National Labor Relations Board v. Pure Oil Co.

HOLMES, Circuit Judge. The order here sought to be enforced was made in pursuance of a formal stipulation duly signed by attorneys for each party. It was also based upon findings of fact and a stipulation that it should have the same force and effect as if “entered by the Board after a full hearing, presentation of evidence, and making of findings thereon.” The agreement is not denied. Respondent’s contention is that the petition for enforcement should be dismissed because, since the entry of the order, the issues have become moot. It avers compliance with that portion of the order which requires respondent to take affirmative action. The remaining subject matter of this proceeding, it says, has been fully and finally disposed of by acts and transactions entirely independent of respondent and beyond its control. In these circumstances, it argues that the order of the Board has nothing upon which to operate, and that any effort to enforce it would be a vain and idle proceeding. The order is in the usual form, and is identical in terms with that agreed upon in the stipulation. Several months after its -entry, the Board served notice on all of the parties of its intention to set aside its finding of fact and vacate its order, unless sufficient cause to the contrary should be shown. Thereafter, the respondent filed its objection to the proposed action and requested a hearing for the purpose of oral argument. Pursuant to notice, such a hearing was had and briefs filed; the respondent and Oil Workers’ International Union, Local 228, participated therein. The respondent contended that the Board had no power to set aside its findings and vacate its order; that, if any acts of respondent constituted infractions of the Board’s order, they should be dealt with under the procedure provided by Section 10(e) of the National Labor Relations Act, 29 U.S. C.A. § 160(e). The language of respondent was interpreted by the Board to have reference to acts of the same type as those alleged in the complaint and covered by the order. Consequently, respondent’s position was held to be that such acts were to be dealt with by the procedure provided for enforcement of such orders upon petition to the appropriate Circuit Court of Appeals. Upon this position of respondent, without deciding its power in the circumstances, the Board withdrew its notice, and filed a petition in this court for enforcement of the order.- We do not think the controversy with which the order deals has become moot. [498] The respondent is required to desist from dominating the Refinery Workers’ Union of the Smith’s Bluff Refinery, or any other labor organization of its employees. While it is true that the Smith’s Bluff Refinery has been disbanded, it may be reorganized, or a similar organization formed under another name, with the same employees. The act does not permit an evasion of this kind, and the order under consideration is formed and phrased to prevent it. If it be conceded that respondent has taken the affirmative action required of it, there are certain desist-provisions of the order which operate entirely prospectively. In National Labor Relations Board v. Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307, it was held that an order of this character, lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made. See, also, National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862; National Labor Relations Board v. Oregon Worsted Co., 9 Cir., 96 F.2d 193. Furthermore, in view of respondent’s stipulation as to the force and effect of the order and its objection to the proposed action of the Board to vacate it, particularly in view of the delay obtained by the action of the Board in withdrawing its notice to vacate and petitioning this court for an enforcement of the order, we think the respondent should not be allowed at this time to question the validity of the order or the propriety of this proceeding to enforce it. In its brief, objecting to further action before the Board, the respondent not only contended that the Board was without power to set aside its findings and vacate its order, but suggested the very proceeding which it is now objecting to, using the following language: “In respect of the second prohibition, it is clear that if further proceedings are deemed necessary, they must be had in conformity with the Act, either in the form of enforcement proceedings under Section 10(e) or under and pursuant to a proper and valid charge, forming the basis for the consideration of issues other than those hereinbefore fully litigated and disposed of.” Having advocated this proceeding and obtained a substantial advantage by so doing, we think the respondent is now estopped to object to the enforcement of the order by this court. The petition of the Board should be, and hereby is, granted.-