(dissenting in part).
I think the master’s report should be accepted in its entirety, and that no equities have been shown justifying remand- to the Board for further delay in these already overlong proceedings. This is a labor dispute which came to a head in the spring and summer of 1937. The Board’s decision was two years later. Our own enforcement decision was nearly two years after that (April 4, 1941). Though our order was entered April 29, 1941, petitioner has been dilatory in complying with it; even the required notices were not posted until November 29, 1941, after contempt proceedings were instituted. Petitioner today still owes its discharged employees a large sum for back pay — about $27,000, as the master found. Of this, the amount now ordered held back is only a small part, and is obviously but a fraction of petitioner’s expenses in carrying on this long and fruitless litigation. Its petition for review really sought a relitigation of issues of *974fact, as our decision in 118 F.2d 625 demonstrates, and thus was foredoomed to failure from the beginning.1 So also, I think it clear, is its present attempt to prolong the dispute. Surely at some time there should come an end to the possibilities for futile attack on labor orders. Judicial decrees, delayed for five years or more, cannot allay labor unrest; they may, indeed, increase it.
The limitations of the remand and the burden which the petitioner will have in meeting its terms demonstrate, I believe, that this decision is basically an attempt to be overscrupulous, to lean over backwards, in granting official review of even what has been only most barely claimed. The attack on the administrative agencies, which has now shifted from the legislative policy itself to the more successful front of extensive judicial review, has tended to paralyze both agencies and courts and to stop them from taking forthright and prompt steps to enforce the laws committed to their keeping. Unfortunately, no one is at hand to press the public need of speedy enforcement of these laws, if enforcement is to be worthy of the name at all. The loss, and even danger, to the public interest of this course has been brought home to all by the crisis of war, wherein an entirely new administrative setup and a new board have been found necessary in order to achieve peaceful and productive, labor relations with that celerity which was denied the old board.
It is well settled that on contempt proceedings the original order is not subject to attack, Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419; United States ex rel. Emanuel v. Jaeger, 2 Cir., 117 F.2d 483, and cases cited; and - the Supreme Court in Phelps Dodge Corp. v. N. L. R. B., supra, pointed out that any claim of willfully incurred nonemployment should be settled by the Board before contempt proceedings. Hence we must hold that the master acted correctly under the existing orders of our court; the only way we can now proceed to consider this issue is by reopening the original enforcement order. The National Labor Relations Act, which in § 10_(i), 29 U.S.C.A. § 160 (i), directs that petitions under the Act shall be heard “expeditiously” and, if possible, within ten days, provides, in § 10(e), 29 U.S.C.A. § 160(e), that new objections shall be raised before the court only under “extraordinary circumstances.” I think, therefore, that before we reopen the original order at this late date, we should have a strong showing of the equity and justice of the course, together with some indication of petitioner’s probable success in the new proceedings. Neither is shown here. That is why the case is so strikingly different from the situation disclosed in Phelps Dodge Corp. v. N. L. R. B., supra. There the matter came up and was presented in the original hearings of the Board; moreover, there was tangible evidence that the former employees had actually taken other jobs which later they had given up. Here the long delay of petitioner in making anything more than the most perfunctory legal claim on this issue, coupled with a lack of showing of any good basis upon which the Board should modify its order, should require us to refuse the remand. N. L. R. B. v. Baldwin Locomotive Works, 3 Cir., 128 F.2d 39, 50; N. L. R. B. v. Condenser Corp., 3 Cir., 128 F.2d 67, 78; Southport Petroleum Co. v. N. L. R. B., 315 U.S. 100, 62 S.Ct. 452, 86 L.Ed.-.
First, as to delay, it is indisputable that nothing remotely approaching a factual showing of the claimed willfullness was ever offered prior to the master’s hearing in February of this year; also that no explicit request for a remand to the Board— the course so definitely required under the Phelps Dodge decision — was made, as to the matter now in issue, before the limited alternative suggestion to that effect contained in the “Exceptions” to the master’s report, filed June 17, 1942, on the hearing of the pending motion. Moreover, there was not even a suggestion of this issue until petitioner on April 21, 1941, after our enforcement decision, presented a counter-order to that offered by the Board and supported it with a memorandum. Before that time petitioner had stressed only the two issues which, indeed, it has continuous*975ly. stressed ever since, namely, its own offers of re-employment and the actual earnings of the men after discharge. In its memorandum on the counter-order it again emphasized these two points and referred to a considerable amount of factual material upon them, both in the original hearings before the Board' and in later affidavits. Then it made a purely formal claim, giving no factual data at all, but only the bare citation of our Phelps Dodge decision, 2 Cir., 113 F.2d 202, that deductions should be made for willful refusal of other employment; and its draft of an order contained a formal deduction for sums thus lost. As was customary, no hearing was had on these proposals as to the form of our judgment; but on the day following the announcement of Phelps Dodge Corp. v. N. L. R. B., supra, upsetting our order so far as it provided for such deductions, this court entered the Board’s order and thus rejected petitioner’s counter-order. Obviously, this action was necessary. There had been no showing of a possible ground for the suggested modification. Moreover, as the Supreme Court had just decided, the issue was not for us anyway. Of course, we knew of that decision ; it was widely publicized; and such decisions are available to us in full by at least the next day after they are rendered. Thereupon there followed one of the most revealing actions by petitioner which had occurred in the entire proceedings, namely, the filing of a motion for a resettlement of the order on other grounds than that here under discussion.
