E.I. Du Pont De Nemours & Company (Chestnut Run) v. National Labor Relations Board, Walter Slaughter, Intervenor

733 F.2d 296

• Court: Court of Appeals for the Third Circuit
• Decided: May 15, 1984
• Docket: 82-3363
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

On December 29, 1983, this Court filed a majority opinion enforcing the order of the National Labor Relations Board, which order required the reinstatement of Intervenor Walter Slaughter by Petitioner Du Pont. NLRB v. Du Pont de Nemours & Co., 724 F.2d 1061 (3d Cir.1983). The NLRB had found that Du Pont committed an unfair labor practice when it discharged Slaughter, a non-union employee, for insisting that a coworker witness accompany him to any interview with management which might lead to disciplinary action.

Du Pont subsequently filed a motion for panel rehearing and rehearing en bane on February 1, 1984. Before ruling upon those motions, this Court, on February 7, 1984, ordered that an Answer be submitted by the NLRB by February 7, 1984. In particular, the Court asked that the Board address the question of whether Meyers Industries, Inc., 268 N.L.R.B. No. 73, 115 L.R.R.M. 1025 (1984), decided subsequent to this Court’s opinion of December 29, 1983, required any different result.

In lieu of an Answer, the NLRB moved, on February 17, 1984, that the Court’s filed opinion be vacated and the matter remanded to the Board for further consideration. The NLRB stated that it had pending another case presenting similar issues, and that it was giving additional thought to the questions involved. This Court held the Board’s motion to vacate and remand in abeyance, and again ordered an Answer on the petition for rehearing from the NLRB. That Answer was filed on March 19, 1984. Although the NLRB argued in its Answer that Meyers did not affect the analysis of the present case, it renewed its request for a remand for further consideration.

It was at this stage that Slaughter, the discharged employee, sought to intervene and to file an Answer to Du Pont’s petition for rehearing. On March 30, 1984, intervention was granted, and an extension of time to file a response to the rehearing petition was granted. We have now received and considered all responses, including the Answer of Intervenor Slaughter. For the reasons stated below, we grant the NLRB’s motion for remand.

The NLRB does not have the automatic right to withdraw its petition for enforcement at will, and “permission to withdraw must rest in the sound discretion of the court, to be exercised in light of the circumstances of the particular case.” Ford Motor Co. v. NLRB, 305 U.S. 364, 370, 59 S.Ct. 301, 305, 83 L.Ed. 221 (1939). Nor is it the responsibility of the courts of appeals to ensure academic consistency in the Board’s decisions. NLRB v. Deaton, Inc., 502 F.2d 1221, 1228 (5th Cir.1974) (denying motion for remand made by employer). In the present case, however, the Board’s decision resulted in substantial development in the construction of § 7 of the Act. It is in this context that we view the Board’s contention that:

the public interest and the interests of the parties would be better served by its considering ... this case together with the other case posing related questions, to issue decisions comprehensively addressing the questions raised in this area, thereby allowing for more effective judicial review.

Motion of the NLRB, February 16, 1984, at 1-2. Mindful of the deference owed the Board’s special expertise in interpreting the Act,¹ we believe that our discretion is best exercised by postponing further judicial involvement until we have been informed of a comprehensive adjudication by the NLRB.² Thus, we grant panel rehearing: the NLRB’s motion to remand this case is granted. Accordingly, our previous opinion, reported at 724 F.2d 1061, will be vacated.

1 . As we read the dissenting opinion, its conceptual linchpin is the notion that the role of Board expertise ends when judicial review begins. The dissent does not contest that courts must generally defer to the Board’s expert application of the Act to a particular case. Rather, the dissent seems to contend that once a case is brought before the courts for review, deference is no longer owed to any additional insight from the Board. We know of no authority to support this view, nor can we square it with the expansive language used by the Supreme Court to emphasize the broad discretion vested in the Board by the Act. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975) ("The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board”). See also NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667 (1983); NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963).

While we agree that a proper concern for judicial economy demands critical examination of requests for remand when a court of appeals has already decided a case, we nonetheless believe that the Board’s expertise informs its judgment that a case requires reconsideration in much the same fashion as it informs the Board’s prior decision on the merits of that case. Indeed, it would appear that the Supreme Court implicitly recognized the ongoing significance of Board expertise when it remanded Woodcraft Division, Georgia Kraft Co. v. NLRB, 696 F.2d 931 (11th Cir.1983), vacated in part, - U.S. -, 104 S.Ct. 1673, 80 L.Ed.2d 149 (1984), to permit the Board to reconsider the case after the Eleventh Circuit had enforced the Board’s order. Thus we are not persuaded that the deference required of us evaporates entirely after a Board decision is submitted to a court for review.

2 . It is noteworthy that a remand may very well lessen the ultimate expenditure of judicial resources necessary to resolve the § 7 issue in this case. Since our previous opinion enforcing the Board arguably conflicted with the Ninth Circuit’s decision in E.I. Du Pont de Nemours & Co. v. NLRB, 707 F.2d 1076 (9th Cir.1983), the Supreme Court might have been impelled to grant certiorari in order to announce uniform law on the subject. By remanding, we provide the Board an opportunity to articulate an approach that could avoid intercircuit conflict and obviate the need for Supreme Court review.