Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
Petitioner, representing some 700 newspaper publishers in the United States, filed charges with the National Labor Relations Board (hereinafter called "Board") that the International Typographical Union and certain of its locals and officers (hereinafter called "ITU") had engaged and were engaging in unfair labor practices prohibited by the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151, et seq.,*fn1 (hereinafter called the "Act"). On November 21, 1947, the general counsel of the Board issued his complaint alleging that ITU had violated Secs. 8(b)(1)(A), 8(b)(1)(B), 8(b)(2), and 8(b)(6) of the Act. After extended hearing the trial examiner on August 8, 1948, issued his intermediate report, among other things finding violations of Secs. 8(b)(2), 8(b)(1)(A), and 8(b)(1)(B). More than 14 months later, on October 28, 1949, the Board issued its decision and order and served same on respondents.
The Board found that certain conduct of ITU and its officers violated Secs. 8(b)(2) and 8(b)(1)(B) of the Act. The Board also decided that the Act did not prohibit certain practices of which complaint was made, and declined to decide certain additional issues which had been raised by the complaint. It also decided it need not consider evidence in support of the complaint relating to events occurring after March 27, 1948, the date of the issuance of a temporary injunction by the United States District Court for the Southern District of Indiana. The Board specifically held that ITU had not violated Sec. 8(b)(6) of the Act.
The Board issued an order requiring ITU and its officers to cease and desist from violating Secs. 8(b)(2) and 8(b)(1)(B) of the Act and to post certain notices. The order dismissed the complaint in so far as it alleged violations of Secs. 8(b)(1)(A) and 8(b)(6) of the Act.
The Board did not petition for enforcement of its order for some 15 months.
On January 25, 1951, petitioner filed with this court a "petition to review and modify an order of the National Labor Relations Board." The petition sought different treatment for various parts of the Board's order. First, it asked enforcement of the order requiring that ITU cease and desist from violation of Secs. 8(b)(2) and 8(b)(1)(B) of the Act, and to post certain designated notices. Second, it sought to delete from the order that portion which dismissed the allegations of the complaint that ITU had violated Sec. 8(b)(6) of the Act, and to add a provision that ITU had violated said section, and an order for ITU to cease and desist from violating said section, and that this court order enforcement of the order as thus modified. Third, it asked that this court determine the Board erred in failing to state findings of fact as to whether ITU had committed certain acts charged in the complaint and whether such acts were labor practices prohibited by Sec. 8(b)(1)(A) of the Act, in which case the petition requested that the cause be remanded to the Board to make such findings and determination. The petition for review also named ITU as respondent.
On January 29, 1951, the Board filed with this court a petition for an enforcement of its order,*fn2 and also a similar petition in the case of National Labor Relations Board v. Chicago Typographical Union No. 16 and International Typographical Union.*fn3
The matter presently before us for consideration is presented by two motions filed by the Board and ITU respectively. The Board moves that Paragraph 3 of the prayer of said petition to review and modify be stricken in its entirety on two grounds: (1) that in so far as Paragraph 3 and Appendix A pray this court to enter a decree in the terms of the Board's order, petitioner is not a person aggrieved within the meaning of Sec. 10(f) of the Act; and (2) that in so far as Paragraph 3 and Appendix A pray that this court enter a decree providing a remedy for violations of the Act, the allegations with respect to which the Board has ordered dismissed, the limit of the court's reviewing power is to pass upon the validity of such dismissal.
As to the first ground, Sec. 10(f) of the Act states 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 * * *." As the Board has now petitioned this court for the enforcement of its order, it cannot be said that petitioner is aggrieved as to that part of the order which is favorable to its contentions. Furthermore, it is unimportant to petitioner whether this court enters part of its order pursuant to the petition filed by the Board or in response to petition which it filed herein.The Board's motion to strike that part of the prayer of the petition asking enforcement of the part of the Board's order favorable to petitioner is granted.
As to the second ground, the prayer in the petition asks this court to enter a decree enjoining ITU from violations of Sec. 8(b)(6). Petitioner asks this court not only to decide that the Board was in error in dismissing the complaint in so far as it alleged violation of Sec. 8(b)(6), but asks that the decree of this court provide a remedy for the alleged violation of this section.
Petitioner insists it is only asking this court to proceed within the limits of Sec. 10(f) of the Act,*fn4 that is, to modify the order of the Board and then to enforce the order as so modified. Petitioner also urges that this court may proceed under the Administrative Procedure Act, 5 U.S.C.A. 1009(e), which authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed."
The Board's delay of 15 months in seeking to enforce its order might, under certain circumstances and conditions, beconsidered unreasonable, but we need not pass on that point as we think the question is moot. Furthermore the denial of relief sought by the petitioner or prayed for in the complaint filed by the general counsel of the Board cannot in our opinion be considered "agency action unlawfully withheld." Nor need we consider at this time that part of the petition to review and modify which seeks remand to the Board to make certain findings and determinations, as the Board concedes that if this court should determine when this case is presented on the merits that the Board was in error as a matter of law, remanding is the proper procedure. In fact the Board insists that upon a finding of error, the only power this court has is to order a remand, and that it lacks the power to fashion any remedy.
In Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York, 309 U.S. 261, 266, 60 S. Ct. 561, 564, 84 L. Ed. 738, in referring to Sec. 10(f) of the Act, the court said: "* * * But that opportunity is given to a person aggrieved by a final order of the Board * * *. That is, it is an ...