This case involves a petition by the National Labor Relations Board ("NLRB") for summary entry of judgment to enforce the Board's decision ordering the respondent Evans Plumbing Company ("Evans") to reinstate with back pay two employees whom it discriminatorily discharged. Evans, who filed a voluntary petition in bankruptcy, opposes entry of judgment on the ground that the proceedings before the NLRB should have been stayed by the automatic stay provision of the Bankruptcy Act of 1978, 11 U.S.C.A. § 362(a)(1) (1979). We hold that this NLRB proceeding falls within a statutory exemption to the automatic stay provision and grant the Board's petition for summary entry of judgment.
On or about February 15, 1980, Evans discharged Jack T. Lee and F. J. Meeks for complaining to their union about alleged mismanagement of their vacation funds by Evans. A charge of unfair labor practices was filed and the matter set down for a hearing. On August 8, 1980, the day before the commencement of the hearing, Evans filed a voluntary petition in bankruptcy in the Northern District of Alabama. On the day of the hearing, Evans' counsel appeared and moved to continue the Board proceedings in order that the bankruptcy court might determine whether the proceeding fell within the automatic stay provision of the Bankruptcy Act. Evans' motion was apparently overruled and the hearing was held. On September 30, 1980, the administrative law judge ("ALJ") found that Evans had committed an unfair labor practice by discharging Lee and Meeks and ordered them reinstated with back pay. The order was promptly transmitted to the Board to await the filing of exception by Evans. Evans failed to file any exception within the time provided by the Board's rules and regulations and the Board adopted the ALJ's decision. This petition followed.
We are faced with a threshold question of first impression under the new Bankruptcy Act: whether the automatic stay provision applies to an enforcement proceeding by the NLRB. We conclude that this action falls within an exception to the automatic stay provision.
The automatic stay provision, 11 U.S.C.A. § 362 (1979), provides in part:
As explained in the legislative history of the Bankruptcy Act of 1978:
House Report No. 95-595, 95th Cong., 2d Sess. at 343, reprinted in 1978 U.S.Code Cong. and Adm.News, 5787, 6299. See also Senate Report No. 95-989, 95th Cong., 2d Sess. p. 52, reprinted in 1978 U.S.Code Cong. and Adm.News, 5787, 5838. The crucial issue is whether the NLRB is a governmental unit and whether this action is one to enforce police or regulatory powers. It is clear that the NLRB is a governmental unit. This action was undertaken to enforce the federal law regulating the relationship between employer and employee. We can safely conclude therefore that this is an exercise of police or regulatory powers which places it within the § 362(b)(4) exemption to the automatic stay.
We note that our decision today would permit the entry of judgment for injunctive relief and for back pay; however, should it be necessary to enforce the judgment for back pay, a different question would be presented. We express no opinion as to whether an action to execute or enforce a money judgment would be exempt from the automatic stay.
The Board's petition for summary entry of judgment is hereby
611 F.2d at 1251.