*1 any prefer- aside recover of the estate” to set behalf to the date years subsequent two ential transfers “within be- having elapsed years two adjudication.” More than and the commencement adjudication tween the date of held below properly the courts instance, in this suit lie. § barred action was under Act created Bankruptcy has the federal Inasmuch as of time for com limitation fixed the liability and has also con occasion to we have no it, enforce mencing actions to applicability concerning arguments the trustee’s sider limitation. of the Illinois statutes and construction McClaine v. Haverhill, 610; Campbell 155 U. S. Cf. v. Ray, 96; U. Rankin, Rawlings v. 154; 197 U. S. Bowles, Co. 144, 155, 156. 321U. S. Davies Warehouse the court below judgment
Affirmed. NATIONAL LABOR KNITWEAR CO. REGAL BOARD. RELATIONS January 29, 1945. 8, 1944. Decided Argued December No. *2 Mr. John P. Chandler for petitioner. submitted Mr. Malcolm with Holliday, P. whom Solicitor Gen- eral Fahy, Mr. Wey- Alvin Rockwell and Misses Ruth J. and Fanny Boyls brief, and the for respondent. M. were on delivered opinion the of the
Mr. Justice Jackson Court.
The National Labor Relations Board, appropriate after proceedings, a issued cease and desist order the petitioner, 560, 49 N. L. R. B. and thereafter obtained from the Circuit Appeals Court of for the Second Circuit an order for its 140 enforcement. F. 2d 746. granted We certiorari, single limited a question to on which there was practice conflict in between different circuits. 323 TJ. S. Board 692. The has followed the formula which orders only particular not respondent, but also “its officers, and to agents, successors cease and The desist. question is whether enforcement will granted without deleting and assigns” “successors enjoined. those Appeals First, Courts Third, Circuit for the Second, Fourth, Eighth Circuits, the Court of Appeals District upheld Columbia have authority include provision.1 Board to such a In some these cases 1 Tanning Co., (C. Labor Board v. Brezner 62, 141 F. 2d 65 C. A. 1st); Mfg. Co., Labor 633, Board v. Blackstone 123 F. 2d (C. 2d); C. Co., 494, A. Labor Board v. Weirton Steel 135 F. 2d 498- 3d); (C. C. A. Tool 152, Board v. Landis 145 F. 2d to be change ownership probable was shown Circuit, The Second proof. cases there was no such other “In allowing refusing delete said: provision, clear, however, make it we wish to these words to stand ‘assign’ will do not hold that a or an that we ‘successor’ after no (even if it should contempt be in of our order re without with the order, participating tice of the but by it) exactly do those any disobedience spondent words, In other we do the order forbids. things which liability which any impose hold that those words Labor Board v. Blackstone without them.” would exist Bethlehem 635; 123 F. 2d see also g. 633, Mf 2d 650-51 (App. 120 F. Steel Co. v. Labor *3 the Seventh C.). Appeals of D. The Circuit Court eliminates the hand, consistently Circuit, on the other assigns order,2 from successors provision as assigns under some cir that successors or recognizes but order, Board’s even without by the are bound cumstances the words.3 out the but provision of appeals one court strikes
When some circumstances have same may says its absence there, appeals ap- if court of it and another were effect says its have no provision presence but proves than if it there more a faint out, effect than were more over rather suggestion that the conflict is semantics than practical realities. over 134 F. Feinberg Mill, v. 2d 620 Hosiery
(C. 3d); A. Board C. Labor Brewing Co., 144 F. 847, 2d (C. 4th); Board v. Gluek 857 A. C. Labor F. 641, v. Labor 120 2d Board, (C. 8th); A. Bethlehem Co. C. Steel C.). (App. 650-51 D. 2 387, 388; F. 2d v. v. 125 Bachelder, Labor Board Labor Board Circuit also refused in 752, The has one F. 757. Sixth Stone, 125 2d Board v. phrase. Labor Iron include the case to Cleveland-Cliffs 295, F. 2d 133 Co., 302. 3 548; 166 S. Lennon, International Brotherhood also In re U. See 329; 326, 123 F. 2d Lines, Keystone Freight Labor Teamsters v. 295, F. 2d 133 302. Co., Iron Board v. Cleveland-Cliffs 12
The that includes assigns, among formula successors and others, probably is one borrowed con jargon veyancing. these used, Doubtless words often are not out appropriateness, of consideration of their but because of familiarity. their of equity Courts sometimes have used formula in their this decrees.4 Before the enactment of the Labor Relations Act the Federal Trade Commission issued containing orders familiar provisions.5 these and Exchange Commission has done the Securities same.6 The Bituminous Coal Division of the Department of the Interior does likewise.7 The National Labor Relations Board has employed formula consistently this 1937,8 since and some state labor have boards followed the example.9 only Not have circuit courts of appeals, except of the Seventh Circuit, generally enforced containing orders this provision, this but Court has several times done so. South port Petroleum Co. v. 100, 106, note 6.10
4
decrees in United
994,
States v. Pullman
See
Civil Action No.
