Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
SWAIM, C.J.: Petitioner, Kovach, initiated this proceeding by filing a charge accusing both his former employer, Studebaker Corporation (hereafter referred to as Company), and his union, Local No. 5 UAWCIO (hereafter referred to as Union), of unfair labor practices. The complaint which was filed in due course by the General Counsel, was dismissed by the Board. Kovach is here petitioning this Court, pursuant to 29 U.S.C.A. § 160(f), to review the Board's decision. Both the Company and the Union are intervenors in this appeal. Since the Union has challenged the timeliness of the petition for review, we shall first direct our attention to that question.
The Board's final order was entered on December 10, 1954, and on April 13, 1955, four months later, the petitioner filed a motion for reconsideration with the Board.This motion was denied on May 17, 1955, and Kovach filed his petition for review on May 31, 1955. Thus, less than six months elapsed between the Board's final order and the petition for review, and during one month of that time the Board was holding petitioner's motion to reconsider.
Title 29 U.S.C.A. § 160(f), § 10(f) of the Labor Management Relations Act, which gives an aggrieved party the right to petition a Court of Appeals for review of the Board's decision, does not fix a time limit within which such a petition may be filed. The Union argues that the sixty days allowed by the Federal Rules of Civil Procedure for appeals in cases in which the United States is a party should apply. In the alternative the Union insists that the right to file a petition for review should be limited to a reasonable time after the Board's final order. Kovach, on the other hand, maintains that he has as much time to petition for review of the decision under § 10(f) as the Board has to petition for enforcement under § 10(e), and that the delay between the Board's decision and his petition for review was not unreasonable.
We do not think that the time limitation upon appeals in Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C.A., controls the time within which petitions to review a decision of the Labor Board may be filed. Strictly speaking a petition to review is not an appeal within the meaning of Rule 73. It is an independent statutory proceeding, initiated in the Court of Appeals, to review the order of the Board. A time limitation of the right to petition for such a review if fixed by statute would be in the nature of a statute of limitations or of a condition to the right. In Haas v. Overholser, D.C. Cir., 223 F.2d 314, where a former civil service employee brought suit in the District Court to set aside an administrative decision to terminate his employment, the Court of Appeals held that the former employee was guilty of laches because he had waited more than two years after termination of his employment.
The cases cited by Kovach involve petitions for enforcement by the Board, rather than petitions for review by an aggrieved person. It has been held that the Board may successfully petition for enforcement of an order two and one-half years after the order was entered. National Labor Relations Board v. Pool Manufacturing Co., 339 U.S. 577. One case cited by Kovach, however, intimates that a petition to review is subject to no more limitation than is a petition for enforcement. In National Labor Relations Board v. Central Dispensary & Emergency Hospital, D.C. Cir., 145 F.2d 852, 854, the court said:
"While the Board delayed over a year in bringing the case before use for enforcement respondent cannot now take advantage of that fact because during the entire period it lay within its own power to seek relief."
It does not seem reasonable, however, that either § 10(f) or § 10(e) of the Act should be without any time limitation. The possibility that the Board's decision may be reversed on petition to review should not be allowed to keep the issues in an unsettled state indefinitely. And the respondent should, at some point in time, be able to assume that the Board has chosen not to enforce its order. Time is of course the major factor, but under the present Act the passage of time alone does not seem to be enough to cut off a party's rights. Time must cause or be accompanied by a change in position which would make it unfair to enforce rights that have been allowed to lie dormant. These principles are of course the foundation of the equitable doctrine of laches, and it seems to us that the use the courts have made of that doctrine is the proper answer in the situation confronting us. Each case should be viewed independently in the light of all its surrounding facts. The party raising the issue of timeliness should not only show that more time has elapsed than was reasonably necessary in the particular situation, but he should also show that during that time his opponent has gained some advantage he did not originally have or that he himself has been prejudiced by the delay in bringing the action.
The Union here has shown nothing but the passage of time, and it does not even appear that the 172 days that did elapse constituted an unreasonable amount of time. The petition for review was timely filed and we therefore may proceed to review the facts of the case and the Board's decision thereon.
There is no disagreement as to the basic facts. The controversy is over their interpretation and the effect of the law as applied to them. It has always been a general practice among the employees of the Studebaker Motorcar Company to drive Studebaker cars. Many employees thought that they should demonstrate their loyalty to the Company in that way. In 1953, when automobile production caught up with demand, Studebaker was harder hit than most companies. Employees went on a "one-week-on-one-week-off" schedule, and there was widespread fear that the Company would not be able to continue its perations. During this period the employees became very anxious about the business of the Company and the traditional feeling that Studebaker employees should buy Studebaker cars was greatly accentuated.
Those who owned "off-brand" (i.e. other than Studebaker) cars were severely criticized. An attempt was made to have the Union adopt a rule that employees could drive only Studebakers. The President of the Union spoke out strongly against such a Union policy and the proposal was defeated. Groups of workers, however, began refusing to work with fellow employees who drove "off-brand" cars. In each case the employees in a certain department would stop work. When asked why, they would say that they were protesting against a particular employee (usually in that department) because he drove an "off-brand" car. They would say that as soon as the offending person would get rid of his "off-brand car or would be removed from their department they would resume work. The foreman would then take the offending worker to the office of Mr. Beutlich, the Company's Assistant Director of Industrial Relations. Mr. Beutlich would say that as far as the Company was concerned its employees could buy whatever make of car they preferred, but that it could not afford a shut-down because of one man and that it would have to take the offending worker's badge until he could make peace with his fellow workers. Without a badge no one could enter the plant, so this action was in effect a layoff. Many of the employees so laid-off, including the petitioner, Kovach, have never returned to work at Studebaker.
On the basis of Kovach's charge the General Counsel filed a complaint citing the Company and the Union for unfair labor practices in connection with nineteen employees who had been laid-off because their fellow workers refused to work with them because they persisted in driving "off-brand" cars. Evidence on the complaint was heard by a Hearing Examiner who recommended that the complaint be dismissed. The Board, after reviewing the Hearing Examiner's report and the General Counsel's exceptions thereto, dismissed the complaint. The complaint charged the Company and the Union with unfair labor practices under several sections of the Act. We shall discuss the merits of these charges according to the section upon which they are based. But first we shall answer the Company's contention that the petitioner Kovach has no standing to petition for review of the Board's order.
Section 10(f) of the Act 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 ...