# Petition — Decaturville Sportswear Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1221%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 836 ## Text t, US “FIL ED JUN 27 1978 MICHAEL RODAK, JR., CLERK | IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 “977-1839 DECATURVILLE SPORTSWEAR CO., INC., et al., Petitioners, V. NATIONAL LABOR RELATIONS BOARD. Respondent. PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Sixth Circuit W. OVID COLLINS, JR. CHARLES HAMPTON WHITE Eighteenth Floor Third National Bank Building Nashville, Tennessee 37219 Attorneys for the Petitioners St Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477 INDEX Page Ce ee ceves he cb ehbuseeresens 2 A Ee ee ee ee 2 i a ces wees eee bbls tunwseb ees 2 EN A to a ee thee baa on owe ee 3 EN la oe ee eed ha sae ea ee eee 4 A. The Prior Contempt Proceeding .............. 4 B. The Subsequent Unfair Labor Practice Proceeding 8 C. Action of the Court of Appeals .............. 10 ee 12 A. The Court of Appeals erred in concluding that the September 16, 1977, order of the Board was not a “final order” within the meaning of Section 10(f) SE SE Nace keane chased eh de ewae eee - 12 B. The Court of Appeals erred in concluding that the doctrines of res judicata and collateral estoppel do not preclude subsequent relitigation of events as di- rected by the Board’s order of September 16, 1977 15 ches sets h 4a GaN oe tkbeiescesaeueci es 22 CO er rr re ee eer ee ee A-1 EE coun des ee bee upehed eke keth Keucunens A-3 EE UE 6. n a 0d bop aoe a bh 6E SC eOs ARC ROR OES A-4 gadis cus dunpundansumess ay A-14 ul CS eee A-18 Ce ee A-30 Appendix G ........ cece eee eee e renee eeteeees A-94 Appendix H .........--- cece eer eee teense A-106 Ce en A-112 Appendix J... 1... cece eter e tener enees A-120 Appendix K ..........: cece eect eer tee e tence A-128 CITATIONS Cases: Commissioner v. Sunnen, 333 U.S. 593 (1948) ......-. 17 Cromwell v. Sac County, 94 U.S. 351 (1877) .......... 17 Eazor Express, Inc. v. General Teamsters Local 326, 388 F.Supp. 1264 (D. Del. 1975) ..... 0.0.6 eee ee eee 21 ILGWU Local 415-475 v. NLRB, 501 F.2d 823 (DC i re Se ree ree re 13, 14 International Union v. Eagle-Picher Mining and Smelting Co., 325 U.S. 335 (1945) ... cece eee ceees 13-14, 22 Leeds & Northrop Co. v. NLRB, 357 F.2d 527 (3rd Cir. ES Se saat Sere NE pak RROD Kd Meee Cae eR 84 14 Myers v. Bethlehem Ship Building Corp., 303 U.S. 41, I ota cue Fun SAS 60d Kone ena webhneneans 12 NLRB v. Brown & Root, 203 F.2d 239 (8th Cir. 1953) .. 21 NLRB v. Decaturville Sportswear Co., Inc., 406 F.2d 886 Ss 65h 6620 OSCR STEERER HEPES OOO WO 6 NLRB v. Decaturville Sportswear Co., Inc.. 518 F.2d 788. cert. denied, 423 U.S. 913 (1975) ........ 2, 3, 9, 12, 19 NLRB v. Walter E. Heyman, 541 F.2d 796 (9th Cir. 1976) This ahs hd ak de & 6 AC DEKE ole ie bk oes 21 Sears, Roebuck & Co. v. National Labor Relations Board. 433 F.2d 210, 211 (6th Cir. 1970) ................ 12 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 387 ER As Gee St arent G ia SUR sol SR ee 19 Thompson Products v. NLRB, 133 F.2d 637, 640 (6th EES tie aggre tn i ea EO ee i 12 Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th at thie a RPE alae ine we 13,14 Zdanok v. Glidden Company, 327 F.2d 944 (2d Cir. 1964) 21 Statute: National Labor Relations Act. as amended (61 Stat. 136. 73 Stat. 519, 29 U.S.C. Sec. 151. et seq.) .......... 3 aw ouk etek bbe Gk ikods 06g Rekae uses 3 Cl Eee ET odes ceuieus oS vehioes csv lauk seo Caneel 13 Eg is 13 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 No. DECATURVILLE SPORTSWEAR CO.. INC.. et al.. Petitioners, v NATIONAL LABOR RELATIONS BOARD, Respondent. PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Sixth Circuit Decaturville Sportswear Co., Inc., Marlene Industries Corpora- tion, Trousdale Manufacturing Co., Inc., Westmoreland Manu- facturing Corp.. Aynor Manufacturing Co.. Inc., and Loris Manufacturing Company, petition for a writ of certiorari to re- view the judgment of the United States Court of Appeals for the Sixth Circuit dismissing their petition to review the decision and order of the National Labor Relations Board directing that a hearing be conducted before an Administrative Law Judge on facts, issues, and events which had already been finally concluded in a contempt proceeding instituted by the National Labor Rela- = tions Board in the United States Court of Appeals culminating in the decision in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788, cert. denied, 423 U.S. 913 (1975). OPINIONS BELOW | The opinion of the Court of Appeals in the instant proceeding is not yet officially reported (Pet. App. A, pp. A-1-A-2). The order of the National Labor Relations Board, entered September 16, 1977, reversing its Administrative Law Judge who recom- mended a dismissal of an unfair labor practice complaint on the grounds of res judicata and collateral estoppel, is set forth and reproduced, infra (Pet. App. D, pp. A-14-A-17). The decision of the Administrative Law Judge, entered April 7, 1977, sus- taining the defenses of res judicata and collateral estoppel premised on the prior contempt action in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788, cert. denied. 423 U.S. 913 (1975), is reproduced, infra (Pet. App. E, pp. A-18-A-29) The findings and conclusions of the Special Master appointed by the Court of Appeals to hear the evidence against the peti- tioners in the petition for contempt filed by the National Labor Relations Board, which was adopted by the Court of Appeals are set out in two memoranda and are reproduced, inf , Infra (Pet. App. F. pp. A-30-A-93). JURISDICTION The order of the Court of Appeals was entered March 30, he if ha jurisdiction of th is invoked under 28 USC § 1254(1). is Court QUESTIONS PRESENTED 1. Whether the order of the National Labor Relations Board re September 16, 1977. reopening the record and directing a further hearing on the same identical facts which had been fully and finally litigated in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788, cert. denied, 423 US. 913 (1975), is a final order of the National Labor Relations Board reviewable by a Court of Appeals pursuant to Section 10(f) of the National Labor Relations Act, as amended, 29 USC § 160(f). 2. Whether the doctrines of res judicata and collateral estop- pel preven’ the National Labor Relations Board from conduct- ing a subsequent unfair labor practice proceeding before an Ad- ministrative Law Judge on complaints alleging facts, episodes, and events fully and completely litigated and finally determined adversely to the Board in a contempt action instituted by the Board in a Court of Appeals. STATUTES INVOLVED The relevant provisions of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 USC § 151, et seq.), are as follows: “Sec, 10(b). Whenever it is charged that any person has engaged in or is engaging in any such unfair labor prac- tice, the Board, or any agent or agency designated by the Board for such purposes, shall have the power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a no- tice of hearing before the Board or a member thereof, or before a designated agent or agency at a™place therein stated, not less than five days after the serving of said complaint; provided that no complaint shall issue based on any unfair labor practice occurring more than Six months prior to the filing of a charge with the Board and the service of a copy thereof upon the person against whom such charge is made. * > s > > > > “Sec. 10(f). Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief ie, sought may obtain a review of such order in any Circuit Court of Appeals in the United States in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or trans- acts business, or in the United States Court of Appeals for the District of Columbia, by filing in such court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Board, and thereupon the aggrieved party shall file in the court the record in the proceeding, certified by the Board, as provided in Section 2112 of Title 28, United States Code. ° * STATEMENT A. The Prior Contempt Proceeding. On June 23, 1970, Nelson Rushing, a presser at the plant of Decaturville Sportswear Co., Inc., Decaturville, Tennessee. was discharged for insubordination. The same day, approxi- mately 54 other pressers, in protest of Rushing’s discharge. refused to return to work and were in turn themselves dis- charged. The discharged pressers and other employees acting in sympathy with them began picketing the plant as Decatur- ville. About July 15, 1970, the International Ladies’ Garment Workers’ Union [subsequently called “the Union”) began pick- eting plants of Trousdale Manufacturing Co., Inc., Hartsville. Tennessee; Westmoreland Manufacturing Corporation, West- moreland, Tennessee: Aynor Manufacturing Company, Inc.. Aynor, South Carolina; Loris Manufacturing Company, Inc., Loris, South Carolina; and Frisco Sportswear Co., Inc., Frisco City, Alabama. After the commencement of the picketing, the petitioners forwarded letters to the striking employees, direct- ing them to return to work or risk replacement by permanent es ae replacements. Peggy Cagle and Judy Scott Maness received such letters from Decaturville Sportswear Co., Inc. Neither had advised the company of their reasons for joining the strike. When they came back, they were denied reinstatement because of their job having.been filled by replacements (Pet. App. F. pp. A-62-A-64). At Loris Manufacturing Co., Inc., three employees, Bryce Todd, Robert Stephens, and Robert Richardson, left the plant and joined the pickets after the strike began July 16, 1970. The plant manager wrote each a letter directing him to return to work by a specified time or be replaced. None of the three employees returned by the deadline. In October, 1970, all three employees quit the strike and submitted an uncondi- tional offer to return to work. They were advised by the plant manager that since they had not returned within the time specified, replacements had been hired and the three would be returned to work as soon as a job became available (Pet. App. F, pp. A-82-A-83). Randy Montgomery walked out of the Frisco Sportswear Co.. Inc., plant “because a plant guard would not grant per- mission to Montgomery to cross the picket line to ask his sister for keys for a car” after the picketing began. On Au- gust 7, 1970, Sandra Matchett, another Frisco employee, joined the strike. Like Montgomery, she received a ietter from the plant manager directing her to return to work by a speci- fied date or be replaced. She did not return by the appointed date. On November 28, 1970, Matchett unconditionally of- fered to return to work. The plant manager advised her that he had no openings and, relying upon the letter which he had sent her, stated that she had been given a chance to return and she had refused. She was accordingly denied reinstatement (Pet. App. F, pp. A-87-A-90). All of these events are fully described in the “memoranda of the Hon. Harry W. Wellford, United States District Judge a ne for the Western District of Tennessee, appointed by the Unitea States Court of Appeals for the Sixth Circuit as Special Master to hear the evidence on the allegations set forth in the petition for contempt filed against the petitioners in the United States Court of Appeals for the Sixth Circuit by the National Labor Relations Board on September 21, 1971, seeking an adjudication of contempt against the petitioners for alleged violations of the previous decree of the Court of Appeals, NLRB v. Decaturville Sportswear Co., Inc., 406 F.2d 886 (6th Cir. 1969). On October S. 1973, Judge Wellford issued his first memo- randum as Special Master. On June 12, 1974, the Special Mas- ter filed his second memorandum ( Pet. App. F, pp. A-30-A-93), ? The Special Master concluded that Nelson Rushing had been discharged “for his concerted activity with others in the pressing department, which activity he initiated, but also for his public and adamant refusal to meet with the company plant manager to discuss the problem and complaint. Thus, Rushing was insubor- dinate and, accordingly, was discharged for just cause, even though Rushing was protesting what he believed was entale ss The discharge of Nelson Rushing, therefore, constituted neither an unfair labor practice nor a violation of the decree of this Court.” (Pet. App. F. pp. A-53. A-62-A-63) Regarding the pressers who walked out in sympathy with Rushing, the Special Master observed: “The remaining pressers were not justified in their demand that Rushing be reinstated or rehired by plant manager Anderson on June 23. 