracted both as to the alleged discrimination and as to the
remedy which should be adopted. With all relevant data open to it,
the Board ordered the employers to cease and desist from certain
practices and to reinstate 209 employees with back pay. Based on
the Board's understanding as to the opportunity for reinstatement
of the 209 men in question and all others eligible for
reemployment, it devised a formula
Page 325 U. S. 337
for the calculation of back pay for the members of the class to
whom the award was made. [
Footnote
3]
The employers were dissatisfied with the order, and sought a
review by the Circuit Court of Appeals. Thereupon, the Board filed
a transcript of the record in the same court and sought enforcement
of its order. The Unions, who are petitioners in this court, were
permitted to intervene, and were heard in support of the Board's
order. The court modified the order as to matters not here
relevant, and decreed enforcement. [
Footnote 4] Two paragraphs of the decree thus obtained by
the Board with the assistance of the present petitioners specified
the method of computing backpay to the claimants whom the Board had
found entitled. This decree was entered June 27, 1941. The
companies proceeded to compute backpay due the claimants in
accordance with the terms of the decree, and tendered the amount
they ascertained to be due thereunder. The Board, by its agents,
examined the corporate records and reached the conclusion that a
different method of compensation to the claimants should have been
adopted in the original proceeding.
February 4, 1943, nearly two years after the final decree, and
after attempted compliance by the employers, the Board petitioned
the Circuit Court of Appeals to vacate that portion of its decree
which dealt with the award of backpay, and to remand the cause to
the Board. The petitioner labor unions were permitted to intervene
and to support the Board's petition.
It is somewhat difficult to characterize the allegations of the
petition. It does not accuse the companies of fraud, but indicates
that certain evidence produced by them created a wrong impression
on the mind of the Board which could have been corrected had they
gone into greater detail and disclosed certain facts within their
knowledge, and it
Page 325 U. S. 338
avers that the Board prescribed its remedy in reliance upon a
mistaken understanding of conditions touching possible reemployment
of the claimants. To this petition the employers replied,
challenging the jurisdiction of the court to vacate its decree,
moved to dismiss the petition, and answered on the merits,
categorically denying the averments of the petition. Thereupon the
Board moved for judgment on its motion. The matter was heard. The
court held that there had been no showing that the order and decree
were obtained by misrepresentation or wrongful conduct of the
employers or that any mistake of the Board had resulted in a decree
which was unfair, and consequently held that there was no
justification for revocation or remand of the portion of the decree
involved. The petition of the Board was accordingly dismissed.
[
Footnote 5] The Board did not
apply for certiorari, but the intervening unions whose petition had
also been dismissed applied for the writ. The Board was made a
respondent in this court, but appeared in support of the
petition.
The employers made a persuasive showing that, as respects
material elements of the problem of backpay, the record of the
Board's hearing, and the decision of the Circuit Court of Appeals
enforcing the Board's order demonstrate that all the facts now
relied upon by the Board for revocation and reformation of its
order sufficiently appeared prior to the entry of the order. In the
view we take, it is unnecessary to consider this matter.
They also attack the standing of the petitioners to seek review
by this court when the Board, the body charged with the enforcement
of the National Labor Relations Act, has elected not to seek
review. We think that, in the circumstances disclosed, the
petitioners, though they could not have instituted enforcement
proceedings, [
Footnote 6] had
standing
Page 325 U. S. 339
to seek review of the order denying the Board's petition.
[
Footnote 7]
The important question presented is whether, despite a decree
entered at the Board's behest prescribing the method of enforcement
of the relief granted by the Board, that body retains a continuing
jurisdiction to be exercised whenever, in its judgment, such
exercise is desirable, and may therefore oust the jurisdiction of
the court and recall the proceeding for further hearing and
action.
It will be noted that this is not a bill of review based upon
fraud or mistake. If it were to be treated as such, obviously the
relief prayed could not be granted without a trial, in view of the
issues made by the employers' answer. The Board's insistence is
that, upon its petition, the averments of which are denied, it is
entitled to an opening of the decree and the remand of the cause
upon its mere statement that it now thinks the relief originally
granted was inappropriate to the situation as the Board now
conceives it.
