543

Operor of the Court.

what extent its order has been complied with by respondent; (2) whether and why, if the order has been complied with, the matter should not be dismissed as moot; and (3) if the matter is not moot, what recommendations or requests the Board has to make in the premises . .

In

We think it plain from the cases that the employer's compliance with an order of the Board does not render the cause moot, depriving the Board of its opportunity to secure enforcement from an appropriate court. deed, the Court of Appeals for the Fifth Circuit has apparently recognized this rule both before and after the decision in the instant cases. A Board order imposes a continuing obligation; and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree. As the Court of Appeals for the Second Circuit remarked, "no more is involved than whether what the law already condemned, the court shall forbid; and the fact that its judgment adds to existing

* Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 271 (1458); Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 230 (1938): Labor Board v. Crompton-Highland Mills, 337 U. S. 217, 225 (1949); Labor Board v. Draper Corp., 159 F. 2d 294, 297 (C. A. 1st Cir. 1947); Labor Board v. Remington Rand, 94 F. 2d 862, 869-870 (C. A. 2d Cir. 1938); Labor Board v. Condenser Corp., 125 F. 2d 67, §1 (C. A. 3d Cir. 1942); Labor Board v. Baltimore Transit Co., 140 F. 2d 51, 55 (C. A. 4th Cir. 1944); Labor Board v. Toledo Desk & Fir C, 158 F. 2d 426 (C. A. 6th

Cir. 1946;

Board

125 F. 2d 387, 388 (C. A. o., 129 F. 2d 222, 224 an Potash & Chemical Pueblo Gas & Fuel Co. 10th Cir. 1941). Cf. & Rubber Co., 304

140 F. 2d 883, 884 9 F. 2d 241 (1950).

川

Opinion of the Court.

339 U.S.

sanctions that of punishment for contempt, is not a circumstance to which a court will ordinarily lend a friendly ear." Labor Board v. General Motors Corp., 179 F. 2d 221, 222 (1950). The Act does not require the Board to play hide-and-seek with those guilty of unfair labor practices.

That the respondent doubts the Union's ability to muster a majority of the employees in the bargaining unit does not justify the denial of an enforcement decree. Explicit congressional policy stands in the way of permitting the employers to stall enforcement of the Board's orders on this ground. Under § 9 (c) of the Act "an employee or group of employees or any individual or labor organization acting in their behalf" may "assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 9 (a) . . . ." § 9 (c) (1) (A) (ii). Petitions by the employer concerning selection of bargaining representatives are limited to those "alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9 (a) § 9 (c) (1) (B). To authorize the employer to assert diminution in membership in the certified union in an enforcement proceeding subverts the statutory mandate to leave these matters to the Board in separate proceedings under § 9 (c).

. . . .

"See Labor Board v. Remington Rand, 94 F. 2d 862, 869-870 (C. A. 2d Cir. 1938). See also, §§ 203.46, 203.47 of the Board's regulations under the Wagner Act, 11 Fed. Reg. 177A-605, 177A-610 (1946), and §§ 203.52 and 203.53 of the rules printed at 12 Fed. Reg. 5651, 5662 (1947); Labor Board v. Biles-Coleman Lumber Co., 96 F. 2d 197 (C. A. 9th Cir. 1938). Compare Franks Bros. Co. v. Labor Board, 321 U.S. 702, 705-706 (1944).

The Board has held that it is the forum before which an employer may challenge a certified union's continued representative status, Matter of Whitney's, 81 N. L. R. B. 75 (1949), in § 9 (c) proceedings.

563

Opinion of the Court.

It is of course equally clear that a motion for leave to adduce additional evidence pursuant to § 10 (e) of the labor relations acts is "addressed to the sound judicial discretion of the court," Southport Petroleum Co. v. Labor Board, 315 U. S. 100, 104 (1942); Labor Board v. Indiana & Michigan Electric Co., 318 U. S. 9 (1943). We are told that the order of the Court of Appeals is justified in this case because the issue of compliance, so clearly irrelevant in the ordinary course of review, is imbued with relevance should the respondent's counsel move to adduce additional evidence when the case reaches the Court of Appeals.

The cases are to the contrary. Labor Board v. Condenser Corp., 128 F. 2d 67, 81 (C. A. 3d Cir. 1942); Labor Board v. Swift & Co., 129 F. 2d 222, 224 (C. A. 8th Cir. 1942); Labor Board v. American Potash & Chemical Corp., 98 F. 2d 488, 493 (C. A. 9th Cir. 1938), and cases therein cited. If compliance with an order of the Board is irrelevant to the reviewing court's function after the new evidence has been adduced, we do not see that there is point in adducing evidence of that compliance. This Court has emphasized that the "power to adduce additional evidence granted to the Circuit Court of Appeals by § 10 (e) cannot be employed to enlarge the statutory scope of judicial review." Labor Board v. Donnelly Garment Co., 330 U. S. 219, 234–235 (1947). As the managers on the part of the House of Representatives for the Conference Committee reported concerning the Wagner Act, that statute contemplated that there be "immediately available to the Board an existing court decree to serve as a basis for contempt proceedings," in the event a renewal of the unfair practice occurs after the enforcement order. H. R. Rep. No. 1371, 74th Cong., 1st Sess., p. 5. See also H. R. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess., p. 55; compare H. R. Rep. No. 245, on H. R. 3020, 80th Cong., 1st Sess., pp. 43, 93. Section 10 (e), which "in effect formulates a famil

FRANKFURTER, J., dissenting.

339 U.S.

iar principle regarding newly discovered evidence," Labor Board v. Donnelly Garment Co., supra, 330 U. S. at 234, does not authorize a discretion so broad that evidence irrelevant as a matter of law may be considered "material." Compare Griffin v. United States, 336 U. S. 704, 708 (1949), with United States v. Johnson, 327 U. S. 106 (1946).

The cases cited by respondent do not touch this controlling issue. The order of the Court of Appeals must be vacated and the enforcement of the Board order decreed pursuant to § 10 (e), unless "extraordinary circumstances" are pleaded which justify the respondent's failure to urge its objections before the Board.

It is so ordered.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins, dissenting.t

Compliance with an order of the National Labor Relations Board is, of course, no defense to the Board's petition for judicial enforcement of its order. Therefore, a Court of Appeals would be abusing the authority conferred by § 10 (e) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,* if, upon such a petition for enforcement, it even tempo

+[NOTE: This dissent applies also to No. 435, National Labor Relations Board v. Pool Manufacturing Co., post, p. 577.]

*Section 10 (e) provides in part:

"If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its members, agent, or agency, and to be made a part of the transcript." 61 Stat. 148, 29 U. S. C. (Supp. III) § 160 (e).