1970 before they would return to work. These pressers were not pura ed by the company unreasonably under the circumstances, ph anti-union sentiment on the part ‘ = F, A-63). € part of the company.” (Pet. App. ; a the right to reinstatement of the other employees rs wunadtages and elsewhere, who walked out in sympathy with € pressers at Decaturville. the Special Master concluded that — “there is insufficient clear and convincing proof establishing that picketing at the Loris plant was solely to protest an unfair labor practice . . . All ‘concerted activity’ is not protected by Section 7 of the National Labor Relations Act . . . Todd and Stephens joined the pickets in front of the company’s plant in Loris in an effort to get a union into the plant, as well as to protest what they considered an unfair or unjust practice. They assumed a status of economic strikers who might be subject to permanent replace- ment under certain conditions.” (Pet App. F, p. A-82). Regard- ing Randy Montgomery and Sandra Matchett at Frisco City, the Special Master concluded “Montgomery and Sandra Ann Matchett walked out without making any effort to advise man- agement of the nature of their grievance concerning any alleged unfair labor practice. Since all ‘concerted activity’ is not pro- tected by Section 7 of the National Labor Relations Act, the picketing activities of the Frisco employees were not so protected in this instance. Thus, when Montgomery and Matchett joined the pickets in front of the company’s plant in Frisco City in July and August, 1970, they assumed a status of economic strikers who are subject to replacement . . . They were directed to return to work within a reasonable time and did not, so they thereby rendered themselves subject to replacement. Upon their later reapplication, Frisco did not violate either the National Labor Relations Board or the Court’s decree when they were not immmediately reinstated when they applied for work.” (Pet. App. F. pp. A-89-A-90). These findings, conclusions, and recommendations of the Spe- cial Master were assailed by the National Labor Relations Board before the Sixth Circuit. Yet, those findings, conclusions, and recommendations were adopted by the Court of Appeals, with- out modification, because “A review of the record of this case, including the excep- tions to the Special Master's report, and the briefs filed in support of those exceptions fails to convince this Court po Ye that the Special Master's findings, which were based on two years of fact finding were clearly erroneous * * *” 518 F.2d at 790. On October 20, 1975, this Court denied the Board’s petition for certiorari to review this decision of the Court of Appeals, 423 U.S. 913 (1975). B. The Subsequent Unfair Labor Practice Proceeding. On June 29, 1976, the Regional Director for Region 26 of the Board at Memphis issued a complaint in Cases Nos. 26- CA-3642, et al. (Pet. App. G, pp. A-94-A-105). On July 13, 1977, John S. Irving, General Counsel of the National Labor Relations Board, consolidated for trial the complaints issued by the Regional Directors for the 9th, 15, and 26th Regions. On August 17, 1976, the Regional Director for Region 11 issued a complaint in Cases Nos. 11-CA-5748 and 5749 (Pet. App. I, pp. A-112-A-119). On September 8, 1976, the Regional Di- rector for Region 9 issued a complaint in Case No. 9-CA-8610 and 8888 (Pet. App. J, pp. A-120-A-127). A cursory examination of these complaints will clearly indi- cate that the events which the National Labor Relations Board again seeks to litigate are identical in character to those which were decided in the contempt proceeding. Specifically, in para- graph 7 of the complaint issued in Case No. 26-CA-3642 ap- pear the names of the 54 pressers who were involved in the contempt proceeding at Decaturville. Paragraphs 8 and 9 al- lege the reasons for the discharges of those pressers, which, as we have seen, have already been fully covered by Judge Well- ford and the Court of Appeals (Pet. App. F, pp. A-54-58, 63) In paragraphs 10, 13, 14, and 15 are allegations concerning the commencement of the strike on July 23, 1970, at Decaturville and July 16, 1970, at Westmoreland Manufacturing Corporation and Trousdale Manufacturing Co., Inc., in Tennessee, and in = paragraphs, 13, 14, and 15 are listed the names of individuals who allegedly applied for reinstatement in 1974 on the same terms as did Peggy Cagle and Judy Scott Maness at Decatur- ville, Bryce Todd, Robert Stephens, and Robert Richardson at Loris; and Randy Montgomery and Sandra Matchett at Frisco City. The only difference in the allegations in the contempt petition and those set forth in Case No. 26-CA-3642, et al., is the interval between the date of the individuals’ applications for reinstatement, The same strike is alleged to have occurred in both proceedings. The petitioners answered the complaint and raised the de- fenses of res judicata and collateral estoppel, relying upon the decree of the Court of Appeals for the Sixth Circuit in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir. 1975). cert. denied, 423 U.S. 913 (1975). The matters alleged in the subsequent complaints involve the identical issues, facts, or events as had been resolved by the Special Master and the Court of Appeals in the contempt action. Nevertiteless, a hearing was held at Decaturville, Tennessee, on September 28, 1976, before Administrative Law Judge Irvin H. Socoloff. Judge Socoloff directed the parties to file statements respecting the validity of the affirmative defenses of res judicata and collateral estoppel raised by the petitioners’ answers which relied upon the decree of the Court of Appeals. On April 7, 1977, Judge Socoloff issued his decision and concluded: “The allegations of the complaint herein charging violations by respondents of Section 8(a)(3) and (1), are barred by the applicable res judicata and collateral estoppel principles.” (Pet. App. E, p. A-28). The full text of Judge Socoloff’s decision is reproduced, infra (Pet. App. E, pp. A-18- A-29). On September 16, 1977, the National Labor Relations Board issued its order, construing the decision of the Court of Appeals in NLRB v. Decaturville Sportswear Co., Inc., 518 F. 2d 788 (6th Cir. 1975), cert. denied, 423 U.S. 913 (1975), ie, ee vt — ver and stated: “Under relevant principles of law as enunciated in numerous decisions the doctrines of res judicata and collateral estoppel are not applicable where the standard of proof has been higher in the first action than in the second.” Accordingly, the Board overruled the petitioners’ defenses of res judicata and collateral estoppel; ordered the record reopened; and directed that a further hearing be held before Administrative Law Judge Socoloff for the purpose of taking evidence with respect to the allegations of the consolidated complaints (Pet. App. D, pp. A- 14-A-17). Believing that the September 16, 1977, order of the Board, . directing a relitigation of events finally and completely liti- gated, was and is a final order within the meaning of Section 10(f) of the National Labor Relations Act, as amended, 29 USC § 160(f), and that the decision of the Court of Appeals in the contempt proceedings foreclosed further litigation of the matters alleged in the complaints, the company petitioned the Court of Appeals to review the Board's order of September 16, 1977, and to stay further litigation of these matters before the National Labor Relations Board (Pet. App. C, pp. A-4-A-13). C. Action of the Court of Appeals. In the Court of Appeals, the National Labor Relations Board moved to dismiss the petitioners’ petition for review, and to deny the stay requested by the petitioners of the unfair labor practice proceeding, but requested the Court to issue an order clarifying its decision in the contempt action. The International Ladies’ Garment Workers’ Union was permitted by the Court of Appeals to intervene. After having considered the briefs sub- mitted by the petitioners and the Board, the Court of Appeals denied all requested relief because: “Upon consideration of the motions and supporting mem- orange of the parties, it is the conclusion of the Court that the September 16, 1977. order of the Board is not a final order within the meaning of Section 10(f) of the National Labor Relations Act, 29 USC § 160 (f). The Court further finds that upon the conclusion of the administrative hearing and the issuance of the proper order by the Board, the pe- titioners, if still aggrieved, will be able to seek review in this Court. “IT IS THEREFORE ORDERED that the petition for re- view be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the motion for a stay be, and it hereby is, denied and IT IS HEREBY ORDERED that the motion for an order of clarification be, and it hereby is, denied.” (Pet. App. A, pp. A-i-A-2). a ——————————eEEEEeEeEeEeEeEeEeEeEeeEeEeEeEEEEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeeEeEE—EeEee — — REASONS FOR GRANTING THE WRIT The decision of the Court of Appeals below not only con- flicts with the decisions of other Courts of Appeal on the char- acter of the September 16, 1977, order of the Board as not being a “final order”, within the meaning of Section 10(f) of the National Labor Relations Act, as amended, 29 USC § 160(f). If left standing, the decision of the Court of Appeals also effectively subverts the doctrines of res judicata and collateral estoppel applied to Labor Board proceedings as enunciated by this Court. Thus, the Court of Appeals has approved an order of the National Labor Relations Board which forces the petitioners to relitigate, at considerable expense in both time, effort, and money, events which have been fully and completely litigated to finality, as we will point out. A. The Court of Appeals Erred in Concluding That the September 16, 1977, Order of the Board Was Not a “Final Order” Within the Meaning of Section 10(f) of the Act. | As we have seen, the Board by its September 16, 1977, order directed that the company relitigate matters fully and finally determined by the Court of Appeals in its May 23, 1975, order entered in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788, cert. denied, 423 US. 913 (1975). The Court of Appeals had previously observed that “the appropriate method of review of the Board's orders in connection with the case pending before it is Dy petition to review filed in the United States Court of Ap- peals.” Sears, Roebuck & Co. v. National Labor Relations Board, 433 F.2d 210, 211 (6th Cir. 1970). This is exactly the procedure taken by the petitioners here. Unlike Myers v. Bethlehem Ship Building Corp., 303 U.S. 41, 48 (1938), or Thompson Products v. NLRB, 133 F. 2d 637, 640 (6th Cir. 1943), the posture of the instant litigation is completely dif- ferent from the “mere issuance of a complaint and giving notice of a hearing thereon”. Here. the very facts on which the Board seeks to conduct a subsequent hearing have been fully and com- pletely litigated by the Board in the Court of Appeals, both before the Special Master and before the Court itself. Had the Board adopted the recommended order of its Administrative Law Judge and dismissed the complaint in its entirety, that de- cision would clearly have been reviewable by the union in the Court of Appeals or in this Court by certiorari. /nternational Union v. Eagle-Picher Mining and Smelting Co., 325 U.S. 335 (1945). The September 16, 1977, order of the Board directing a hearing on matters fully, completely, and finally litigated before the Court of Appeals certainly is a “final ordei” so far as the petitioners are concerned. There is no effective way that the petitioners can escape relitigation of the events ordered by the Board in its September 16, 1977, order other than to capitulate. We submit that the Court of Appeals’ characteriza- - tion of the September 16, 1977, order conflicts with decisions of other Courts of Appeals on this question. In Waterway Termi- nals Co. v. NLRB, 467 F.2d 1011 (9th Cir. 1972), the Court of Appeals granted review under Section 10(f) of the Act of a decision and order of the Board quashing a notice of hearing issued at the conclusion of a hearing under Section 10(k) of the Act. Construing Section 10(k) with its corollary, Section 8(b)(4)(B), the Court observed: “To deny review of a refusal to proceed to award under a Section 10(k) proceeding is to nullify the effectiveness of Section 8(b)(4)(B). The only avenue to relief from a dispute under that Section is by way of a Section 10(k) proceeding. An order quashing a notice of hearing under Section 10(k) therefore constitutes a ‘final order’ as to the underlying charge based on Section 8(b) (4)(B).” 