We are not dealing here with an administrative proceeding. That
proceeding has ended, and has been merged in a decree of a court
pursuant to the directions of the National Labor Relations Act. The
statute provides that if, in the enforcement proceeding, it appears
that any further facts should be developed, the court may remand
the cause to the Board for the taking of further evidence and for
further consideration. (§ 10(e)). [
Footnote 8] But it is plain that the scheme of the Act
contemplates that, when the record has been made and is finally
submitted for action by the Board, the judgment "shall be final."
It is to have all the qualities of any other decree entered in a
litigated cause upon full hearing, and is subject to review by this
court on certiorari as in other cases. (§ 10(e),
supra).
The
Page 325 U. S. 340
position of the petitioners is, and necessarily must be, that,
while the court's decree is final as respects the matter of the
alleged unfair labor practices found by the Board, it is never
final as respects the relief prescribed by the Board. It must
follow that, at any time, however remote, and for any reason
satisfactory to the Board, it may recall the proceeding from the
Circuit Court of Appeals insofar as concerns the relief granted and
start afresh as if an enforcement decree had never been
entered.
Finality to litigation is an end to be desired as well in
proceedings to which an administrative body is a party as in
exclusively private litigation. The party adverse to the
administrative body is entitled to rely on the conclusiveness of a
decree entered by a court to the same extent that other litigants
may rely on judgments for or against them. The petitioners'
contention is that the nature and extent of the backpay remedy are
primarily and peculiarly matters lying within the administrative
discretion of the Board (
see Phelps Dodge Corp. v. Labor
Board, 313 U. S. 177,
313 U. S. 194;
Labor Board v. Link-Belt Co., 311 U.
S. 584,
311 U. S.
600), and that a court's function is limited to
imparting legal sanction to the backpay remedy once it has
determined that the Board has acted within the confines of its
authority, since a court is prohibited from exercising the
discretion reposing exclusively in the Board, and it can therefore
neither affirm nor reverse a Board order relating to backpay on the
basis of its own conception of effectuating the policies of the
Act.
All this is true, and we have allowed the Board great latitude
in devising remedies which it deems necessary to effectuate the
purposes of the Act. But it is not we who essay to interfere with
the discretion of an administrative body; it is the Board which is
seeking to vacate a court order. The Board had exercised its
discretion and devised a remedy. It gave long consideration to the
problem of adequate relief for the employees discriminated against,
and now asserts that it made a mistake. That is all that
Page 325 U. S. 341
it asserts -- not even the Board claims that the court below is
usurping its functions. What the Board complains of is that it is
not permitted to exercise its admittedly wide discretion a second
time, or any number of times it may choose.
Administrative flexibility and judicial certainty are not
contradictory; there must be an end to disputes which arise between
administrative bodies and those over whom they have jurisdiction.
This does not mean that the Board could not frame an order which,
by its terms, required modification should conditions change. But
here. the order was definite and complete; it contemplated only
arithmetical computation. The conditions remained the same; what
had changed was the Board's awareness of them. Discussion of the
Board's peculiar administrative ability serves no end where the
matter is one of simple mistake. It rings hollow when it refers to
what, on the whole, is little more than a mistake in arithmetic,
and, in one instance, is just that.
Not only has this Court allowed large scope to the discretion of
administrators, but the National Labor Relations Act specifically
gives the Board wide powers of modification. Until the transcript
of a case is filed in court, the Board may, after reasonable
notice, modify and finding or order in whole or in part. [
Footnote 9] After the case has come
under the jurisdiction of the court, either party may apply to the
court for remand to the Board. [
Footnote 10] There is no dearth of discretion or
opportunity for its exercise, but opportunities should not be
unlimited. If the petitioners are right, it must follow that, in
any case in which the court refuses to remand, the Board need
merely wait until the "final" decree is entered, and then proceed
to resume jurisdiction, ignore the court's decree, and come again
to it, asking its imprimatur on a new order.
