Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges.
Petitioners, Foreman's Association of America, Chapter 44, and 82 individuals formerly employed, as supervisory employees, by Carnegie-Illinois Steel Corporation, hereinafter referred to as Carnegie, seek to set aside, in part, an order of the National Labor Relations Board, which granted relief as to one petitioner and dismissed the complaint as to all others, the Board finding that there had been no unfair labor practices on the part of Carnegie in discharging the individual petitioners. The employer has been permitted to intervene and has filed a motion to dismiss the proceeding for want of jurisdiction.
Carnegie's motion rests on its contention that petitioners are not "persons aggrieved by a final order of the Board." within the meaning of Section 10(f) of the National Labor Relations Act, 29 U.S.C.A. Section 160(f), and that, consequently, this Court is without jurisdiction to entertain their petition for review of the order dismissing the unfair labor practices complaint. Carnegie urges that "persons aggrieved," as that term is used in Section 10(f), includes only persons aggrieved by a final order prohibiting them from engaging in unfair labor practices, and does not embrace those aggrieved by a final order dismissing an unfair labor practice complaint. Petitioners, however, contending that the language conclusively negatives the existence of any such limitation, insist that they are "persons aggrieved," within the meaning of the statute, and, as such, entitled to prosecute in this Court their petition to review the order dismissing the complaint.
Section 10(f), provides that "Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in the * * * court of appeals * * * by filing in such court a written petition praying that the order of the Board be modified or set aside." A literal interpretation of this language would seem to establish that the Court has jurisdiction, for it is obvious that the Board's dismissal of the unfair labor practices complaint constitutes a "final order * * * denying * * * the relief sought" and that petitioners, Carnegie's discharged employees, are "persons aggrieved" thereby.*fn1 The employer, however, insists that this interpretation would lead to results beyond the intention of Congress.
Carnegie urges that the Congress, when it enacted the law, did not thereby intend to bestow any private right of action upon employees as such, but rather to create only rights of a purely public nature, enforceable only by the Board. This argument is based largely on an excerpt from the House Committee Report (74th Cong., 1st Sess., Report No. 1147, page 24) as follows:
"No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern, by their nature and consequences, present or potential; the proceeding is in the name of the Board, upon the Board's formal complaint."
This quotation, however, considered in its relation to the rest of the report, makes it clear that the Committee, when it said, "No private right of action is contemplated," was referring to the right to institute an unfair labor practice proceeding, and did not mean that a person aggrieved by a final order of the Board entered at the conclusion of such a proceeding did not have a right to secure judicial review of that final order, as provided for in Section 10(f) of the Act.*fn2
Nor is this conclusion at all inconsistent with the decisions of this Court, in Blankenship, et al. v. Kurfman, et al., 96 F.2d 450, 454, and Stewart Die Casting Corp. v. N.L.R.B., 132 F.2d 801, to the effect that the Act does not create, for employees, rights which are enforceable independently of Board action, for here the petitioners are not acting independently of the Board but are seeking review of a final order entered by the Board.*fn3 And that the courts have not accepted Carnegie's contention is apparent from Amalgamated Workers v. Consolidated Edison Co., 309 U.S. 261, 266, in which the Supreme Court characterized the "opportunity afforded to private persons by Sec. 10(f)" as "an opportunity * * * to contest a final order of the Board, not to enforce it," and the statement by this Court, in Stewart Die Casting Co. v. N.L.R.B., 132 F.2d 801, 804, that "The employee is, by this section (Sec. 10(f)), given an opportunity to contest the order of the Board."
Similarly, the intervenor's argument that the purpose of Section 10(f) was to provide for judicial review of orders prohibiting unfair labor practices but not of orders dismissing unfair labor practice complaints finds no support in the language of the Act itself. Indeed, Section 10(f) expressly provides that judicial review may be had of a final order granting or denying the relief sought.Since an order dismissing an unfair labor practices complaint is quite obviously a final order denying the relief sought, it is evident that to adopt Carnegie's contention that such an order is not subject to review would be equivalent to striking the words "or denying" from the Act. The courts have accordingly taken the view that Section 10(f) means exactly what it says, - that Section 10(f) gives them jurisdiction to review a Board order dismissing a complaint. Jacobsen v. N.L.R.B., 120 F.2d 96, 100 (CA-3); Lincourt v. N.L.R.B., 170 F.2d 306, 307 (CA-1); General Drivers, Chauffeurs & Helpers Local 886, A.F.L., v. N.L.R.B., 25 L.R.R.M. 2237 (CA-10). Typical of the attitude of these courts is that of the Court of Appeals for the Third Circuit, which stated, in the Jacobsen case, supra, that
"The Board having * * * entered a final order dismissing the complaint, we are of the opinion that this court, pursuant to the provisions of Section 10(f) of the Act * * * has jurisdiction upon the petition of those aggrieved by that order to review it." The Ninth Circuit, in Anthony v. N.L.R.B., 132 F.2d 620, has taken the contrary view, but its decision, which was rendered upon petitioner's request for an order granting him leave to file a petition for review in forma pauperis, has not been followed in any other circuit.
In short, petitioners in this case are merely seeking to follow the procedure which both the Supreme Court and this Court have indicated is afforded them by the provisions of Section 10(f) of the Act, - an opportunity to contest, (though not to enforce), a final order of the Board. To deny them this right, to adopt the intervenor's contention that only an order prohibiting unfair labor practices (i.e., an order granting the relief sought in the complaint) is subject to review would be to ignore the clear and unambiguous statutory provision that an aggrieved person may secure review of "a final order of the Board granting or denying * * * the relief sought." Consequently, the intervenor's motion to dismiss for lack of jurisdiction is denied.
The complaint was based upon a charge by petitioners and others that Carnegie had violated the Act in discharging and refusing to reinstate the individual petitioners. A trial examiner conducted hearings. The Board found the facts to be substantially as set forth in the examiner's report but concluded that, though the examiner had believed the discharges in violation of the Act, they were, in fact, reasonable and in no wise violative of the Act.
The facts out of which this controversy arose are reflected to some extent by the decision of this Court in Keserich v. Carnegie-Illinois Steel Corporation, 163 Fed.(2d) 889, wherein the Court concluded that Keserich, one of the present petitioners, had been discharged for legitimate cause.We shall ...