467 F.2d at 1016. In like manner, the Court of Appeals for the District of Colum- bia in /LGWU Local 415-475 v. NLRB, 501 F.2d 823 (DC —" = Cir. 1974), reviewed under Section 10(f) of the Act the with- drawal of a complaint as a part of an informal settlement agree- ment by the General Counsel and concluded that such an agree- ment does “constitute a final order of the Board reviewable by this Court under Section 10(f).” 501 F.2d at 826. Similarly, the Court of Appeals for the Third Circuit in Leeds & Northrop Co. v. NLRB, 357 F.2d $27 (3rd Cir. 1966), reviewed, over the objection of the Board, the denial by a Board Regional Director, affirmed by the Board’s General Coun- sel, of the refusal to grant an employer an evidentiary hearing on its objection to an informal settlement agreement with the Regional Director and the union charged with committing an unfair labor practice after the complaint had been withdrawn. Clearly, Waterway Terminals Co., ILGWU Local 415. and Leeds & Northrop Ce., all indicate that the September 16, 1977, order of the National Labor Relations Board was a “final order” within the meaning of Section 10(f) of the Act. By denying review of the September 16, 1977, order of the Board, the Court of Appeals has nullified the effectiveness of the legal doctrines of res judicata and collateral estoppel, as we shall point out, and has stultified the effect of its own decree entered May 23, 1975, in the contempt action. Thus, the order of March 30. 1978, of the Court of Appeals refusing to review the action of the Board on the ground that it was not a “final order” within the meaning of Section 10(f) of the Act, is erroneous and in conflict with the other decisions of the Courts of Appeals which have decided similar issues. To remove the conflict between the order of the Court of Appeals of March 30, 1978, with the other decisions of Courts of Appeal on the character of orders reviewable under Section 10(f) of the Act, as well as to avoid the injustice to the petitioners of being forced to litigate, at great time, expense, and effort, in a ten-week trial, events fully and finally determined adversely to the Board, the Court should grant the petition. — B. The Court of Appeals Erred in Concluding That the Doctrines of Res Judicata and Collateral Estoppel Do Not Pre- clude Subsequent Relitigation of Events as Directed by the Board’s Order of September 16, 1977. The central question to be determined is whether the employ- ees, whom the Board alleges to be unfair labor practice strik- ers in the complaints issued following this Court's denial of the Board’s petition for certiorari on October 20, 1975, 423 US. 913 (1975), have a right to immediate reinstatement on their unconditional offer to return to work at petitioners’ plants. This question was finally and completely adjudicated in the contempt proceeding and is clearly res judicata as between the parties now. Hence, Administrative Law Judge Socoloff was correct in his determination that the doctrines of res judicata and col- lateral estoppel barred the Board from attempting to relitigate these matters again (Pet. App. E, pp. A-28-A-29). A cursory reading of the complaint issued June 29, 1976 (Pet. App. G, PP. A-94-A-105) will clearly confirm the correctness of the analysis of the Administrative Law Judge and the error of the Board in ordering a further hearing and the Court of Appeals in sanc- tioning it. Paragraph 7 of that Complaint alleges that a number of pressers at Decaturville engaged in a strike. Paragraph 8 of the complaint alleges that on or about June 23, those individuals were discharged. In paragraph 9, the petitioners are accused of having refused reinstatement to these employees because of their having participated in a strike. The same substantive allegations were made in the Board's petition for contempt filed September 21, 1971, in the Court of Appeals for the Sixth Circuit. The Special Master considered all of these allegations and concluded: “12. The remaining pressers were not justified in their de- mand that Rushing be reinstated or rehired by plant man- ager Anderson on June 23, 1970, before they would re- turn to work. These pressers were not discharged by the ee es ee 16 —17— tion for contempt dealt with the same question and specified the names of two employees at Decaturville, Judy Scott Maness and Peggy Cagle, three employees at Loris, Bryce Todd, Robert Stephens, and Robert Richardson, and two employees at Frisco City, Randy Montgomery and Sandra Matchett, whom the Board alleged to have abandoned the strike and sought rein- company unreasonably under the circumstances, despite anti-union sentiment on the part of the company. “13. If, however, the company acted improperly, uniaw- fully, or unreasonably in discharging the pressers, other than Nelson Rushing, on June 23, 1970, for engaging in a concerted work stoppage, they should not now in equity be entitled to reinstatement since the company offered to them full reinstatement on June 24, 1970, by letter which most chose to ignore or decline. The offer of the company was a bona fide effort to reinstate. If ac- cepted, the pressers on strike would not have sustained an diminution of seniority, earnings, or any other privileges which they enjoyed prior to their termination.” (Pet. App. F, p. A-6). In the Court of Appeals, these findings and conclusions were adopted, without modification, because: “A review of the record in this case, including the excep- tions to the Special Master's report, and the briefs filed in support of those exceptions fails to convince this Court that the Special Master's findings, which were based on two years of fact finding were clearly erroneous. * * *” 518 F. 2d at 790. This Court declined to review the approval by the Court of Appeals for the Sixth Circuit of the Special Master's findings. 423 U.S. 913 (1975), The corollary question which the complaints issued after the conclusion of the contempt proceeding raise is the right of sympathy strikers at the other plants of the petitioners, in addi- tion to Decaturville, for immediate reinstatement on their un- conditional offer to return to work. Again, this issue has been finally and conclusively determined. The Board's Original peti- statement. Again, this issue was fully litigated and resolved by the Special Master: “7. There is insufficient clear and convincing proof es- tablishing that picketing at the Loris plant was solely ” protest an unfair labor practice. Both Todd and Stephens who joined the picket line admitted they walked out of the plant, without notice to the company, and without yard ing any effort to advise management of the nature of their grievances, if any. All ‘concerted activity is not protected by Section 7 of the National Labor Relations Act (citing cases). Todd and Stephens joined the pickets in front of the company’s plant in Loris in an effort to get a union into the plant, as well as to protest what they considered an unfair or unjust practice. They assumed a status of economic strikers who might be subject to permanent re- placement under certain conditions (citing cases) . . . (Pet. App. F. p. A-82) These two incidents clearly indicate that the issues which the Board seeks to relitigate have been clearly, finally, and conclu- sively adjudicated and are no longer open for further litigation. The Court of Appeals erred in not concluding that the doc- trines of res judicata and collateral estoppel, as enunciated by this Court, preclude the Board from proceeding further on the same issues. In Commissioner v. Sunnen, 333 U.S. 593 ( 1948 ). the Court elaborately set forth the philosophy and provisions of the rule of res judicata as it applied to successive litigation of the same issue. Relying upon the decision of Cromwell v. Sac County, 94 U.S. 351 (1877), the Court said: oe = before an Administrative Law Judge of the Board, is of no consequence. The parties are the same. This Court said in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 387 (1940): “The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considera- tions of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and re- ceived to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose’. Cromwell v. Sac County, 94 U.S. 351 352, 24 L.Ed. 195, 197. The judgment puts an end to the cause of action, which cannot again be brought into litiga- tion between the parties or any ground whatever, absent fraud or some other factor invalidating the judgment.” 333 U.S. at 597. Subsequently, the Court held: “Occasionally courts have used language to the effect that res judicata principles do not apply to administrative pro- ceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate the courts have not hesitated to apply res judicata to enforce repose. United States v. Utah Constructio ini ' n&M 384 U.S. 394, 42] (1966).” ining Co., Tr pr. the doctrines of res judicata and its corollary, col- era estoppel, to the events here, it is clear that the doctrines of res judicata and collateral estoppel, as enunciated b thi Court, bar the subsequent proceeding ordered by the Booed a its September 16, 1977, order. The fact that the first ciation was a contempt action instituted by the Board itself in a Co ; of Appeals and the second is an unfair labor practice ailinn “Where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessary fatal. * * * ‘Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different . . . and parties nominally different may be, in legal effect, the same. A judgment is res judicata in a second action upon the same claim be- tween the same parties or those in privity with them . . . There is privity between officers of the same government so that a judgment in a suit between a party and a repre- sentative of the United States is res judicata in litigation of the same issue between that party and another officer of the government . . . The crucial point is whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final ad- judication of the issue in controversy.” 310 US. at 402, 403. There can be no question but that the Board is again_al-. —— tempting to relitigate the character and nature of the work stop- page at Decaturville in the unfair labor practice proceeding and to seek a contrary finding regarding the rights of picketing em- ployees and sympathy strikers to reinstatement. Before the Court of Appeals in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d 788, cert. denied, 423 U.S. 913 (1975), the Board con- ceded that it accepted the findings of fact of the Special Master. Having made that concession, what remains to litigate? Had the Board prevailed in its contempt action against the petitioners in the Court of Appeals, it is certainly not doubtful that the names of all the people listed in the various complaints involved here (Pet. App. e.g. G. pp. A-94-A-105), would have been pre- sented at some compliance stage of the contempt proceeding ie — as individuals entitled to reinstatement. Yet, having lost on the cardinal issue in the case, the Board now attempts to relitigate the matter on the asserted ground that a different standard of proof would have produced a different result. Having accepted the facts as found by the Special Master, the Board is hardly in a position to complain about the standard of proof imposed. Especially is this true since the Board itself initiated the con- tempt action and thereby chose the initial forum to litigate the issue. The Administrative Law Judge, analyzing the effect of the decision in the contempt action, and comparing it to the allegations of the complaint (Pet. App. G, pp. A-94-A-105, J, pp. A-120-A-127) observed: “The Court's decisions are the law of the case. The Court has determined that: “(1) Rushing was discharged for cause; *( 2) The Decaturville employees who protested the Rush- ing discharge were engaged in unprotected activity, and, thus, were themselves lawfully discharged: “(3) The strikers at others of Respondents’ plants were not engaged in protected activity: “(4) The rights of the sympathy strikers at the Russell plant are dependent upon the protected nature of the strikes at Respondents’ other plants. * 5) The strikes at said other plants were unprotected ac- tivity. “I conclude, for the reasons stated below. that the findings and conclusions of the Court in the Decaturville case must be accorded a res judicata or