Had petitioner seriously contemplated pressing the issue of willfullness, its indicated course was naturally to move for a hearing before the Board, on the basis of the Phelps Dodge decision, and with a showing by affidavits, or otherwise, of some facts indicating a reasonable basis for the claim. True, petitioner did now ask for a Board hearing, but only upon the same two issues — its own offers of re-employment and actual earnings- — -which it has always stressed with extensive supporting data. Gone was any citation to the Phelps Dodge case either in our court or in the Supreme Court. Gone also was any reference of any kind to the willfullness issue. In fact the new proposed counter-order itself contained the Board’s provision for making whole the employee by payment of the amounts he would normally have earned, “less his net earnings during said period,” and left to the Board merely the finding of the amount thus due. Naturally, the Board was correct in saying that these issues, under our precedents, were to be settled in contempt proceedings. Natural ly, too, we rejected the counter-order (May 16, 1941). We could have done nothing else without repudiating our well-settled decisions which, so far as we know, are in accord with the Supreme Court’s views. See N. L. R. B. v. Acme Air Appliance Co., 2 Cir., 117 F.2d 417, 421 (dealing entirely with offers of re-employment and actual earnings).
The only other reference to the matter, prior to the master’s hearing in February, 1942, was in petitioner’s long answer of November 14, 1941, to the petition to adjudge it in contempt of this court. In twenty-six typewritten pages, with eight pages of exhibits, it again set forth extensive details bearing on its two main claims. The'sole reference to the present matter was at the end where prayer was made that the case be referred to a special master, to determine six questions of fact, of which the fourth was “To what extent have the fourteen men, or any of them, willfully failed or neglected to accept reasonably available employment since August 20, 1937?” I think the afterthought and makeweight character of this claim is clearly manifest.
There seems to be some thought that these statements of petitioner should be viewed somewhat as generalized pleading claims, as, say, general allegations of negligence, and that our court has in some fashion misled petitioner in not picking them up and taking action upon them as a trial court might under the suggested circumstances. This is an unreal analogy. Here we have a proceeding in an appellate court for the reopening of a final judgment and for a remand for further trial to a tribunal which has long since finished its task of adjudication. And going beyond all merely procedural analogies, the vital questions are, first, What did petitioner really hope to prove and feel justified in actually fighting for, and, second, What did the Board and the discharged employees and this court have reason to think petitioner was really striving for, and what actions should we properly have taken in the light of our belief? Actually we did take the only correct course on the basis of what petitioner had then shown us, and I confess, therefore, to not a little surprise and regret at the implication of some sort *976of estoppel against this court, which must now affect its decision on the proper policies to be here followed to effectuate the purposes of the Labor Act. ■
But, if we overlook all this, does petitioner, even now, make a showing of deductions which ought fairly to be made by the Board, not in the adjudication of private rights, but in its public capacity of giving effect to the objectives of the Act, for “not so much the minimization of damages as the healthy policy of promoting production and employment” ? Phelps Dodge Corp. v. N. L. R. B., supra [313 U.S. 177, 61 S.Ct. 855, 85 L.Ed. 1271, 133 A.L.R. 1217]. Petitioner does not offer to prove a real equivalence between the former positions of these glass workers, with their important rights of seniority, and the new jobs available in the steel mills or on relief. (Indeed, it attempted also to show that the men had refused to go on relief.) It offers only to show from employment agencies that steel jobs were available and that these men did not seek the help of these agencies, or themselves try, to get these jobs. The majority opinion demonstrates that these cannot be considered fair equivalents; it is hardly conceivable that the Board will so hold. Moreover, the men are said to have relied on the advice of the Board as to their rights; and, as has been indicated, the Board was quite justified in such advice from the course this case had taken, if not from the general situation itself. It will hardly promote production and employment if they are to be let down now at this late date. The Board has already indicated its view of this claim from the detailed reply under oath— made by the Board itself, not by its counsel —to petitioner’s answer to the petition for contempt. We cannot claim ignorance of what the Board has already shown it thinks is correct policy under the circumstances. Unless petitioner’s able and persistent attorneys can produce something quite new, the entire futility of this new reference is clear. I might add that even without the peculiar facts of this case this result is likely to follow in most similar cases or else the back-pay order — practically the only real deterrent to prevent an employer from committing an unfair labor practice, 50 Yale L. J. 507, 509 — must fall into disuse in boom war times.
It is said that this case should not be taken as a precedent with respect to future delayed claims for remand to the Board. I fervently hope this is so, for I do not believe we are doing our own duty in effectuating the policies of the Labor Act by putting a premium on such dilatory proceedings as we have before us here. But I fear that we cannot ourselves limit the effect of what we do, and that others will cite us as holding that the most formal and indirect of legal claims is enough, without actual factual support, and whenever or however made, to take a case back to the Board, years after the event, for a trial of the Phelps Dodge issue. • I wonder if the Supreme Court majority really wanted that.
The master here acted promptly and efficiently. That, even so, we find his hearings insufficient and at this late date return the matter to the Board seems to me to add all the more force to the arguments I have previously advanced, N. L. R. B. v. Giannasca, 2 Cir., 119 F.2d 756, 759, 135 A.L.R. 560, that contempt hearings, like other labor hearings, should be initially by the Board, not by some newly constituted and ad hoc court
True, the court, following its lengthy discussion of the factual issues, did summarily direct modification of the Board’s order with respect to reimbursement of union dues deducted from employees’ wages and of Public Relief Agencies for wages paid, as well as with respect to the form of notices to be posted, page 630 of 118 F.2d; but these modifications were all required by well-settled precedents in this circuit and obviously could have been secured without the appeal on the facts.