Page 325 U. S. 342
Petitioners place great reliance on
American Chain &
Cable Co. v. Federal Trade Commission, 142 F.2d 909, but, far
from supporting them, that case emphasizes the lack of statutory
authority here for what was permitted there. There, the court
ordered the Federal Trade Commission to consider a petition that
the Commission ask the court to vacate its enforcing decree because
of war conditions. But the statute in that case reads:
"After the expiration of the time allowed for filing a petition
for review, if no such petition has been duly filed within such
time, the Commission may at any time, after notice and opportunity
for hearing, reopen and alter, modify, or set aside, in whole or in
part, any report or order made or issued by it under this section
whenever in the opinion of the Commission conditions of fact or of
law have so changed as to require such action or if the public
interest shall so require. [
Footnote 11]"
This statute specifically allows the Commission to modify its
order after it has become final. And the court merely held that it
was reasonable to suppose that Congress intended the Commissioner's
power to extend to cases where its order had become final by court
decree, as well as to cases where the order had become final by
failure to appeal. The National Labor Relations Board is vested
with no such power. Section 10(d) [
Footnote 12] of the Act provides:
"Until a transcript of the record in a case shall have been
filed in a court, as hereinafter provided, the Board may at any
time, upon reasonable notice and in such manner as it shall deem
proper, modify or set aside, in whole or in part, any finding or
order made or issued by it."
There is no question that the Act intended to vest exclusive
jurisdiction in the courts once the Board, in the exercise of its
discretion, had reached its determination and applied for
enforcement. This prevents conflict of authority.
Ford Motor
Co. v. Labor Board, 305 U. S. 364.
Page 325 U. S. 343
In the
Ford case, we said,
"The authority conferred upon the Board by Section 10(d) of the
National Labor Relations Act . . to modify or set aside its
findings and order ended with the filing in court of the transcript
of record."
305 U.S.
364,
305 U. S. 368.
But the petitioners and the Board contend that, although the court
has entered its decree, the Board may resume jurisdiction in the
same case when it pleases, disregarding the court's decree. This
would, indeed, be a peculiar scheme of jurisdiction, devised to
prevent interference with the court while it is deliberating to
determine what its decree shall be, but allowing the decree to be
ignored after it is entered.
The circumstances of the case show how unfair it would be to
hold with the petitioners. The employers challenged the Board's
order in the original enforcement proceeding not only as it
affected the charged unfair labor practices, but as touching the
appropriate relief. When the Circuit Court of Appeals modified and
affirmed the order, the companies had an opportunity to apply to
this court for review, or to comply with the decree as modified by
the court. They elected to follow the latter course only to be
confronted, years later, with an attempt to rewrite a portion of
that decree at a time when their right of review of other portions
of it had expired.
We are dealing here with a decree of a court entered in a
judicial proceeding. The term at which the decree was entered has
long since expired. The only recourse open to the Board is the same
that would be open to any other litigant -- namely, a bill of
review. If the petition disclosed any basis for such a review, the
answer of the employers sharply raised issues of fact which
required resolution before any relief in the nature of a review
could be granted. Unless the National Labor Relations Act so
requires, the Board was not entitled, as of right, to have the
decree it had procured set aside in part and the cause remanded for
trial
de novo in part. There is nothing in the Act to
indicate
Page 325 U. S. 344
that such a decree is dual in character -- part of it final and
part of it subject to vacation and reexamination by the Board
regardless of the showing made to the court and regardless of the
view the court holds as to the propriety of such vacation.
The judgment is
Affirmed.
[
Footnote 1]
49 Stat. 449, 29 U.S.C. § 151
et seq.
[
Footnote 2]
29 U.S.C. § 158(1), (3).
[
Footnote 3]
16 N.L.R.B. 727; 18 N.L.R.B. 320.
[
Footnote 4]
119 F.2d 903.
[
Footnote 5]
141 F.2d 843.
[
Footnote 6]
Amalgamated Utility Workers v. Consolidated Edison Co.,
309 U. S. 261;
National Licorice Co. v. Labor Board, 309 U.
S. 350,
309 U. S.
362-363;
Phelps Dodge Corp. v. Labor Board,
313 U. S. 177,
313 U. S.
193.
[
Footnote 7]
Consolidated Edison Co. v. Labor Board, 305 U.
S. 197,
305 U. S. 218;
Williams v. Morgan, 111 U. S. 684.