collateral estoppel effect in this case before the Board, and that the General Counsel may not now relitigate the very issues previously litigated in that case.” (Pet. App. E, pp. A-23-A-24) Since Courts of Appeal have consistently applied the doctrines of res judicata and collateral estoppel where previous Board de- terminations or district court decisions have affected subsequent proceedings before the Board, i.e. NLRB v. Brown & Root, 203 F.2d 239 (8th Cir. 1953); Zdanok v. Glidden Company, 327 F.2d 944 (2d Cir. 1964); NLRB v. Walter E. Heyman, 541 F.2d 796 (9th Cir. 1976); Eazor Express, Inc. v. General Teamsters Local 326, 388 F.Supp. 1264 (D. Del. 1975), we know of no reason why the same consideration should not apply where the Board has instituted an action in the Court of Appeals and following an adverse result, attempts to present the same claims before its Administrative Law Judge. Every individual whose name appears in the complaint in- volved in the unfair labor practice proceeding (Pet. App. G, H,.1,J,K, pp. A-94, A-136) stands on exactly the same footing as Judy Scott Maness, Peggy Cagle, Bryce Todd, Robert Stephens, Robert Richardson, Sandra Matchett, and Randy Montgomery, all of whom were considered by the Court of Appeals and found not to be entitled to reinstatement because they were not unfair labor practice strikers. A contrary position would produce ludicrous results. Employees who were alleged by the Board to have been denied immediate reinstatement in the contempt action have had their rights finally adjudicated, adversely to them. Yet, the Board with approval of the Court of Appeals now is permitted to seek reinstatement and backpay for the employees listed in the complaint issued after this Court denied the Board's petition for certiorari on a legal proposition that is squarely “on all fours” with that which the Court of Appeals determined in the contempt action. It is estimated that a trial of these consolidated complaints would consume ten weeks (Pet. App. C, p. A-11). Over four thousand pages of testimony were considered by the Court of Appeals in the contempt action. This Court has said: —> , “Finality to litigation is an end to be desired as well in proceedings to which an administrative body is a party as in exclusively private litigation. The party adverse to the administrative body is entitled to rely on the conclusive- ness of the decree entered by a court to the same extent that other litigants may rely on judgments for or against them.” International Union v. Eagle-Picher Mining and Smelt- ing Co., 325 U.S. 336, 340 (1945). ~ To permit further litigation, as the Court of Appeals has done, destroys finality of judgments; undercuts the doctrines of res judicata and collateral estoppel: and forces the petitioners to expend time, effort and money for wich there is no hope of recoupment, even if successful. CONCLUSION The petition for a writ of certiorari should be granted. June, 1978 Respectfully submitted, W. OVID COLLINS, JR. CHARLES HAMPTON WHITE Third National Bank Building Nashville, Tennessee 37219 APPENDIX — * APPENDIX A United States Court of Appeals for the Sixth Circuit Decaturville Sportswear Co., Inc., > et al., Petitioners, | Nos. 78-1005, 18064, v. > 18154, 18249, 18250 and 18256. National Labor Relations Board, Respondent. 7 ORDER (Filed March 30, 1978) Before: Celebrezze, Peck and Lively, Circuit Judges This cause is before the Court on a petition to review and stay an order of the respondent Board entered September 16, 1977, directing a reopening of the record and the scheduling of a further administrative hearing on an unfair labor practice com- plaint lodged against the petitioning companies, and upon the motions of the respondent to dismiss the petition to review, deny the stay, and to issue an order clarifying its opinion in N.L.R.B. v. Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir.), cert. denied 423 U.S. 913 (1975). Petitioners have also filed a request for ora! argument and their brief in support of their petition. Petitioners have taken the position that the issues in the up- coming hearing on the unfair labor practices question have already been disposed of by the application of the doctrines of — A-2 — res judicata and collateral estoppel to the holding of this Court in the case cited above, wherein we found Decaturville not to be in contempt of the prior order of this Court in Decaturville Sportswear Co., Inc. v. N.L.R.B., 406 F.2d 886 (6th Cir. 1969). Upon consideration of the motions and supporting memo- randa of the parties, it is the conclusion of the Court that the September 16, 1977 order of the Board is not a final order within the meaning of § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f). The Court further finds that upon the conclusion of the administrative hearing and the issuance of a proper order by the Board, the petitioners, if still aggrieved, will be able to seek review in this Court. It is therefore ORDERED that the petition for review be, and it hereby is, dismissed. It is further ORDERED that the motion for a stay be, and it hereby is, denied and it is OR- DERED that the motion for an order of clarification be, and it hereby is, denied. ENTERED BY ORDER OF THE COURT s’ JOHN P. HEHMAN Clerk —~. APPENDIX B Office of the Clerk United States Court of Appeals For the Sixth Circuit Cincinnati, Ohio 45202 Decaturville Sportswear Co., Inc., } et al., VS. | No. 78-1005 National Labor Relations Board. Dear Counsel: Please be advised that pursuant to Rule 41(a), Federal Rules of Appellate Procedure, this Court’s mandate has today issued in the above entitled case. Costs in the amount of $ -0- have been taxed against the appellant appellee. Dated May 15, 1978. Very truly yours, JOHN P. HEHMAN, Clerk — APPENDIX C United States Court of Appeals for the Sixth Circuit Decaturville Sportswear Co., Inc., - et al., Petitioners, | Nos. 18,064, 18,249, v. 18,250, 18,256, and 18,154 National Labor Relations Board, Respondent. PETITION TO REVIEW ORDER OF NATIONAL LABOR RELATIONS BOARD AND TO STAY UNFAIR LABOR PRACTICE HEARING ORDERED THEREBY To the Honorable Judges of the United States Court of Ap- peals for the Sixth Circuit: The petitioners, Decaturville Sportswear Co., Inc., Marlene Industries Corporation, Trousdale Manufacturing Co., Inc Westmoreland Manufacturin Co., Inc., and Loris Manufa ferred to as the review, g Corp., Aynor Manufacturing cturing Co., Inc. [subsequently re- “company™] respectfully petition this Court to vacate, and set aside, pursuant to the provisions of Section 10(f) of the National Labor Relations Act, as amended, 29 USC § 160(f), the order of the National Labor Relations Board, entered September 17, 1977, known on the records of the National Labor Relations Board as Marlene Industries Cor- poration, Cases No. 26-CA-3642, et al., on the basis that the order of the National Labor Relations Board is repugnant to and stultifies the terms and provisions of the decision of this Court entered May 23, 1975. in this proceeding. Additionally, the petitioners would show that the order of the National Labor Relations Board, a photocopy of which is attached hereto and — — made a part hereof as Exhibit “A”, if permitted, will force the company to litigate exactly the same matters a second time which have already been considered by this Court in this proceeding, thereby depriving the company of its property without due process of law, in contravention of the provisions of the Fifth Amendment to the Constitution of the United States. The com- pany thus alleges it is aggrieved by the order of the Board. In support of this petition, the company alleges as follows: I. On September 21, 1971, the Board filed a petition seeking to have the company cited for contempt for failing to abide by the terms and provisions of a decree of this Court entered in the case of Decaturville Sportswear Co., Inc. v. NLRB, 406 F.2d 886 (6th Cir. 1969). This Court appointed the Hon. Harry W. Wellford, United States District Judge, as Special Master to hear the evidence concerning the allegations set forth in the Board's petition. II. On June 29, 1972. the National Labor Relations Board issued its decision in Russell Sportswear C orporation, 197 NLRB 1116 (1972). This Court on May 13, 1973, denied enforce- ment of this order of the Board and remanded the proceeding to the Board for further consideration to determine the rights, if any, of employees striking against Russell Sportswear C orpora- tion, Russell Springs, Kentucky, as sympathy strikers with the Decaturville, Tennessee, employees. NLRB v. Russel! Sportswear Corporation, — F.2d —. 83 LRRM 2225 (197° Ill. On September 21, 1973, the Board notified all parties that it had decided to accept the remand of this Court in Russel! Sportswear Corporation, and would take the action it deemed appropriate. IV. On October 5, 1973, and on June 12, 1974, the Hon. Harry W. Wellford, Special Master, appointed by this Court — Y to hear the evidence concerning the allegations of contempt against the company, filed his memorandum of law setting forth his conclusion that the strike which begafi at the plant of De- caturville Sportswear Co., Inc., Decaturville, Tennessee, in June of 1970, was not a protected activity and, therefore, the em- ployees of the company who engaged in sympathy strikes at the plants of Trousdale Manufacturing Co., Inc., Westmoreland Manufacturing Corp., Loris Manufacturing Co., Inc., and Ay- nor Manufacturing Co., Inc., were not engaged in protected activities. On May 23, 1975, this Court adopted the findings conclusions, and recommendations of Judge Wellford. NLRB , ’ l ( : V. On October 20, 1975, the Supreme Court of the United tates denied the Board's petition for certiorari to review the decision of this Court. 423 U.S. 913 (1975). | VI. On March 18, 1976, the Board issued its order reopen- ing the record in Russell Sportswear C Orporation, supra, and remanded the proceeding to the Regio — nal Direct 9 at Cincinnati, Ohio, for a hearing. . ector for Region PR. On June 29, 1976, the Regional Director for Region 260 the National Labor Relations Board issued a complaint in Cases Nos. 26-CA-3642, 3646, 3828. S111, 5112 saa3 5336-1, 5336-2, and 5355, against Decaturville Sportswear Cc Inc., Trousdale Manufacturing Co., Inc., and wewwsameclneny Manufacturing Corp., all located in Tennessee. | bees On July 13, 1976, John S. Irving, Esq., General Coun- sel of the Board, issued an order consolidating for trial the com- plaints issued by the Regional Directo | t for the 9th, 26th Regions against the company. aca aoe = August 17, 1976, the Regional Director for Region at Winston-Salem, North Carolina, issued a complaint in = hia Case No. 11-CA-5748 and 5749 against Loris Manufacturing Co., Inc., and Aynor Manufacturing Co., Inc., both located in South Carolina. X. On September 8, 1976, the Regional Director for Region 9 of the NLRB issued an additional complaint in Case No. 9- CA-8610 and 9-CA-8888 against Russell Sportswear Corpora- tion, Russell Springs, Kentucky. XI. A hearing was held at Decaturville, Tennessee, on Sep- tember 28, 1976, before Administrative Law Judge Irwin H. Socoloff, who directed the parties to file statements with respect to the validity of the answer of the company raising the issues of res judicata and collateral estoppel and the finality of this Court’s decision of May 23, 1975, as a total and complete bar to the unfair labor practice proceeding. XII. On April 7, 1977, Administrative Law Judge Socoloff issued his decision, a photocopy of which is attached as Exhibit “B” to this petition, in which he concluded “the allegations of the complaints herein, charging violations by respondents of Section 8(a)(3) and (1) of the Act, are barred under the ap- plicable res judicata and collateral estoppel principles.” A com- parison of the allegations of the Board's petition for contempt filde in this Court in September, 1971, as amended, with the allegations of the complaints in the instant proceeding, clearly reveals that the cardinal issue of the entire controversy is the character of the strike which began at Decaturville in June, 1970. All of the allegations of the complaints involving Russell Sportswear Corporation, M. Hoffman & Co., Inc., Landlubber Alabama, Inc., and other Marlene Industries Corporation sub- sidiaries, are entirely derivative and presuppose the existence of an unfair labor practice strike which began at Decaturville, Tennessee, in June, 1970. XIII. On September 17, 1977, the National Labor Relations Board issued the instant order in which it construed the signifi- — A-8 — cance of this Court's decision in NLRB y. Decaturville Sports- py Co., Inc., 518 F.2d 788 (6th Cir. 1975), cert. denied 2: U. S. 913 (1976), and concluded: “Under relevant tie. ciples of law as enunciated in numerous decisions the Seats = res judicata and collateral estoppel are not applicable where peace of proof has been higher in the first action than in 3 ond. Thus a contempt proceeding, such as the Decatur- ville decision, which involves an application of the ‘clear and convincing evidence’ standard, cannot bar a subsequent unfair labor practice proceeding involving a different cause of action different parties, and ‘a , preponderance of the evidence’ of proof.” [Exhibit “A”, page 2]. = Pe The company alleges that the order of the Board of ape 17, 1977, conflicts with the order of this Court of i , 1975, because it forces the company to relitigate events ich have already been completely and finally adjudicated in “3 contempt action culminating in this Court's order of May me po To anne the company to relitigate these facts or r derivative events as required by the September 17, 1977 Board order, violates the doctrines of res judicata and collet estoppel and deprives the company of its property without pen Process of law. In su ’ atin pport of this allegation, the company alleges A. The complaint issued June 29 . 