Parking,
1944;
Ltd.,
United States v. Vehicular
D. Pa.
E.
Civil Action
Colors,
Empire Plating Co.,
259,
Aluminum
Inc. v.
1944;
D.
No.
Del.
Towing Co.,
Supp. 687;
United States Great Lakes
E.5
1 Decrees
Judgments
(N. Ohio,
Cases,
1915);
Antitrust
253-54
Federal
D.
Gilpin Corp.
Wilmore,
United
453,
456,
34,
100 Colo.
68 P. 2d
Superior
Mills,
Matter
Woolen
283,
(1924);
F. T.
C.
Matter American
11 F. T.
Matter
(1927);
C.
Snuff
*4
Co.,
Sherwin-Williams
25, 72,
(1943).
36
T.
F.
C.
74
6
Exchange
Blake, Inc.,
Securities cfe
Commission v. Aldrich
1 S. E. C.
19,
Dec.
21.
Jud.
7
Co.,
Matter
Hill
Cove
Coal
7 F. R.
7572, 7574;
Matter Wal
of
of
Sons,
trip
&
7 F. R.
7864.
8
Co.,
Matter Hill Bus
781,
L. B.
N. R.
800.
of
9 Matter
The Great
Atlantic &
Tea
Case No. CU-
of
Pacific
333,
Board;
New York
Labor
Matter
T.W. Grant
State
Relations
of
Pennsylvania
82,
Case No.
Labor Relations Board.
10Citing
Board,
Consolidated Edison Co. Labor
197,
U. S.
enforcing, modified,
Newport
Labor Board v.
71, 108;
as
4 N. L.
B.
R.
Shipbuilding Co.,
News
241, enforcing
308 U. S.
8 N. L. B. 866, 877;
R.
have
The dearth of cases which actual controversies
discriminating
precipitated by
general
been
this more
than
significance
its
both
use of this ritual
indicates
in retrospect.
than
ill
good
greater
anticipation
and
is
agencies
considerable latitude
Administrative
have
statutory
their
scope
their remedies within the
shape
infirmity
of find
authority and,
inadequacy
where the
is
in the
the choice made
ings to show
appropriateness
the case
case, are
entitled to have
particular
ordinarily
Phelps Dodge Corp.
for further
remanded
consideration.
Hill
Holly
Addison
177, 194;
v.
Labor
v.
Products,
courts,
neverthe
607,
322 U. S.
616.
Fruit
injunction
grant
enforcement order or
less, may
an
make
the
who
punishable
persons
broad as to
conduct
so
rights have not been ad
independently and whose
act
Nor
judged according to law. Chase National Bank v.
walk,
436-37;
291 U. S.
Hitchman
& Coke Co.
431,
Coal
Donald,
Mitchell, 245
165 U. S.
229, 234;
U. S.
Scott v.
v.
Staff,
Mfg. Corp.
Alemite
their agents, servants, employees, persons in upon those active concert or participation with them receive per- who actual notice the order by sonal service or otherwise.”11 This is derived from the injunction only common-law that not doctrine a decree parties binds the defendant those with but also identified interest, them in in by “privity” represented with them, them subject or to their In it is that de- control. essence fendants may nullify carrying not by pro- decree out hibited through they acts although aiders and abettors, were original to the proceeding.