[
Footnote 8]
29 U.S.C. § 160(e).
[
Footnote 9]
29 U.S.C. § 160(d).
[
Footnote 10]
29 U.S.C. § 160(e).
[
Footnote 11]
5 U.S.C. § 45(b).
[
Footnote 12]
29 U.S.C. § 160(d).
MR. JUSTICE MURPHY, dissenting.
This case raises important questions concerning the relationship
of courts and administrative agencies subsequent to the entry of a
judicial decree enforcing an administrative order. Because the
particular fact of this case are so essential to a proper
determination of these questions, and because the Court has not
seen fit to refer to the factual situation in other than general
terms, it is necessary to review the facts at some length before
discussing my reasons for disagreement with the Court's
conclusion.
The National Labor Relations Board, after conducting proceedings
instituted upon charges filed by the petitioner unions, found that
the respondent companies had committed unfair labor practices in
violation of Sections 8(1) and 8(3) of the National Labor Relations
Act, 49 Stat. 449, 452. On October 27, 1939, the Board entered an
order requiring the companies to cease and desist from their unfair
labor practices and to take certain affirmative action, including
the reinstatement of 209 employees with backpay. Inasmuch as the
record at that time convinced the Board that employment
opportunities with the companies had been permanently and
substantially curtailed subsequent to the critical date of July 5,
1935, the Board felt the normal remedy of full backpay would be
inappropriate. Under the assumed circumstances, the normal remedy
would require the companies to pay in back wages an amount greater
than that which they would have paid to the victims of
discrimination had
Page 325 U. S. 345
there been no unfair labor practices. And it would also give the
group of 209 employees more than it presumably would have received
under curtailed employment opportunities. The Board therefore
devised and set forth in its opinion a special formula giving each
claimant only a portion of the full backpay to which he otherwise
would have been entitled. [
Footnote
2/1] 16 N.L.R.B. 727; amended in 18 N.L.R.B. 320.
The companies then filed a petition for review in the court
below on November 6, 1939, and the Board countered with a
cross-petition for enforcement of its order. On February 10, 1940,
the petitioner unions sought and obtained permission from the court
to intervene in the proceedings on the claim that, since certain of
their members had been allowed affirmative relief by the Board,
they were "vitally concerned with the enforcement of said order of
the Board." Leave was also given them to file briefs and
participate in the oral argument. Subsequently, on May 21, 1941,
the court below rendered an opinion affirming the Board's order
with certain modifications not here material, and a decree
enforcing the order was entered accordingly. 119 F.2d 903.
On August 23, 1941, the companies offered reinstatement to the
209 employees, thereby fixing that day as the terminal date of the
period commencing July 5, 1935, for which backpay was due under the
terms of the court's decree enforcing the Board's order. The
companies submitted their backpay computations to the Board in May,
1942, and tendered the sum of $8,409.39 in purported full payment
of all backpay, although they later averred that no more than
$5,400 was due under the formula specified by the Board. In
accordance with its usual procedure, the Board thereupon examined
the pertinent payrolls and records of the companies to verify their
computations
Page 325 U. S. 346
and to determine whether there had been compliance with the
decree. This investigation was completed in October, 1942, at which
time the Board became convinced that the provisions of its order as
enforced by the court contained certain errors and mistakes
relating to backpay, and that, in framing the special formula, it
had misconceived the facts as to the availability of employment
with the companies for the 209 employees. It appeared to the Board
that the companies, during the period from July 5, 1935, to August
23, 1941, had been in a position to accord full employment to these
209 claimants as well as to all other former employees reapplying
for work, and that the normal back wage computations should have
been used.
The Board, on February 1, 1943, filed a petition with the court
below setting forth the situation. It requested that the pertinent
paragraphs of the court's decree enforcing the Board's order be
vacated, and that so much of the cause as was thereby affected be
remanded to the Board for further consideration. The companies
filed an answer. The unions also filed a brief and participated in
the oral argument on this matter. The court, treating the Board's
petition as one "in the nature of a bill of review to set aside,
for fraud, mistake and newly discovered evidence, paragraphs 2(d)
and 3(b) of the final decree of this Court," dismissed the petition
on its merits. 141 F.2d 843. The court later denied without opinion
the Board's petition for rehearing and the union's separate motion
to modify the decree or to vacate the paragraphs in question and
remand to the Board.