1976. 3642, et al., alleges: 6. in Case No. 26-CA- “7 bys = ~e June 23, 1970, the below-named employees, ; whom were employed in the pressing department of espondent Decaturville at its Decaturville, Ten plant, did engage in a strike (list of names) | es “g Respondent Decaturville, on or about June 23, 1970. at its Decaturville, Tennessee ; . Plant, discharged . Ployees referred to in Paragraph 7 above ged those em ie wee —_ “9 “Respondent Decaturville discharged those employees re- ferred to in Paragraph 7 above as alleged in Paragraph 8 above and thereafter failed and refused to reinstate or recall said employees. because said employees engaged in the strike referred to in Paragraph 7 above or because suid employees engaged in other activities protected by Section 7 of the Act.” These allegations are identical to those considered by the Special Master in the contempt litigation and affirmed by this Court as follows: “On June 23, 1970, Nelson Rushing, an employee in the pressing department of the Decaturville, Tennessee, plant, was discharged. The Master concluded that he was dis- charged because of insubordination. The Board contends that Rushing’s union proclivities were at least part of the reason for Rushing’s discharge. “Rushing’s discharge prompted a walk-out of approximately 50 fellow pressers. These employees were then discharged. However, the company sent each a letter the following day offering full reinstatement. The Special Master concluded that the pressers were not justified in demanding that Rush- ing be reinstated and therefore their discharge was also not improper. The Special Master noted that in light of the reinstatement offer equity would not dictate reinstate- ment even if the employees had been unreasonably dis- charged. The company’s refusal to hire certain applicants or to rehire or reinstate various other striking employees was also found proper by che Special Master.” 518 F.2d at 790. Thus, the company alleges that the very issue ordered by the Board by its September 17, 1977, order to be litigated has al- ready been fully and finally determined by this Court. Under — A-10 — the principles of res judicata and collateral estoppel, this issue is Not open for further litigation. B. With respect to the reinstatement rights of the employees who went on strike in sympathy with the pickets at Decatur- ville, the complaint in Case No. 26-CA-3642 further alleges: “o> “On or about April 19, 1974, the below-named employees of respondent Trousdale, and other employees of respond- ent Trousdale, who participated in the strike described in Paragraph 10, made unconditional offers to respondent Trousdale to return to their former or substantially equiva- lent positions of employment: (list of names) “16. Respondent Decaturville, Westmoreland, and Trousdale failed and refused, and continue to fail and refuse, to re- instate their employees referred to in Paragraphs 13, 14 and 15 above, to their former or substantially equivalent positions of employment.” In passing on this allegation and other similar allegations re- specting other plants of the company, the Administrative Law Judge construed this Court's decision of May 23, 1975, as the law of the case and determined that this Court decided: "2. The Decaturville employees who protested the Rush- ing discharge were engaged in unprotected activity and, thus, were themselves lawfully discharged. 3. The strikers at others of respondents’ plants were not engaged in protected activities, “4. The rights of the sympathy strikers at the Russell plant are dependent upon the protected nature of the strikes at respondents’ other plants. “Ss. Tes strikes at said other plants were unprotected ac- tivities.” [Exhibit “B”, page 5], — A-ll — Again, the company alleges that the September 17, 1977, order of the Board will force the company to relitigate again entirely these questions which have been fully and finally resolved by this Court by its May 23, 1975, order. C. The company further alleges that if it is forced to re- litigate the issues raised by the complaints, as directed by the September 17, 1977, order of the Board, inconsistent results may follow which will effectively stultify or contradict the force of this Court's order of May 23, 1975. Thus, the company alleges that if it is forced to retry the validity of its discharge of pressers at Decaturville, Tennessee, in 1970, a subsequent proceeding might well result in an order of the Board directing the company to reinstate, with backpay, all pressers whom it discharged where this Court has sanctioned and approved the company’s action in discharging them. In like manner, a sub- sequent relitigation of the reinstatement rights of picketing em- ployees at all plants might well result in a decision of the Board that they were unfair labor practice strikers, entitled to imme- diate reinstatement and backpay, whereas this Court has held that they were engaged in unprotected activities and not en- titled to the benefits of Section 7 of the National Labor Re- lations Act. D. Additionally, the company alleges that the General Coun- sel of the Board estimates that the proceeding ordered by the September 17, 1977, order of the Board will require at least ten weeks’ trial in four different states and even if successful, there is no effective way that the company can recoup the time and financial resources expended in defense of these alle- gations. Thus, the company alleges that to permit a relitigation of issues fully determined and resolved by this Court in this case, as ordered by the Board in its September 17, 1977, order, deprives it of its property without due process of law contrary to the provisions of the Fifth Amendment to the Constitution of the United States. Finally, the company alleges that to per- eT pe — A-12 — mit relitigation of these issues where the Board accepted, with- out objection, the findings of fact of this Court's Special Master, violates the doctrines of res judicata and collateral estoppel and effectively undercuts and stultifies the judginent of this Court. E. Trial of this proceeding is scheduled to commence at Decaturville, Tennessee, on February 6, 1978, and unless this Court stays the proceeding until it can fully review the record, the company, having no other legal remedy available, will be deprived of its property without due process of law. WHEREFORE, the petitioners respectfully pray as follows: 1. That the Clerk issue an order requiring the Board to file with the Clerk of this Court a record of the proceedings before it in Case No. 26-CA-3642, et al., and respond to the allega- tions of this petition. 2. That the Court issue an order staying any proceeding ordered by the National Labor Relations Board, its agents, officers, servants, or employees, in Case No. 26-CA-3642, et al., pending a determination by this Court of the validity of the September 17, 1977, order as set forth in this petition. 3. That this Court, after due notice of hearing, enter an order vacating, setting aside, or voiding the September 17, 1977, order of the National Labor Relations Board in this case and directing the National Labor Relations Board to conduct no further proceedings on the issues involved in this matter. 4. That the Court take such other and further action and grant such other and further relief as may be deemed reason- able and proper to secure compliance with this Court's judg- ment of May 23, 1975, to the end that petitioners will not be deprived of their property without due process of law or forced to twice litigate facts, situations, episodes and events, com- pletely and fully adjudicated by this Court. — A-13 — Dated at Nashville, Tennessee. this 29th day of December, 1977. CHARLES HAMPTON WHITE Eighteenth Floor _! Third National Bank Building Nashville, Tennessee 37219 Attorney for the Petitioners Ss Certificate of Service 1. Charles Hampton White, certify that I am the posing: for the petitioners and that I have this day caused a my 4 the foregoing petition to be served upon oe peng edna 1 Counsel, National La Deputy Associate General “4 oad. 1717 Pennsylvania Avenue, N. W., Washington, noth 20570, by depositing a copy thereof in the United States . essed to Elliott Moore, Esq., at the above postage prepaid, addr ee address which is the last address of such person kn This 29th day of December. 1977. s CHARLES HAMPTON WHITE EO eeeeere_—VOV0O0Vne ee on AG APPENDIX D ORDER REOPENING RECORD AND REMANDING Exhibit “A” PROCEEDINGS TO REGIONAL DIRECTOR Not Included in Bound Volumes On April 7, 1977, Administrative Law Judge Irwin H. Soco- FJM loff issued his Decision in this proceeding recommending that the consolidated complaint be dismissed in its entirety. In so doing, the Administrative Law Judge concluded that the findings and conclusions of the United States Court of Appeals for the Sixth Circuit in N.L.R.B. v. Decaturville Sportswear Co., Inc., 518 F. 2d (1975); cert. den. 423 U. S. 913 (1976) must be Decaturville, Tenn. United States of America Before the National Labor Relations Board Marlene Industries Corporation; De- caturville Sportswear Co., Inc.: i. A-3642 accorded a res judicata or collateral estoppel effect in the instant Westmoreland Manufacturing Cor- 26-CA-3846 case. In support of this conclusion the Administrative Law poration; Trousdale Manufacturing 26-CA-3828 Judge noted that in passing on the legal status of employees who Company, Inc. 26-CA-5111 struck the Decaturville plant in 1970, the Court of Appeals 26-CA-5112 held, inter alia, that Decaturville’s discharge of strikers and its 26-CA-5113 refusal to rehire or reinstate strikers was not improper and was and 26-CA-5336(1) not a basis for a finding of civil contempt against the Company. 