FRANKFURTER, J., dissenting.

339 U.S.

In the light of the entire series of decisions by the Court of Appeals for the Fifth Circuit, both before and after the orders in this case, it does not seem to me reasonable to interpret the orders now before us as demands on the Board for findings merely as to compliance with the orders sought to be enforced. That court's decisions preclude such intendment. Since the record permits, we ought to attribute to a Court of Appeals not a willful disregard of principle and, as such, an abuse of discretion, but an honest desire to get light on happenings after the Board's orders relevant to its duties as a court of equity. Courts of Appeals are also human institutions. By attributing to the Court of Appeals an abusive exercise of discretion when the record may fairly be otherwise interpreted, we not only needlessly rebuke that court; we take action calculated to chill other judges in exercising with utter freedom a discretion which we have heretofore pronounced they possess.

I would leave the action of the Court of Appeals to take the course which I believe wisely should have been taken when their orders were entered. To that end, I would dismiss these writs as improvidently granted.

Syllabus.

NATIONAL LABOR RELATIONS BOARD v. POOL MANUFACTURING CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH

CIRCUIT.

No. 435. Argued April 18, 1950.-Decided May 15, 1950.

In December 1943, the National Labor Relations Board certified a union as the exclusive bargaining representative of certain employees of respondent, a corporation engaged in interstate commerce within the meaning of the National Labor Relations Act. In August 1946, the Board ordered respondent to cease and desist from its refusal to bargain with the union and to offer reinstatement and back pay to employees who had gone on strike. In February 1949, the Board petitioned for enforcement of this order. Respondent moved for leave to adduce additional evidence, alleging that it had bargained unsuccessfully with the union since the date of the order; that the union had made no effort to bargain since early in 1948; and that, after the record in the case was closed, facts had come to respondent's attention which caused respondent to question whether the union retained the majority of the employees in the bargaining unit. The Court of Appeals ordered the case referred back to the Board with directions to take evidence and report whether the order had been complied with; if so, whether the matter should not be dismissed as moot; and, if not, what recommendations the Board had to make. Held: The order of the Court of Appeals is vacated and enforcement of the Board's order must be decreed pursuant to § 10 (e), unless "extraordinary circumstances" are pleaded which justify respondent's failure to urge its objections before the Board. Labor Board v. Meria Textile Mills, ante, p. 563. Pp. 578-582.

(a) In this case, the fact that the Board waited two and onehalf years before seeking enforcement of its order was not fatal and cannot save the order entered by the Court of Appeals. Pp. 579-582.

(b) A strict judicial time limitation of the duration presented in this case would frustrate the deliberate purpose of Congress in permitting, but not requiring, resort to an enforcement decree. P. 580.

874433 0-50- 41

Floding and I cart 4. Ratner niet a ref for petitioner.

Jenn M. seat irtied the "ause ind zied a ref for respon tent.

MR. JESTIVE CLARK delivered the rinion of the Court. This case s 盏 emration to Labor Board v. Mezia Textile M da, inte. 5. 563. tebied this day. Respondent is a manufacturer of Nothing in Texas. and s engagei in interstate ommer ́s within the nearing of the labor relations acts." In December 1943. the National Labor Retations Board tesimater Lurai Tazon No. 251 of the United Garment Workers i cerca, late with the American Foteration of Labor. the exclusive bargaining representative of vertain of respondent s employees. In December 1945, the on harged the respondent with violations of 38 1 ar. 15 of the National Labor Relations Act in connection with a strike going on at that time. The Board's complaint was issued pursuant to these charges n Ari 1946; a hearing was held; the Trial Exammer intermediate report was issued: and, since no exceptions to the report were entered by the respondent the Beart on Aigist 25. 1946. adopted the

577

Opinion of the Court.

Trial Examiner's findings, conclusions and recommendations, and ordered the respondent to cease and desist from its refusal to bargain with the Union. With certain limitations, the company was also ordered to offer reinstatement and back pay to employees who had gone on strike. 70 N. L. R. B. 540 (1946).

Two and one-half years later, on February 17, 1949, the Board petitioned the Court of Appeals for the Fifth Circuit for the enforcement of its order. Respondent moved for leave to adduce additional evidence. It stated that it had bargained with the Union since the date of the order, but that no agreement had been reached; that the Union had made no effort to bargain since early in 1948; that respondent questioned whether the Union retained the majority of employees in the bargaining unit, since certain employees had informed respondent that they had left the Union, and the Union's organizer had stated, according to respondent, that a rival union had a "substantial group" within its membership; that these facts had come to respondent's attention since the "record in the instant case was closed and completed"; and finally that the passage of the statute imposing a duty upon the Union to bargain with the respondent might affect the disposition of the case before the Board.

On May 13, 1949, the Court of Appeals for the Fifth Circuit entered an order identical in pertinent part with that quoted in Labor Board v. Mexia Textile Mills, ante, p. 563. We granted certiorari, 338 U. S. 909 (1950).

Although respondent concedes that the decision in the Mexia case governs the case at bar, a single issue may deserve separate treatment. In the instant case the Board waited two and one-half years before it sought enforcement of its order. There is a suggestion that the

2 Including the Trial Examiner's rejection of the employer's allegation that the Union no longer represented the majority in the bargaining unit.

Opinion of the Court.

339 U.S.

length of the delay may have influenced the Court of Appeals in ordering the Board to take evidence on the question of compliance. We regard this as doubtful, in view of its identical action in the Mexia case, when the petition for enforcement was filed only nine months after the Board's order. But in any event we view the delay as without consequence in this case.

The Board is of course charged with primary responsibility in effectuating the policies of the Act. It has determined that those policies are advanced in some cases by resorting to the processes of negotiation with the employer rather than the compulsion, as well as the trouble and expense, of an enforcement decree. See § 202.13 of the Board's earlier regulations regarding the Labor Management Relations Act, 12 Fed. Reg. 5651, 5653 (1947). In some cases delay in enforcement may be helpful in reaching an immediate solution of the problem; in others, exhaustion of negotiation techniques before a decree is requested may consume many months after the Board's order and before such techniques fail. We are of the opinion that a strict judicial time limitation of the duration presented in the instant case would frustrate the deliberate purpose of Congress in permitting, but not requiring, resort to an enforcement decree. Cf. § 10 (b), which states a definite period of limitation regarding charges filed with the Board. Compare Labor Board v. American Creosoting Co., 139 F. 2d 193 (C. A. 6th Cir. 1943); Labor Board v. Electric Vacuum Cleaner Co., 315 U. S. 685, 697-698 (1942). We must not forget that the "question whether the settlement [with the employer] shall be accepted as definitive is

3 "The Senate amendment followed the present language of the act, which permits the Board to petition for enforcement, but does not require it to do so. The conference agreement adopts the language of the Senate amendment." H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess., p. 55.