I
Turning to the facts relative to the alleged error, we find that
the Board, in framing its backpay formula for the 209 employees,
expressly desired to make them whole and "to restore the situation,
as nearly as possible, to that which would have obtained but for
the illegal discrimination."
Page 325 U. S. 347
16 N.L.R.B. at 834. Normally the Board would have directed
payment of full backpay to each claimant from the date of
discrimination to the date of offer of reinstatement or placement
on a preferential rehiring list, allowing due credit for net
interim earnings received from other employment. But the Board felt
that "the peculiar factual situation here presents unusual
difficulties in fashioning our remedy so as to restore the
status quo," 16 N.L.R.B. at 834, and that a special remedy
should be devised.
It appears that a strike, beginning on May 8, 1935, caused the
companies to close down for several weeks. On that day,
approximately 1,100 men were employed by the companies. Operations
were resumed on June 12, and the Board found that thereafter the
companies discriminatorily refused to rehire the 209 employees in
question, referred to as the claimants. Evidence was introduced by
the companies, however, to show that, after July 5, 1935, the
effective date of the Act, certain of their mines were sold, many
operations suspended, production methods reorganized, and specific
jobs abolished -- resulting in a drastic curtailment of the number
of available jobs. According to the Board, only about 600 men were
employed by July 5. Some 350 of the 500 employees not then working
were claimants in the case, although discrimination was found only
as to 209 of them. After July 5, a substantial number of additional
men were put to work, but the total number of employees was still
considerably short of the pre-strike level of 1,100. The Board
apparently assumed that all 1,100 men would reapply for work after
the settlement of the strike, thus making the number of available
jobs insufficient. As it later became evident, however, not all of
the 1,100 reapplied, and there were, according to the Board,
sufficient opportunities at substantially all times for all who
actually reapplied, including the 209 victims of
discrimination.
Page 325 U. S. 348
On the assumption that "there were presumably at all times less
jobs open than old employees available," 16 N.L.R.B. at 834, and
that there was no way of knowing which men would have been
reinstated had the companies acted legally, the Board devised a
special formula for computing backpay. It directed that there be
computed as a lump sum the total amount of wages actually paid to
all persons hired or reinstated from and after July 5, 1935, up to
the date of compliance with the Board order reinstating or placing
the 209 employees on a preferential list. The Board indicated
that
"we shall not credit the entire lump sum to the claimants
discriminated against, since we cannot assume that they and only
they would have been given these jobs had the respondents acted
lawfully. But we can and do assume for this purpose that a
proportionate amount of such claimants would have been given the
jobs."
16 N.L.R.B. at 835, 836. Accordingly, the Board directed that a
proportion of the lump sum should be distributed to the 209
claimants. This proportion was to be determined by a governing
fraction having as its numerator the number of claimants and as its
denominator the total number of claimants and all other pre-strike
employees who reapplied for work, whether successfully or not,
after July 5, 1935. Thus, by way of illustration, if the lump sum
amounted to $360,000 and there were 200 claimants and 100 other
reapplicants, the governing fraction would be two-thirds and the
basic sum of $240,000 would be divided among the 200 claimants,
with adjustments being made for net earnings elsewhere. Neither the
Board's order nor the court's enforcing decree fixed the amount of
backpay due under this formula. The determination of that sum was
left to be made after the period of discrimination ended.
Following the close of the period of discrimination, the Board
examined the payrolls and other records of the companies to
determine the exact amount of back wages
Page 325 U. S. 349
due the 209 claimants. According to the Board, this
investigation revealed that, despite any curtailment of employment,
the companies, at virtually all times after July 5, 1935, had jobs
opening up in numbers equal to, and at times in excess of, the
total number of claimants and reapplicants, and that such positions
were available at virtually all times to all the claimants and
reapplicants. This information was submitted by the Board in
support of its petition to vacate and remand the portions of the
court's decree relating to backpay. It claimed that it had been led
into error in framing its original formula by the evidence and
contention of the companies relative to curtailed employment, and
that such a formula, under the facts as they now appeared to the
Board, would be grossly inequitable to those who had suffered
deprivation of earnings as a consequence of the companies' unfair
labor practices.