26-CA-5336(2) Inasmuch as the rights of sympathy strikers at Russell and at 26-CA-5355 various other Marlene Industries plants are central to the instant Marlene Industries Corporation: _— : litigation and are dependent upon the nature of the strike at the Frisco City Sportswear, Inc.: M. 15-CA-4834 Decaturville plant, and because he concluded that the Decatur- Hoffman & Company, Inc.; and 7 ville decision definitely resolved the nature of the Decaturville Landlubber Alabama, Inc. strike, the Administrative Law Judge reasoned that any further _ litigation of the allegations of the instant complaint is barred. iid Thereafter, the General Counsel and the Charging Party filed mune Speen Corporation Cases exceptions to the Administrative Law Judge's Decision and _ 9-CA-6384 briefs in support of their exceptions. Respondent filed a brief 9-CA-8610 in support of the Decision. Marlene Industries Corporation: Ay- Ph aes Pursuant to the provisions of Section 3(b) of the National nor Manufacturing Company, Inc.: 11-CA-5748 Labor Relations Act, as amended, the Board has delegated its Loris Manufacturing Company, 11-CA-5749 powers in this proceeding to a three-member panel. i ~ _ In their exceptions and supporting briefs the General Counsel and the Charging Party! urge, inter alia, that the Administrative International Ladies’ Garment Work- ers’ Union, AFL-CIO 1 On June 16, 1977, the Charging Party filed a Motion for Oral Argument. In view of our decision to remand these proceedings oral —_s Law Judge's application of the principles of res judicata and collateral estoppel to the facts of the instant litigation is errone- ous. We find merit in this position. The Court of Appeals emphasized in its Decaturville decision that a very different and more demanding burden of proof is required in a contempt pro- ceeding than in a normal proceeding for the enforcement of a Board order. See 518 F. 2d at 790. Thus in Decaturville, a contempt proceeding, the Court of Appeals applied a strict evi- dentiary standard of “clear and convincing evidence” in holding that the Board had failed to demonstrate that Respondent's con- duct, vis a vis its striking employees, constituted grounds for a finding of civil contempt. Under relevant principles of law as enunciated in numerous decisions* the doctrines of res judicata or collateral estoppel are not applicable where the standard of proof has been higher in the first action than in the second. Thus a contempt proceeding, such as the Decaturville decision, which involves an application of the “clear and convincing evidence” standard, cannot bar a subsequent unfair labor practice proceed- ing involving a different cause of action, different parties, and a “preponderance of the evidence” burden of proof. Accordingly, the Board having duly considered the matter, It Is Hereby Ordered that the record in the proceeding be, and it hereby is, reopened and that a further hearing be held before Administrative Law Judge Irwin H. Socoloff for the pur- pose of taking evidence in accordance with the remand of the United States Court of Appeals for the Sixth Circuit on July 17, 1973, and the Board’s Order Reopening Record and Remanding dated March 18, 1976. argument is not warranted at this time and said Motion is hereby denied. * The General Counsel and the Charging Party rely on Helvering v. Mitchell, 303 U.S. 391, and Neaderland v. Commissioner of In- ternal Revenue, 424 F. 2d 639 (C.A. 2, 1970) among other cases. — * ; It Is Further Ordered that this proceeding be remanded to the Regional Director for Region 26 for the purpose of arranging such further hearing, and that said Regional Director be, and he hereby is, authorized to issue notice thereof. It Is Further Ordered that upon conclusion of such further hearing, the Administrative Law Judge shall prepare and serve upon the parties a Supplemental Decision setting forth the reso- lution of any necessary credibility issues, and his findings, con- clusions, and recommendations with respect to the allegations of the consolidated complaint. Copies of such Supplemental Decision shall be served on all the parties after which the pro- visions of Section 102.46 of the Board’s Rules and Regulations. Series 8, as amended, shall be applicable. Dated, Washington, D.C., September 16, 1977. John H. Fanning, Chairman Howard Jenkins, Jr., Member Betty Southard Murphy, Member (Seal) National Labor Relations Board —s APPENDIX E Exhibit “B” JD-231-77 Decaturville, TN United States of America Before the National Labor Relations Board Division of Judges Marlene Industries Corporation; Decaturville Sportswear Co., Inc.; Westmoreland Manufacturing Corpo- ration; Trousdale Manufacturing Company. Inc., and Marlene Industries Corporation; Frisco City Sportswear, Inc.: M. Hoffman & Company, Inc.: and Landlubber Alabama, Inc., and Russell Sportswear Corporation and Marlene Industries Corporation; Aynor Manufacturing Company, Inc.: Loris Manufacturing Company, Inc.. and International Ladies Garment Workers’ Union. AFL-CIO. Cases 26-CA-3642 26-CA-3646 26-CA-3828 26-CA-5111 26-CA-5112 26-CA-5113 26-CA-5336(1) 26-CA-5336(2) 26-CA-5355 Case 15-CA-4834 Cases 9-CA-6384 9-CA-8610 9-CA-8888 Cases 11-CA-5748 11-CA-5749 — A-19 — Robert G. Levy II, Esq., Houston, TX, for the General Counsel. James R. Goldberg, Esq., Atlanta, GA, for the Charging Party. Charles H. White, Esq., Nashville, TN, for the Respondent. DECISION IRWIN H. SOCOLOFF, Administrative Law Judge: Marlene Industries Corporation, herein called Marlene, its wholly owned subsidiary manufacturing plants, and certain alleged successors, Respondents herein, are engaged in the manufacture and sale of wearing apparel. Respondents, and each of them, are em- ployers engaged in commerce within the meaning of the Act. and meet the Board's standards for assertion of jurisdiction. International Ladies’ Garment Workers’ Union, AFL-CIO, herein called the Union, is a labor organization within the mean- ing of the Act. The Complaints in this consolidated proceeding allege viola- tions by the Respondents of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. Those allegations are denied by Re- spondents in their Answers. By my Order dated October 28, 1976, trial in this matter was postponed indefinitely, pending resolution of the res judicata issues raised by Respondents’ af- tirmative defenses. The parties thereafter filed briefs which have been duly considered. Posture of the Case On January 29, 1969, in Decaturvilie Sportswear Co. vy. N.L.R.B.,' the Court of Appeals for the Sixth Circuit enforced, in part, a Board Order’ based upon findings that Marlene and its subsidiaries had conducted a centrally directed and violent ' 406 F. 2d 886 (6 Cir., 1969). * Marlene Industries, et al., 166 NLRB 703 (1967). — A-20 — campaign of massive and deliberate unfair labor practices at all seven of their manufacturing plants, including numerous violations of Section 8(a)(1) and Section 8(a)(3) of the Act. Respondents’ actions were in response to the Union's organizing campaign among employees of the subsidiary plants. Subse- quently, the Board instituted contempt proceedings against Marlene and certain subsidiaries, based, inter alia, upon the June 23, 1970 discharge of employee Rushing at the Decatur- ville plant; the discharge of Decaturville employees who en- gaged in a protest of the Rushing discharge; the refusal to hire certain employment applicants, and reinstate certain strikers, at Decaturville; and the refusal to reinstate sympathy strikers at other plants. On May 23, 1975, the Sixth Circuit adopted the findings, conclusions and recommendations of its Special Master and ruled that Respondents were not in contempt of the Court's 1969 order.* Specifically, the Court approved the Master's findings that Rushing was discharged for insubordination; that the protesting Decaturville strikers were not justified in demand- ing that Rushing be reinstated and, therefore, their discharge was also not unlawful; that the sympathy strikers at other plants were striking, at least in part, for their own economic reasons and, accordingly, their walk-out without notice to Respondents, and without making any efforts to advise management of the nature of their grievances, was not protected activity; and that Re- spondents did not act illegally in refusing to hire certain Decatur- ville applicants and reinstate others. The Court noted: “The Special Master's mere mention of impermissible motives possibly playing some role in the dismissal of Rush- ing and others employees hardly rises to the level of clear and convincing evidence of impermissible dismissals jus- tifying a finding of civil contempt. A contempt proceeding is a setting very different from a normal proceeding for the enforcement of a Board order. The burden imposed by the * N.L.R.B. v. Decaturville Sportswear Co., Inc., 518 F. 2d 788 (6 Cir., 1975); cert. den. 423 U.S. 913 (1976). — A-21 — clear and convincing evidence standard is heavy. The Board has failed to demonstrate that the Special Master erred in his findings or conclusions.” The status of the sympathy strikers at Respondents’ Russell plant was not litigated before the Special Master but, rather, was the subject of a separate unfair labor practice case. On May 15. 1973, 2 years before the decision in the Decaturville contempt proceeding, the Sixth Circuit denied enforcement of the Board’s order,* holding”: “. . . there is not substantial evidence to support the con- clusion of the Board that the picketers were engaged in pro- tected activity. There is no evidence in the record that the strikes at the other plants of respondent’s parent were pro- tected activity and thus, no evidence to support the con- clusion in this case that the strikers at respondent's plant were entitled to protection as unfair labor practice strikers, the assumption on which the Board based its determination that the strikers’ activities were protected. The strikers at respondent's plant could obtain no greater protection than that enjoyed by their counterparts with whom they were Striking in sympathy.” On July 17, 1973, upon a petition for rehearing, the Court vacated its earlier order and remanded the matter to the Board “to determine whether the strike with which the strikers at respondent's plant were striking in sympathy was activity pro- tected under the Act; to consider any additional evidence that may be offered; and to take such other action as it deems ap- propriate in view of this court’s previous order.”* Thereafter. the 4+ 197 NLRB 1116 (1972). * N.L.R.B. v. Russell Sportswear Corp., 71 L.C. 13667 (6 Cir.. 1973). * N.L.R.B. v. Russell Sportswear Corp., 72 L.C. 13905 (6 Cir., 1973). — A-22 — Board decided to accept the remand and ordered that the record in that case (9-CA-6384) be reopened. Subsequently, that mat- ter was consolidated with the new round of Marlene cases now pending before me. Of course, in its subsequent Decaturville decision, the Court answered the very question underlying the Russell remand, namely, whether the strike with which the Russell strikers were acting in sympathy, was protected activ’ty. In Decaturville, the Sixth Circuit held that the Decaturville strike was an unpro- tected activity. In the instant consolidated proceeding, the General Counsel seeks, not only to offer additional evidence pursuant to the Rus- sell remand, but to relitigate the status and legal rights of the strikers at the other Marlene and former Marlene plants, the very matters tried before the Special Master whose report, as noted, was adopted by the Court of Appeals.’ In response to Respondents’ res judicata defenses, the General Counsel asserts that: 1. “. . . the very Circuit Court of Appeals who heard through its special master the contempt proceedings, re- manded a companion case known as Russell Sportswear Company to the Board for the purpose of taking additional testimony regarding the nature of the strike at Respondent's Decaturville Sportswear Co., Inc. location;” and 2. “. .. the findings by the special master in the aura of a contempt proceeding did not preclude the General Counsel * While maintaining that the strikers were unfair labor practice strikers, the General Counsel alleges, alternatively, that the strikers were economic strikers, entitled to reinstatement rights as such, a matter necessarily encompassed by the prior litigation. Thus, the Gen- eral Counsel concedes in its bref to me that the Court viewed the Decaturville strikers, and the sympathy strikers, as having “engaged in activity that was something less than ‘protected concerted ac- tivity)...” — A-23 — from litigating the underlying unfair labor practices which were present and which would be so found by the Board.” Analysis The General Counsel and the Charging Party maintain, as a matter of law, that the findings and conclusions of the Court of Appeals in the contempt case are not entitled to a res judicata or collateral estoppel effect in this unfair labor practice proceed- ing before the Board, and, accordingly, that this matter should proceed to trial. They also urge that the Board, were it to view the same evidence and decide the same legal issues previously before the Court, would reach contrary conclusions. Indeed, the General Counsel, before the Sixth Circuit, accepted the findings of fact of the Special Master, excepting only to his conclusions of law. Finally, as noted, they point to the Court's Russell re- mand as indicating that the Court did not view its findings in the Decaturville contempt proceeding as having a res judicata effect upon retrial of those issues in a subsequent Board case. The Court’s remand in Russell preceded its decision in De- caturville. In the latter case, the Court decided the very issue earlier remanded to the Board and, accordingly, if the Court's Decaturville decision has a res judicata effect, it is also disposi- tive of the Russell case. As to the wisdom and correctness of the Court's decision in Decaturville, that matter is not for me, or the Board, to decide. The Court’s decisions are the law of the case. The Court has determined that: 1. Rushing was discharged for cause; 2. The Decaturville employees who protested the Rushing discharge were engaged in unprotected activity and, thus, were themselves lawfully discharged. 