On Application for Enforcement of an Order of The National Labor Relations Board
Before Swygert, Pell and Bauer, Circuit Judges.
This case is before the court on the application of the National Labor Relations Board (Board) for enforcement of its order issued on February 1, 1978, against Gold Standard Enterprises, Inc., Gold Standard Liquor Store at Ridge Avenue, Chalet Wine and Cheese Shops Ltd. at Fullerton Avenue, and Chalet Wine and Cheese Shops, Ltd. at Highland Park (Gold Standard). The Board's Decision and Order is reported at 234 NLRB No. 64 (1978).
Because some developments occurring during the course of litigation were not brought to the attention of the panel hearing oral argument in this case until that argument was well advanced, which developments we regard, upon consideration, as dispositive of this case, we will set out those particular matters herein.
Before doing so, we will mention other matters which Were brought to the attention of the court by the briefs filed by the parties or the appendix filed by the Board. A hearing was held on the General Counsel's complaint before an Administrative Law Judge (ALJ) on March 28 and 29, 1977. After setting forth the statement of the case and findings of fact, the ALJ concluded as a matter of law that Gold Standard had not engaged in unfair labor practices within the meaning of Section 8(a)(4), (3) and (1) of the Act and accordingly dismissed the complaint in its entirety. The Board in its Decision and Order by a 2 to 1 decision declined to agree with the disposition by the ALJ and found as a matter of law that the unfair labor practices as charged in the complaint had been committed by Gold Standard. The Board order was in part to cease and desist certain unfair labor practices (the negative portion of the order) and in part to take certain affirmative action. The negative and affirmative aspects are succinctly summarized in the notice to employees which Gold Standard was required to post at its places of employment:
WE WILL NOT threaten our employees that they or others will suffer bodily harm because of their union or other protected concerted activities.
WE WILL NOT discriminate against our employees by discharging and failing to reinstate them or failing to transfer them because of their union activities.
WE WILL NOT discriminate against our employees because they filed unfair labor practice charges with the National Labor Relations Board.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act.
WE WILL offer Helen Alcantar immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights or privileges.
WE WILL make Helen Alcantar whole for any loss of earnings or other benefits she suffered as a result of the discrimination against her, together with interest.
WE WILL offer Billie Van Wieren immediate transfer to the position to which she requested transfer at our Fullerton Avenue Chalet in Chicago, Illinois, displacing, if necessary, any employee assigned to or working in that position since the date of her request, and we shall reimburse her for any travel expenses incurred by reason of our unlawful refusal to transfer her plus interest.
Board Member Murphy, dissenting, agreed with the ALJ that Gold Standard did not violate the Act as alleged, pointing out that the ALJ had made his finding upon the entire record from his observation of the witnesses and that unless the preponderance of the evidence on the record clearly undermined those findings the Board should not disturb them. She also pointed out that the Board had always been reluctant to reverse an ALJ's credibility resolutions, especially where such resolutions were based on the demeanor of the witnesses. One of the principal bases for the majority, according to Member Murphy, in not accepting the credibility determination of the ALJ was that the ALJ had omitted any reference to the testimony of two employees which the majority termed as being uncontradicted. Member Murphy observed that in her opinion it was implicit in the ALJ's general statement regarding credibility that he had discredited the testimony of any witnesses to the extent such testimony conflicted with the facts as described by the witnesses whom he had credited.
The present case was initiated in this court on October 26, 1978, by the Board filing its application for "enforcing in whole said order (of February 1, 1978) of the Board, and requiring (Gold Standard) to comply therewith." That something less than the "whole said order" was that which the Board sought to have this court enforce was not reflected in the briefs of the parties filed in the present case other than in the Board's brief, a final footnote contained the following unexplained reference, "Any company argument that the case is moot because of technical compliance fails in the face of the settled principle that Board orders impose a continuing obligation barring any resumption of unfair labor ...