The parties differ as to whether the Board, at the time it
framed the special formula, was aware of or had access to the facts
which it now relies upon. The Board alleges that it was ignorant of
these facts, and thus misconceived the remedy. The companies state,
however, that the Board actually knew of these facts, and that, in
the exercise of its discretion, it decreed that partial, rather
than full, back wages should be paid. We need not pause to
determine this controversy, for it appears obvious that, assuming
the figures submitted by the Board are true, the special formula
specified by the Board is grossly inadequate, and falls far short
of achieving the expressed desire of the Board in this case "to
restore the situation, as nearly as possible, to that which would
have obtained but for the illegal discrimination."
If it were true that there were insufficient jobs for the 209
claimants as well as for the other reapplicants, the special
formula would be appropriate. Then it could be said that it was
impossible to tell whether the 209 claimants would all have been
employed by the companies subsequent
Page 325 U. S. 350
to July 5, 1935, and that it was therefore necessary to
apportion the available jobs among claimants and other reapplicants
for purposes of determining how much backpay was due the claimants.
But if it is a fact that there were sufficient employment
opportunities for all the 209 claimants and the reapplicants at
virtually all times, the backpay formula framed by the Board
becomes inadequate. Since all of the claimants would then
presumably have been employed by the companies at all times but for
the discrimination, all of them suffered the loss of the full wages
which they would have received and any formula which gives them
less than that amount fails to make them whole. And the companies
escape paying the full amount of wages they would have paid had
they acted legally.
We cannot ascribe to the Board a deliberate intention to
prescribe something less than a full make whole remedy. Nothing
appears in the Board's opinion or order to that effect. Indeed, the
Board's statements of its objectives in this case expressly
negative such an intention. And the reason given for fashioning the
special formula -- the fact that there were presumably at all times
less jobs open than old employees available -- is consistent only
with a desire to compensate the claimants as fully and as equitably
as possible under the facts as then contemplated.
In addition to the alleged inappropriateness of the formula as a
whole, the Board claims that there are numerous other errors in the
backpay provisions that warrant remand for purposes of correction.
Thus, footnote 185 of the Board's opinion inadvertently contains a
serious omission which, contrary to the Board's intention, limits
the lump sum used in the formula to the earnings of only 209
employees, rather than to the earnings of 209 employees plus the
number of old employees reapplying. [
Footnote 2/2]
Page 325 U. S. 351
The governing fraction includes the latter employees, and the
lump sum should, in turn, reflect their earnings. Otherwise the
claimants are limited to a small part of their proportionate loss
in wages. Moreover, the formula illogically requires that there be
deducted from each claimant's share the full amount, rather than a
pro rata share, of his interim earnings. These errors and
certain ambiguities [
Footnote 2/3]
serve to make the partial backpay formula an ineffective means for
making the employees as whole as possible, even on the assumption
that employment opportunities had been curtailed. The remedy which
the Board originally found to be essential to carry out the
purposes of the Act is thereby rendered inadequate.
The practical impact of this situation on the employees involved
is serious and substantial. Under the Board's partial and
mathematically inaccurate backpay formula, which this Court now
insists must be followed, the companies claim that the 209
employees are entitled to only $5,400. But, if the true facts are
as represented by the Board and if it should be determined that the
full backpay formula should be utilized under such circumstances,
approximately $800,000 would be due these 209 employees
Page 325 U. S. 352
after allowance for interim earnings elsewhere. Thus, these
employees must bear the loss of nearly $795,000 in unpaid back
wages resulting from the unfair labor practices of the companies.
On them rests the penalty for what this Court euphemistically calls
"little more than a mistake in arithmetic."
It is thus clear that, unless the Board is given some
opportunity to reexamine its backpay remedy, much of the loss
resulting from the companies' unfair labor practices may be shifted
from the companies to the employees, and the public policy of the
Act may be largely circumvented. Our concern here is not with the
truth of the facts alleged by the Board, or with the
appropriateness of any other remedy the Board might devise. It is
enough that the Board has cast sufficient doubt on the
appropriateness and correctness of its original remedy to warrant
resubmission of the matter to the Board for further consideration.