3. The strikers at others of Respondents’ plants were not engaged in protected activity. —_ 4 . ’ Audry Horner Ben Horner Fred Horner Vera Mae Horner Brenda Inman Carol Inman Gail Inman Betty Jo Ivey Ruby Jennings Anthony Johnson Bobbie Johnson Eual Mae Johnson Joey Johnson Mary Johnson Sue Johnson Fred Jones Gary Jones Melba Jones Bill Keats Rickey Kennedy Linda Leasure Mary Helen Lindsey Lynn Lowery Junior Mayo Rick C. McClue Dorothy McDaniel William McEarl Bernard Mervhill Linda Millinder Dwight Millner Faye Millner Jimmy N. Millner Wanda Montgomery Randy Moody Rondald E. Moyes Bonnie Newman — A-108 — Joyce Newman Joann Oguinn Vickie Parrish Hazel Patterson Patty Patterson Billy Pearcy Mary Ruth Pearcy Mickey Pearcy Benny Perry Bobbie Perry Nettie J. Petterson Zenobia Pettigrew Jimmy Dale Pitts Mary R. Pratt Dewey D. Quinn Zora Quinn Faye Railey Regina Reeves Curtis Renfroe David Renfroe James Renfroe Helen Sims Rhodes Diane Roach Marie Roach Phillip Robbins Mary Roberson Julie Robertson Alton Rogers Danny Lee Rogers Thomas Rogers Author Rose Carolyn Rushing Christine Rushing Harry Rushing Janey Rushing Mae Rushing — am - — A-109 — Paulette Rushing Glen Scott Judy Maness Scott Linda Scott Sue Nell Scott Dorothy Shelton John Shoverr Parker Spence Doris A. Stanfill Ruth Stanfill Shirley Stout Susie Stout Bob Swindle Doris Tharp Lorine Tharp Nancy Thomas Art Townsend Shirley F. Vise Cecil Walker Tommy Walker Nancy Wallace Stella Ward Joyce Weatherford Raymond E. White Grady Wicker Jettie Wicker Linda Williams Peggy Woods Lona Wylie Frances Yarbo Jane Yarbo Paragraph 14 of the Consolidated Complaint is amended so as to reflect as follows: On or about April 19, 1974, the below-named employees of Respondent Westmoreland, and other employees of Respond- ent Westmoreland, who participated in the strikes described in paragraph 10 above, made unconditional offers to Respondent Westmoreland to return to their former or substantially equiva- lent positions of employment: Melinda Brawner Mary Ruth Cannon Darlene Carter Mary Ruth Carter Frances Coulter Denise Driver Margaret Driver Brenda Filson Myrtle Gammons Fannie J. Gann Mary N. Graves Nancy Graves Patsy Gulley Barbara Hammock Joyce Hammock Rickie Hudson Barbara Hyde Donald Key — A-110 — Corine Cannon Miller Sheila Trout Linda Sadler Bertha Wheeler Martha Summers Naomi White Linda Thompson Kenneth Wix 3 Paragraph 15 of the Consolidated Complaint is amended so as to reflect as follows: On or about April 19, 1974, the below-named employees of Respondent Trousdale, and other employees of Respondent Trousdale, who participated in the strikes described in para- graph 10 above, made unconditional offers to Respondent Trousdale to return to their former or substantially equivalent positions of employment: Judy Bacon Mary Ann Bay Donna Carter Shirley Carter Betty Cassetty Glenda Daniel Ricky Dickens Athatlene East Barbara Nell Gammons Patricia Rose Gammons Bobbie Gregory Geraldine Gregory Polly K. Henley Sally Jo Hiett Shirley Fay Humes Brownie Johns Larry Jones Carolyn Kelton Paul King Sue King James McClard Ruby McClard Shirley (Carter) McClard Clovis Meryman Belvie Nash Willa Dean Patterson Virginia Raney Dorothy Ray Alma Scruggs Lonie Smith Wanda Smith Gloria Spears Linda Spears Donnie Steen Willa D. Patterson Thurman Mary Tuttle Betty Wilson Sherry Jones Donald Bergdorf Roger Bullock Jerry Sewell — A-111 — Please Take Notice that, pursuant to Section 102.20 and 102.21 of the Board’s Rules and Regulations, Respondents, and each of them, shall file with the Regional Director acting in this matter as agent of the National Labor Relations Board, an orig- inal and four (4) copies of an Answer to said Amendment to Consolidated Complaint within ten (10) days from the service thereof, and that unless they do so, all of the allegations in the Amendment to Consolidated Complaint shall be deemed to be admitted to be true and may be so found by the Board. Immediately upon the filing of its answer, each Respondent shall serve a copy thereof on each of the other parties. Dated at Memphis, Tennessee. this 17th day of August. 1976. s JOHN F. HARRINGTON Acting Regional Director National Labor Relations Board Region 26 Clifford Davis Federal Building Room 746 167 North Main Street Memphis. Tennessee 38103 — A-112 — APPENDIX ! United States of America Before the National Labor Relations Board Region 11 Marlene Industries Corporation; Ay- nor Manufacturing Company, Inc.; Loris Manufacturing Company, Inc. and Case Numbers: 11-CA-5748 International Ladies’ Garment Work- 11-CA-5749 ers’ Union, AFL-CIO. ORDER CONSOLIDATING CASES, COMPLAINT AND NOTICE OF HEARING It having been charged by the International Ladies’ Garment Workers’ Union, AFL-CIO, herein called the Union, in Cases Nos. 11-CA-5748 and 11-CA-5749, that Marlene Industries Corporation, Aynor Manufacturing Company, Inc., and Loris Manufacturing Company, Inc., hereinafter respectively called Respondent Marlene, Respondent Aynor, and Respondent Loris, have engaged in, and are now engaging in, unfair labor prac- tices affecting commerce as set forth and defined in the Na- tional Labor Relations Act, as amended, 29 U.S.C. Sec. 151, el seq., herein called the Act, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board, by the undersigned Regional Director for the Eleventh Region, having duly considered the matter and deeming it necessary in order to effectuate the purposes of the Act and to avoid unnecessary costs and delay, HEREBY ORDERS, pursuant to Section 102.33 of the Board’s Rules and Regulations, Series 8, as amended, that these cases be, and they hereby are, consolidated. — A-113 — Said cases having been consolidated for hearing, the General Counsel of the Board, on behalf of the Board, by the under- signed Regional Director, pursuant to Section 10(b) of the Act, and the Board’s Rules and Regulations, Series 8, as amended, Section 102.15, hereby issues this Order Consolidating Cases, Complaint and Notice of Hearing, and alleges as follows: The charge in Case No. 11-CA-5748 was filed on May 20. 1974, and was served on Respondent on May 20, 1974. The charge in Case No. 11-CA-5749 was filed on May 20. 1974, and was served on Respondent on May 20, 1974. 2 (a) Respondent Marlene, is now, and has been at all times material herein, a corporation with its principal office located in New York, New York, and is engaged, through wholly- owned subsidiaries, in the manufacture and sale of wearing apparel. (b) Respondent Aynor, is now, and has been at all times ma- terial herein, a corporation and a wholly-owned subsidiary of Re- spondent Marlene, and is engaged in the manufacture of wearing apparel at its plant located in Aynor, South Carolina. (c) Respondent Loris, is now, and has been at all times ma- terial herein, a corporation and a wholly-owned subsidiary of Re- spondent Marlene, and is now engaged in the manufacture of wearing apparel at its plant located in Loris, South Carolina. 3 (a) Respondent Marlene, in the course of conduct of its busi- ness Operations, annually sells and ships products valued in ex- f A-114— cess of $50,000 directly across state lines in various states of the United States. (b) During the past twelve months, Respondent Aynor, in the course and conduct of its business operations, purchased and received at its Aynor, South Carolina, plant, materia!s valued in excess of $50,000 directly from points located outside the State of South Carolina, and, during the same period of time, it sold and shipped from its Aynor, South Carolina, plant, goods valued in excess of $50,000 directly to points located outside the State of South Carolina. (c) During the past twelve months, Respondent Loris, in the course and conduct of its business operations, purchased and received at its Loris, South Carolina, plant, materials valued in excess of $50,000 directly from points located outside the State of South Carolina, and, during this same period of time, it sold and shipped from its Loris, South Carolina, plant, goods valued in excess of $50,000 directly to points located outside the State of South Carolina. 4 (a) Respondent Marlene, Aynor, and Loris are now, and have been at all times material herein, employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. (b) At all times material herein, Respondent Marlene and its wholly-owned subsidiaries, including Respondent Aynor and Re- spondent Loris, have been affiliated businesses with common offices, ownership, directors, and operators constitute a single integrated business enterprise with said director and operators formulating and administering a common labor policy for its employees. — A-115 -— 5 The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 6 At all times material herein, the following-named persons occupied the positions set opposite their names and were agents of the Respondents, acting on their behalf, and were supervisors within the meaning of Section 2(11) of the Act: Charles Meltzer —President of Marlene’ Industries Corporation Samuel Meltzer —Treasurer of Marlene Industries Corporation Herman Epstein -—Plant Manager. Aynor Manufactur- ing Company, Inc. Leonard F. Moore —Plant Manager, Loris Manufactur- ing Company. Inc. 7 (a) On or about June 23, 1970. certain employees of Re- spondent Marlene employed at its wholly-owned manufacturing subsidiary located in the Decaturville, Tennessee (Decaturville Sportswear Company, Inc.) ceased work concertedly and went on strike; (b) On or about July 16, 1970, certain employees of Re- spondent Marlene employed at its Aynor, South Carolina, manu- facturing subsidiary (Respondent Aynor), ceased work con- certedly and went on strike; — A-116 — (c) On or about July i6, 1970, certain employees of Re- spondent Marlene employed at its Loris, South Carolina, manu- facturing subsidiary (Respondent Loris), ceased work concert- edly and went on strike; (d) The strike activity described above in subparagraphs (a), (b) and (c) was caused and/or prolonged by the unfair labor practices of Respondent Marlene; (e) Alternatively the strike activity described above in sub- paragraphs (a), (b) and (c) was economic in nature. 8 (a) Commencing on or about April 19, 1974, and thereafter, the following employees employed by Respondent Marlene at the Aynor, South Carolina, facility, who had engaged in the strike referred to in paragraph 7(b), above, made unconditional offers to return to Respondent Marlene and Respondent Aynor to return to work: Sarah Allen Cathy Martin Ernestine Almeida Myrna Rabon Martin Ila Mae Cannon Nannie Martin Mildred Dew Jeanette Mincey Delores Evans Gracie Rabon June Johnson Gerry Skipper Millie Lane Velma Small Lucy Larrimore (b) Since on or about April 19, 1974, Respondent Aynor has failed and refused, and is continuing to fail and refuse, to reinstate the employees named in subparagraph (a) above; (c) Since on or about April 19, 1974, Respondent Aynor has failed and refused, and continues to fail and refuse, to reinstate the employees named in subparagraph (a) above, for on S697 an the reason that said employees had joined or assisted the Union, engaged in other protected, concerted activities for the purpose of mutual aid or protection and or participated in the strike referred to in paragraph 7(b), above; (d) By the acts and conduct described in subparagraphs (b) and (c), above, and by each of said acts and conduct, Respond- ent Aynor has caused the strike referred to in paragraph 7(b), above, to be prolonged. 