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National Labor Relations Board v. Enterprise Association of Steam

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT.


January 30, 1961

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC, SPRINKLER, PNEUMATIC TUBE, ICE MACHINE AND GENERAL PIPEFITTERS OF NEW YORK AND VICINITY, LOCAL UNION 638, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF PLUMBING AND PIPEFITTING INDUSTRY OF UNITED STATES AND CANADA, ET AL., RESPONDENTS.

Before HINCKS, WATERMAN and MOORE, Circuit Judges.

Per Curiam: Since the respondents did not except to the breadth of the order recommended by the Trial Examiner, the order adopted by the Board should not have been modified because of its breadth. In providing for enforcement petitions by the Board to the courts of appeal, Congress expressly limited the scope of judicial review. It cautioned:

"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."

Sec. 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. ยง 160(e). In cases involving the breadth of orders of the Board, this limitation was recognized by this Court in N.L.R.B. v. Steel, etc., Fabricators, Local 810, Int'l Bhd. of Teamsters, 253 F.2d 832, 834, and in Precision Fabricators v. N.L.R.B ., 204 F.2d 567, and indeed, is required by N.L.R.B. v. District 50, United Mine Workers of America, 355 U.S. 453. The decision in Communications Workers v. N.L.R.B ., 362 U.S. 479, is not to the contrary. It does not there appear that the breadth of the order which the court narrowed had not been objected to before the Board and the brief, unanimous, Per Curiam opinion contains nothing to suggest that the court intended to overrule its recent holding in N.L.R.B. v. District 50, United Mine Workers of America, supra, also a unanimous decision.

We note that in N.L.R.B. v. Ochoa Fertilizer Corporation, 1 Cir., 283 F.2d 26, and N.L.R.B. v. Brandman Iron Co ., 6 Cir., 281 F.2d 797, those courts assumed to narrow orders not objected to before the Board. But those cases seem not to reconcile the action taken with the jurisdictional limitation of Sec. 10(e) or with the Supreme Court decision cited above. We will therefore adhere to our earlier decisions.

Accordingly, the last paragraph of our opinion of November 25, 1960 is withdrawn and the order will be enforced without modification.

19610130

© 1998 VersusLaw Inc.



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