The Court today does not attempt to deny that the situation is an
intolerable one in light of the alleged facts, or that modification
or remand of the backpay provisions of the decree is a reasonable
request under such circumstances. Hence, unless some principle of
law or statute compels the opposite conclusion, such a remand
should have been made.
II
The pertinent legal and statutory rules, in my opinion, do not
preclude remand of the backpay provisions of the court's decree to
the Board under these circumstances.
The companies argue that the exercise of the Board's discretion
in devising a backpay formula became a finality by virtue of the
enforcing decree of the court below, and that this formula cannot
be modified or reconsidered at this late date. It is claimed that
all rights and liabilities under the decree were fixed and fully
accrued on August 23, 1941, the terminal date of the period of
discrimination,
Page 325 U. S. 353
and that the court below had no jurisdiction to vacate or remand
any portion of that decree subsequent to the end of the term in
which it was entered.
But it is plain that the backpay formula, as enforced by the
court's decree, was, at most, provisional and tentative in
character.
Cf. United States v. Swift & Co.,
286 U. S. 106,
286 U. S. 114.
It did not pretend to be based upon detailed and comprehensive
findings as to actual employment opportunities and actual losses
suffered during the entire period of discrimination -- facts which
were impossible to determine until after the close of that period.
Even though the hearing closed on April 29, 1938, that part of the
order relating to backpay spoke as of July 5, 1935. The Board
merely assumed from certain evidence and allegations that there
would be decreased employment opportunities at all times after July
5, 1935, and left to the future the problem of uncovering the
complete facts. The formula was drawn in light of that assumption
-- an assumption that necessarily contemplated that undisclosed or
new facts or a removal of a misconception of the true facts might
call for an adjustment in the remedy to be applied. And the
enforcing decree of the court in no way affected the tentative and
unexecuted nature of this formula.
The rights and liabilities under such a backpay formula could
not become final until the Board or the courts were satisfied with
the application of the formula to the actual facts or until the
formula ripened into an executed decree. The sole purpose of the
remedy was to vindicate the public policy by compensating the
employees for the losses they had suffered due to the unfair labor
practices of the companies, rather than to punish the companies.
Until it was authoritatively determined that the remedy did
accomplish this purpose as applied to the actual facts, or until
the decree was fully executed, no rights and liabilities can be
said finally to have accrued.
Page 325 U. S. 354
Thus, the companies had no vested right on the day they ceased
their discriminatory policy relative to the 209 employees to
compensate those employees according to a formula which woefully
failed to make the employees whole. The relevant portions of the
decree could still be modified or remanded.
As the court below recognized, it retained "jurisdiction over
the enforcement of all of the provisions of its decree which remain
unexecuted."
Supra, 141 F.2d at 845. A court has the
unquestioned and continuing power to make corrections and changes
in its unexecuted decrees even after the term of court in which
they were originally entered has expired.
See Root v.
Woolworth, 150 U. S. 401;
Shields v.
Thomas, 18 How. 253; 8 Cyclopedia of Federal
Procedure (2d ed.) § 3598, and cases there cited. This includes the
power to modify or grant additional relief in the interest of
enforcing or effectuating decrees. Thus, the doctrine of finality
of judgment has no relevance as applied to unexecuted decrees, and
cannot be utilized to deny power in the court below to modify or
remand the backpay provisions of the decree to the Board. No
specific provision in the National Labor Relations Act, moreover,
is necessary in order to appreciate that any decree requiring
future action is upon entry partly final and partly unexecuted. "A
continuing decree of injunction directed to events to come is
subject always to adaptation as events may shape the need."
United States v. Swift & Co., 286 U.
S. 106,
286 U. S. 114.
As to the unexecuted portion of the decree below, finality
obviously has not accrued.
