Bazelon, Chief Judge, Wright, and McGowan, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Western States Regional Council No. 3, International
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
Petitioner unions challenge an order of the National Labor Relations Board absolving the employer-intervenors of violating Sections 8(a)(1) and (3) of the Act. 29 U.S.C. § 158(a)(1), (3). The relief they seek from us is a remand to the Board in order that it may address itself to issues which were litigated before, and resolved by, the Examiner; and which, so petitioners assert, were improperly ignored by the Board. We are of the view that, for the reasons discussed below, a remand is in order. I
This controversy originated in an effort to create a multi-employer bargaining unit among six lumber companies on the West Coast. See NLRB v. Truck Drivers Local Union No. 449, (Buffalo Linen), 353 U.S. 87, 1 L. Ed. 2d 676, 77 S. Ct. 643 (1957). Whether that effort had been successful was the issue litigated at length in the hearings before the Examiner. *fn1 He concluded that it had and, applying Buffalo Linen, held that a lockout of their employees by four of the employers when the other two were struck in the course of the bargaining negotiations did not transgress the Act.
The lockout took place in the summer of 1963. The hearings consumed some six weeks in April and May of 1964. The Examiner's report and recommendations were forthcoming on April 5, 1965. One week earlier the Supreme Court decided American Ship Building Co. v. NLRB, 380 U.S. 300, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965), and NLRB v. Brown, 380 U.S. 278, 13 L. Ed. 2d 839, 85 S. Ct. 980 (1965). In its decision six months later, the Board said that, because of these decisions, it did not need to consider the matter in the Examiner's terms, i.e., whether there was in fact a valid multi-employer bargaining unit entitled to exercise Buffalo Linen powers. It regarded the intervenors as at least bargaining jointly through a designated representative, and as having reached an impasse before the lockout occurred. Thus, said the Board, even if the lockout was insupportable under Buffalo Linen, it was legal under the principles of American Ship and Brown since this response to a bargaining impasse did not appear to have been other than economic in nature or inherently to involve hostile or discriminatory motivations against unions as such. II
The decision of a lawsuit on a basis different from the one in which it was tried is never very satisfying, and inevitably leaves a sense of unease in a reviewing court. So it is here. In the first place, the Board's decision in effect attributes to the employers a motivation for the lockout other than the one they alleged in their pleadings and sought to prove by their evidence. The employers insisted throughout the hearings that the lockout was ordered solely for the purpose of protecting the integrity of the multi-employer unit in the bargaining negotiations. The Board has, however, now said in substance that, if the employers had known of their rights as they were later to be adumbrated in American Ship, they could legally have done the same thing, even without a multi-employer unit, as a response to a bargaining impasse. But, even if they could, no one can say for certain after the fact that they would. There might well have been reasons why some or all of the four employers in question would, absent a purpose to protect a bargaining unit, have delayed or foregone the exercise of an American Ship prerogative. To be able to keep on doing business while a competitor is shut down is not a uniformly unhappy condition, as the history of the lumber industry indicates. It could with reason, therefore, be urged that the employers must have their rights in this litigation adjudged by reference to the motivation upon which they acted rather than one upon which they might have acted.
A second difficulty of this same nature is the Board's assumption that an impasse had in fact been reached. Although petitioners represent themselves as prepared to make a similar assumption for purposes of this appeal, they do not concede the fact; and they point to certain circumstances in the record which look the other way. The Examiner made no findings of any kind on this question, which is not surprising since the case was not being tried on an impasse theory. Although the Board is presumably free to make its own findings of fact from its reading of the record, no one would gainsay the desirability of the normal availability to an agency like the Board of findings of fact prepared by one who heard the evidence at first hand. And, of course, there is a serious question of fairness of procedure in relation to a litigant who has assembled and presented his evidence and conducted his cross-examination on a theory unlike the one intruded here for the first time by the Board more than a year after the record closed. It is not enough to say that, since there is evidence in the record supporting the Board's finding, there is no cause for complaint. If a different issue had been tried, the evidence might have been different.
Petitioners have not, however, asked us to invalidate the Board's order for reasons of this character, although they have alluded to some of the problems they present. They ask, rather, that the case be returned to the Board in order that the latter may re-examine its action in the light of considerations not reflected in its decision. They point out that such a remand is peculiarly appropriate at this time because the Board, at the direction of the Supreme Court, is presently taking another look at a case which, although perhaps ultimately distinguishable on its facts, is certainly within the periphery of the general problem. That problem may be broadly defined as the extent to which American Ship, which involved a single employer, has application to a multi-employer lockout.
The case in question is Newspaper Drivers & Handlers Local Union v. Detroit Newspaper Publishers Association, 382 U.S. 374, 15 L. Ed. 2d 423, 86 S. Ct. 543 (1966). When this matter was first before the Board, it decided that one employer -- the Detroit News -- violated the Act (Sections 8(a)(1) and (3)) when it locked out its employees in response to the striking of another paper -- the Detroit Free Press -- in the course of bargaining negotiations which were going on concurrently with both. 145 NLRB 996 (1964). The two papers were the sole members of the Detroit Newspaper Publishers Association, a voluntary organization which had long existed for the purpose of negotiating and administering labor contracts and handling the labor relations of its members. Although there were, thus, some elements of unity in the two employers' approach to labor relations, the Board did not regard them as constituting a true multi-employer bargaining unit, as evidenced by the Board's finding that it was an unfair labor practice for the News to lock out "any of its employees in order to support another employer which is struck by employees represented in a labor organization with which it does not bargain jointly in a multiemployer unit."
The News sought relief from the Board's order in the Sixth Circuit. In the interval between Board order and court decision, the Supreme Court decided American Ship. The Board thereupon asked the Court of Appeals to remand the case to it for further consideration in the light of American Ship. The Court of Appeals denied this request and decided the case on the merits, holding that the Supreme Court's disposition of American Ship made it impossible for the Board to hold the Detroit News in violation of the Act. 346 F.2d 527 (1965).
The Board filed a petition for rehearing with the Sixth Circuit. In that petition the Board represented that the Supreme Court in American Ship "did not pass on the question of whether an employer in one bargaining unit may lockout, not directly to advance his own bargaining position, but in support of the bargaining position of an employer in another bargaining unit . . ." It said that American Ship had not reached the question presented in Detroit News ; and that the issue was, as it put it, "at the very least an open one." Rehearing was denied; certiorari was sought and granted; and the Supreme Court simultaneously vacated the Sixth Circuit judgments and remanded to the Board for further consideration in the light of American Ship. *fn2 When it took this action the Supreme Court had before it a memorandum submitted by the Board in which it again asserted that, since American Ship ...