The term “successors and
in
enforcement
an
order of
may
enlarge
course
de-
scope beyond
its
by
fined
the Federal Rules of Civil Procedure. Successors
and assigns may, however,
through
be instrumentalities
which defendant
may
seeks
order
to evade an
or
come
within
description
persons
active concert or par-
ticipation
them in
with
injunction.
the violation of an
If they are, by that fact they
brought within scope
are
of contempt proceedings by the rules of civil procedure.
We have indicated that Labor
binding
Board orders are
upon
and assigns
successors
operate
who
dis-
“merely guised continuance of the
employer.” Southport
old
Pe-
troleum
Co. Labor
to In Walling v. Reuter 671, 674. both these of succession, merely cases the reference is not to but to defendant and a relation between the the successor might liability which of itself establish within the terms of Rule 65.
We do not undertake to decide whether or under what assign will be liable any circumstances kind of successor or for a It is true that we violation of Labor Board order. better “Questions said that construction had be have of upon ironed con out before enforcement orders issue than Board, Co. I. Case tempt proceedings.” (J. 332, 341.) U. S. from Rule apparent But it is the narrow views of one circuit court of as to appeals to the effect of the in and of another as words the order words, that whether broad effect of the without the order assign” brings contempt one himself in or as a “successor depends of and behavior and appraisal on an his relations If upon mere construction of terms of the order. de raise upon fendants enter transactions which doubts as applicability injunction, they petition to the or construction granting the court it for a modification City, York Jersey New the order. Cf. New U. S. in the discretion relief would be sound 259. While such to apt think would not withhold court, we courts that left in of a concrete situation light a clarification in to their the dark as parties or “successors are orders issued the court. duty toward Enforcement the entrap not for Act, of the purposes effectuate the desire to less than ment of and courts no parties, deliberate punish well as to unwitting contempts as avoid ones. here We have an us. is before
No concrete case words, and it of these the use controversy over abstract are. The usually controversies as abstract is as sterile merely as order of the the words objects to employer if They do not words. obligation, enlarge its own O* H-i obligation order, by way with the little complies
it assign by or the order that passed could be to- successor any by The Board imposed event statute. is not anyone contempt to reach or to hold attempting here by assign appears of such orders. No successor or virtue him in jeop- that these words complaining put before us contempt can be because of ardy. punished No one judicial hearing, which their these words until after could be determined on a concrete set facts. operation *7 question All that is us is the whether we will hold before illegal is an one to include abstractly provision that this Board or an in desist order of the Labor a cease and order of the Court. enforcement it is wise that an order to define attempt Whether its than to the action when own effect on others say. done so is not for us to cannot already law has We assigns” that and as well “officers and say “successors as may agents” among not under some circumstances be the order within the 65 and by scope those reached of Rule it is say permissible provision. hence cannot that not a
Affirmed. Stone, dissenting, with whom Mr. Mr. Chief Justice Justice, Reed concur. and Mr. Justice Roberts injunction continuing An a threat to those named as is they if subject it, contempt proceedings to of the pains disobey opinion recog- its The of the Court provisions. present injunction running that the the em- nizes ployer’s purports “successors and to include subject within its who to its sweep some are com- mand is and thus a threat to those over whom the Court that the authority. opinion per- has no also admits sons who are by bound decree would be as present to omit the words effectively if were bound the decree assigns.” Walling See v. Reuter “successors 671, 674-675, U. and cases cited. S. long
It for power has been deemed to be an abuse of a enjoin federal court to in which a defendant practices not engaged has and which are unrelated to those which enjoined. Express Labor Board See properly Publishing cited. To me it and cases for authority seems no less misuse of as well as court, itself, for Labor Board threaten to those who are not subject to its command. is This the more so where tendency of the threat inflict penalty is to an unauthorized on the employer by deterring persons dealing third with him acquire property to his in business, circum stances which may lawfully be done.
That have been numerous there cases before this Court where the Board’s order has not challenged been this respect, significant only is showing how extensive the abuse ready employers has become how and the lower courts have been acquiesce threatened wrong, when the injury seemed not to be immediate. But these are reasons our acquiescence, question when the *8 brought to us for decision for the first time. It part is no of the function of the Board or of courts to make unwar ranted threats suitors or innocent third persons. misleading Such and unwarranted use of the phrase should avoided, either it by striking from the decree or so qualifying it as designate the class of “successors and assigns” to whom may it be lawfully applied. Cf. South port Co. v. Labor 315 U. S.