On the facts alleged in the Board's petition and in the unions'
motion, the court below plainly erred in refusing to allow the
Board to reconsider the backpay remedy. Under Section 10(c) of the
Act, the Board is authorized to require such affirmative remedial
action, "including reinstatement of employees with or without
backpay, as will effectuate the policies of this Act." As the
Court
Page 325 U. S. 355
recognizes, the nature and extent of the backpay remedy are thus
primarily and peculiarly matters lying within the administrative
discretion of the Board, and a court's function is limited to
imparting legal sanction to the backpay remedy once it has
determined that the Board has acted within the confines of its
authority. A court cannot exercise the discretion that Congress has
given only to the Board. But if, as conceded, a court can neither
affirm nor reverse a Board order relating to backpay on the basis
of its own conception of effectuating the policies of the Act, no
less should it refuse to allow the Board to reconsider an
unexecuted remedy once proposed if the Board reasonably feels that
the public policy which it guards demands such action. The special
competence of the Board to require affirmative remedial action
necessarily includes a special competence to modify, amend, or
repeal such a requirements prior to its consummation.
It does not follow, as the Court assumes, that the Board, at any
time and for any reason satisfactory to it, may recall that part of
the enforcing decree relating to affirmative relief and start
afresh. The requirement of reasonableness applies here as
elsewhere. If the Board's request is so baseless and unnecessary as
to exceed the bounds of reasonableness, refusal to remand lies
within the sound discretion of the court. But here it is undeniable
that, if the facts stated by the Board are true, the unexecuted
remedy is entirely inadequate to achieve the purposes for which it
was designed. Employees suffer for the sins of their employers, and
the public policy underlying the requirement of backpay is largely
frustrated. To deny a remand under such circumstances is to abuse a
court's discretion and to transform the judicial system into a
weapon against the innocent victims of an administrative error.
The responsibility of the Board for proposing remedies to
effectuate the policies of the Act is a continuing one.
Cf.
Franks Bros. Co. v. Labor Board, 321 U.
S. 702,
321 U. S.
705,
Page 325 U. S. 356
321 U. S. 706.
It is not necessarily lifted by reason of the entry of a judicial
decree of enforcement, although it may be suspended temporarily
during the pendency of review proceedings in the appellate court.
Ford Motor Co. v. Labor Board, 305 U.
S. 364. If, at any time before the decree is executed,
the Board becomes convinced that the remedy as tentatively approved
by the court will no longer serve the statutory purposes, reason
and justice dictate that the Board should have the opportunity to
reconsider the matter. Whether the inadequacy of the remedy be due
to inadvertence, negligence, fraud, or other reasons, there is no
recognizable public or private interest in executing such a remedy.
To hold that a particular backpay remedy must be imposed when the
Board reasonably suspects that it is incorrect or inadequate is to
project legalism to an absurd and dangerous length.
We are not dealing here with an ordinary common law money
judgment which one party seeks to set aside for fraud, mistake, or
newly discovered evidence. Nor are we met with an ordinary litigant
seeking relief for itself from a judicial decree. We are concerned,
rather, with the attempt of an administrative agency to effectuate
the policies set forth in a Congressional mandate. Until those
policies are effectuated through the enforcement and execution of
statutory remedies, the agency and the courts should coordinate
their efforts to realize the plain will of the people.
United
States v. Morgan, 307 U. S. 183,
307 U. S.
191.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE
join in this dissent.
[
Footnote 2/1]
This special formula was noted by this Court in
Phelps Dodge
Corp. v. Labor Board, 313 U. S. 177,
313 U. S.
198-199, note 7.
[
Footnote 2/2]
This footnote appears at 16 N.L.R.B. at 835. With the words in
brackets originally being omitted by the Board and being added here
to indicate the Board's intended modification, this footnote reads
as follows:
"If, at any given time during this period, the number of such
new or reinstated employees then working exceeds the number of
claimants discriminated against [plus the number of old employees
reapplying], only the earnings of a number of such employees equal
to the number of claimants discriminated against [plus the number
of old employees reapplying] shall be counted in computing the lump
sum. . . ."
[
Footnote 2/3]
The Board claims that, since the number of claimants and
reapplicants varies from week to week, the formula is ambiguous as
to whether a single governing fraction, based on the average or on
the maximum numbers of claimants and reapplicants, or successive
governing fractions, based on the actual numbers, are to be
constructed for the period of discrimination. It is also said that
the formula fails to define the "average earnings" referred to in
the last sentence of footnote 185 of the Board's opinion.