CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
Stone, Black, Reed, Frankfurter, Douglas, Murphy, Rutledge, Burton; Jackson took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Cheney California Lumber Company, the respondent, operated a sawmill at Greenville, California. Some employees of the Company were members of Lumber and Sawmill Workers, Local 2647, affiliated with the American Federation of Labor. The union complained to the National Labor Relations Board that the Company had engaged in unfair labor practices, in violation of § 8 of the Wagner Act, 49 Stat. 449, 452, 29 U. S. C. § 158. Following the usual procedure, there was a hearing before a trial examiner who made an intermediate report, including specific recommendations for a cease-and-desist order. The Company filed no exceptions to this report, nor did it request an oral argument before the Board. Upon due consideration, the Board adopted the findings, conclusions, and recommendations of the trial examiner. 54 N. L. R. B. 205.
Thereupon the Board asked the Circuit Court of Appeals for the Ninth Circuit to enter a decree upon its order. The Company then proposed modifications of the Board's order, which were granted by the court below. 149 F.2d 333. The Government petitioned for certiorari urging that one of the changes made by the Circuit Court of Appeals was based on a misconception of Labor Board v. Express Publishing Co., 312 U.S. 426, as to the allowable scope of the Board's power "to effectuate the policies" of the Act. § 10 (c), 49 Stat. 454, 29 U. S. C. § 160 (c). So we brought the case here. 326 U.S. 706. Upon the argument, this was the only modification to which the Government objected. We shall not consider the others. The court below struck out from the Board's order paragraph 1 (b) whereby the Company was ordered, after appropriate treatment of the unfair labor practice arising from prohibited discharge of employees, to cease and desist from
"(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act."
The court found warrant for its excision of this provision in Labor Board v. Express Publishing Co., supra. That case, however, recognized that it was within the power of the Board to make an order precisely like 1 (b). It merely held that whether such an inclusive provision as 1 (b) is justified in a particular case depends upon the circumstances of the particular case before the Board. See 312 U.S. at 433, 437-38. Here the trial examiner recommended the inclusion of 1 (b) on the basis of his review of past hostilities by the Company against efforts at unionization; no exception was made either to the findings or to this recommendation; upon full consideration of the record the Board adopted the trial examiner's
recommendation; no objection was raised by the Company until after the Board sought judicial enforcement of its order. The objection came too late.
When judicial review is available and under what circumstances, are questions (apart from whatever requirements the Constitution may make in certain situations) that depend on the particular Congressional enactment under which judicial review is authorized. Orders of the National Labor Relations Board are enforceable by decrees of circuit courts of appeals. In such an enforcement proceeding, a court of appeals may enforce or modify or set aside the Board's order. § 10 (e), 49 Stat. 454, 29 U. S. C. § 160 (e). Since the court is ordering entry of a decree, it need not render such a decree if the Board has patently traveled outside the orbit of its authority so that there is, legally speaking, no order to enforce. But the proper scope of a Board order upon finding unfair labor practices calls for ample discretion in adapting remedy to violation. We have said that "in the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review." Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194.
A limitation which Congress has placed upon the power of courts to review orders of the Labor Board is decisive of this case. Section 10 (e) of the Act commands that "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." We have heretofore had occasion to respect this explicit direction of Congress. Marshall Field & Co. v. Labor Page 389} Board, 318 U.S. 253; and see May Department Stores Co. v. Labor Board, 326 U.S. 376, 386, n. 5. By this provision, Congress has said in effect that in a proceeding for enforcement of the Board's order the court is to render judgment on consent as to all issues that were contestable before the Board but were in fact not contested. Cf. Pope v. United States, 323 U.S. 1. We can say of this case, as was said of the Marshall Field case, supra, that it "gives emphasis to the salutary policy adopted by § 10 (e) of affording the Board opportunity to consider on the merits questions to be urged upon review of its order." Marshall Field & Co. v. Labor Board, supra, at 256. The appropriateness of such a prohibition as the Board's order contains depends, as the Express Publishing Company case, supra, abundantly shows, upon evidence found by the Board disclosing a course of conduct against which such an order may be the only proper remedy. The Board here so found. Justification of such an order, which necessarily involves consideration of the facts which are the foundation of the order, is not open for review by a court if no prior objection has been urged ...