9 (a) Commencing on or about March 7, 1974, and there- after, the fo!lowing employees employed by Respondent Mar- lene at the Loris, South Carolina, facility, who had engaged in the strike referred to in paragraph 7(c), above, made uncon- ditional offers to Respondent Marlene and Respondent Loris to return to work: Eula Mae Bellamy Harvey Bellamy Deborah Booth Marilyn Boswell Ronald Brown John A. Bryant Corley Causey Ester Edwards Delores Evans Linda Faircloth Sharon Faircloth Billy Maw Floyd Mike Floyd Mary Alice Fowler Williams Dale Fowler Myrtis Galloway Linda Gause Charles Graham Clovel Goff Ethel Hammond Carolyn Harden Lloyd Harrelson Linda Hickman Marion Hooks Cecil Nell Hughes Floosie Jernigan Phyllis (Mishoe) Johnson Frances Larrimore Jackie Lewis Keith Lewis Elaine Livingston Freddie M. McLumbee Bonnie Martin Sellers Marie Mincy Terry Norris Winston Norris — A-118 — Doris Powell Shirley Strickland Larry Rhodes Lawrence V. Stroud Mary E. Sarvis Thershia Tompkins Mike Sellers Mildred McDowell Waddell Barbara Small Bonnie Watts Patty Small Bryant Debbie Williamson Velma Small Ola Mae Jacobs Winston Soles Inez Johnson Clyde Strickland Millie Lane Sandra Strickland (b) Since on or about March 7, 1974, Respondent Loris has failed and refused, and is continuing to fail and refuse, to re- instate the employees named in subparagraph (a), above; (c) Since on or about March 7, 1974, Respondent Loris has failed and refused, and continues to fail and refuse, to rein- state the employees named in subparagraph (a), above, for the reason that said employees had joined or assisted the Union, engaged in other protected, concerted activities for the purpose of mutual aid or protection and or participated in the strike referred to in paragraph 7(c), above: (d) By the acts and conduct described in paragraphs (b) and (c), above, and by each of said acts and conduct, Respondent Loris has caused the strike referred to in paragraph 7(c), above, to be prolonged. 10 By the acts and conduct described above in paragraphs 8(b), (c), and (d), and 9(b), (c), and (d), above, and by each of said acts and conduct, Respondent Marlene, Respondent Aynor, and Respondent Loris, respectively, having engaged in, and are en- gaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3), and Section 2(6) and (7) of - *. — A-119 — the Act, for which Respondent Marlene, Respondent Aynor, and Respondent Loris are jointly and severally liable. PLEASE TAKE NOTICE that on the 7th day of September, 1976, at 1:00 p.m., CDST, in the Courtroom, Decatur County Court House, Decaturville, Tennessee, and consecutive days thereafter until concluded, a hearing will be conducted before a duly designated Administrative Law Judge of the National Labor Relations Board on the allegations set forth in this Consolidated Complaint, at which time and place you will have the right to appear in person or otherwise and give testimony. Form NLRB- 4668, Statement of Standard Procedures in Formal Hearings Held Before the National Labor Relations Board in Unfair Labor Practice Cases, is attached. You are further notified that pursuant to Section 102.20 and Section 102.21 of the Board’s Rules and Rgulations, Series 8. as amended, Respondent shall file with the Regional Director for the Eleventh Region, acting in this matter as agent for the Na- tional Labor Relations Board, an original and four (4) copies of an Answer to said Consolidated Complaint within ten (10) days from the service thereof, and unless they do so, all the allega- tions in the Consolidated Complaint shall be deemed to be ad- mitted to be true and may be so found by the Board. Imme- diately after the filing of their answer, Respondents shall serve a copy thereof on each of the other parties. - Dated at Winston-Salem. North Carolina, this 17th day of August, 1976. s REED JOHNSTON Regional Director National Labor Relations Board Region 11 447 Federal Building 251 North Main Street Winston-Salem, North Carolina 27101 — A-120 — APPENDIX J United States of America Before the National Labor Relations Board Region 9 In the Matter of Marlene Industries Corporation and Case No. 9-CA-8610 Russell Sportswear Corporation and Case No. 9-CA-8888 International Ladies’ Garment Workers Union, AFL-CIO. ORDER CONSOLIDATING CASES AND CONSOLIDATED COMPLAINT It having been charged by International Ladies’ Garment Workers Union, AFL-CIO, herein called the Union, in Case No. 9-CA-8610, and by Delores Pemberton, Janit Burchett, Beverly Burchett and Olza Thomas, Individuals, herein called Pember- ton, in Case No. 9-CA-8888, that Marlene Industries Corpora- tion and Russell Sportswear Corporation, respectively, herein individually called Respondent Marlene and Respondent Russell, respectively, and collectively called Respondents, have engaged in, and are engaging in, certain unfair labor practices affecting commerce as set forth and defined in the National Labor Rela- tions Act, as amended, 29 U.S.C., Sec. 151. et seq., herein called the Act, the General Counsel of the National Labor Rela- tions Board, herein called the Board, on behalf of the Board, by the undersigned Regional Director for Region 9, having duly considered the matter and deeming it necessary in order to a — A-12! — effectuate the purposes of the Act, and to avoid unnecessary costs or delay, Hereby Orders, pursuant to Section 102.33 of the Board's Rules and Regulations, Series 8, as amended, that these cases be, and they hereby are, consolidated. Said cases having been consolidated for hearing, the General Counsel of the Board, on behalf of the Board, by the undersigned Regional Director, pursuant to Section 10(b) of the Board's Rules and Regulations, Series 8, as amended, Section 102.15, hereby issues this Order Consolidating Cases and Consolidated Complaint and alleges as follows: 1. (a) The charge in Case No. 9-CA-8610 was filed by the Union on June 27, 1974, and was served on Respondents by registered mail on June 28, 1974. (b) The charge in Case No. 9-CA-8888 was filed by Pemberton on October 22, 1974, and was served on Respondent Russell by registered mail on October 25, 1974. 2. (a) Respondent Marlene is now, and has been at all times material herein, a corporation with its principal office located in New York, New York, and is engaged, through wholly-owned subsidiaries, in the manufacture and sale of wearing apparel. (b) Respondent Russell is now, and has been at all times material hereia, a corporation and a wholly-owned subsidiary of Respondent Marlene and is engaged in the manufacture of wearing apparel at its plant located in Russell Springs, Kentucky. (c) Respondent Marlene, in the course and conduct of its business operations, annually sells and ships products valued in excess of $50,000 directly across state lines to various states of the United States. (d) Dur’ g the past 12 months, Respondent Russell, in the course and conduct of its business operations, purchased and — A-122 — received at its Russell Springs, Kentucky plant, materials valued in excess of $50,000 directly from points located outside the State of Kentucky and, during the same period, it sold and shipped from its Russell Springs, Kentucky plant goods valued in excess of $50,000 directly to points located outside the State of Kentucky. (e) Respondent Marlene and Respondent Russell are now, and have been at all times material herein, “employers” engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (f) At all times material herein, Respondent Marlene and its wholly-owned subsidiaries, including Respondent Russeii, have been affiliated businesses with common officers, ownership, di- rectors and operators and constitute a single integrated business enterprise with said directors and operators formulating and administering a common labor policy for all employees. 3. At all times material herein, the Union is, and has been, a “labor organization” as defined in Section 2(5) of the Act. 4. At all times material herein, the following-named persons occupied the positions set opposite their respective names and were agents of Respordents, acting on their behalf, and were supervisors within the meaning of Section 2(11) of the Act: Charles Meltzer — President Marlene Industries Corporation Samuel Meltzer — Treasurer Marlene Industries Corporation Gordon Taylor — Plant Manager Russell Sportswear Corporation Boyd Wilson — Personnel Manager Russell Spo: tswear Corporation ——— — A-123 — 5. On or about June 23, 1970, certain employees of the De- caturville Sportswear Co., Inc., herein called Decaturville, a corporation and a wholly-owned subsidiary of Respondent Mar- lene engaged in the manufacture of wearing apparel at its plant located in Decaturville, Tennessee, ceased work concertedly and went on strike. 6. On or about June 23, 1970, Decaturville discharged the employees referred to in paragraph 5, above, and thereafter failed and refused to reinstate or recall said employees because they had engaged in the strike referred to in paragraph 5, above, or because they had engaged in other activity protected by Section 7 of the Act. 7. Commencing on or about May 4, 1971, and various dates thereafter, and continuing to on or about April 15, 1974. cer- tain employees of Respondent Russell, at its Russell Springs, Kentucky plant, ceased work concertedly and went on strike for the purpose of protesting the discharges of the employees referred to in paragraph 5, above, and for the purpose of show- ing their sympathy for those employees referred to in paragraph 5, above. for having been discharged on or about June 23, 1970. 8. Respondent Russell, by its supervisor and agent, Boyd Wilson, on or about May 5, 1971, and at times thereafter, sent ietters to certain of the striking employees of Respondent Russell which state, inter alia, as follows: On May 4, 1971 [or various appropriate dates there- after], you failed to report for work, and joined a group of people who were demonstrating outside our plant. You are hereby directed to return to work Friday, May 7, 1971 [or various appropriate dates thereafter], at 7:00 a.m. If you have not reported for work by 3:45 p.m., Monday, May 10, 1971 [or various appropriate dates thereafter, five days — A-124 — after date of letter], we will hire a new employee to replace you and will mark your records accordingly. * * > * > * > On May 26, 1971 [or various appropriate dates there- after], you left your work station in the plant without notice to your supervisor, and joined a group of people who were demonstrating outside our plant. You are hereby directed to return to work Tuesday, June 1, 1971 [or various appropriate dates thereafter], at 7:00 a.m. If you have not reported for work by 3:45 p.m., Wednesday, June 2, 1971 [or various appropriate dates thereafter, five days after date of letter], we will hire a new employee to replace you and will mark your records ac- cordingly. 9. The strike referred to in paragraph 7, above, was caused by Respondent Marlene’s and Decaturville’s unfair labor prac- tices described in paragraph 6, above, and was prolonged by Respondents’ unfair labor practices described in paragraph 8, above. 10. (a) On or about April 15, 1974, the below-name em- ployees of Respondent Russell who participated in the strike described in paragraph 7, above, made unconditional offers to Respondent Russell to return to their former or substantially equivalent positions of employment: Betty Bray Marcella Lawless Susie Burton Bessie Mann Alice Chumbley Arthur McQueary Brenda Childress Connie McQueary Mary Foley Nathan Norman Doris Flanagan Eva Ping Leda Harting Ann Popplewell Jennifer Johnson Sherlene Popplewell — A-125 — Zelma Popplewell Ronni Tucker Imogene Roy Bernice West Louise Robertson Mittie Westley Violet Sullivan Karen Wisdom Geroldene Stephens (b) On or about October 11, 1974, the below-named em- ployees of Respondent Russell who participated in the strike described in paragraph 7, above, made unconditional offers to Respondent Russell to return to their former or substantially equivalent positions of employment: Beverly Burchett Janit Burchett Delores Pemberton Olza Thomas (c) Respondent Russell failed and refused, and continues to fail and refuse, to reinstate their employees referred to in paragraph 10, subparagraphs (a) and (b), above, to their former or substantially equivalent positions of employment. 11. (a) If the strikes referred to in paragraphs 5 and 7, above, are found to be unfair labor practice strikes, as alleged, Re- spondent Russell failed and refused, and continues to fail and refuse, to reinstate their employees referred to in paragraph 10, subparagraphs (a) and (b), above, to their former or sub- stantially equivalent positions of employment because those em- ployees engaged in the strike described in paragraph 7. above. (b) Alternatively, if the strikes referred to in paragraphs 5 and 7, above, are not found to be an unfair labor practice strikes, the employees of Respondent Russell referred to in paragraph 10, subparagraphs (a) and (b), above, and others whose names are unknown to the Regional Director, are economic strikers — A-126 — who remain entitled to reinstatement and whom Respondent Russell has failed and refused to reinstate, even though their former or substantially equivalent positions of employment have, since they have unconditionally applied for reinstatement, be- come open. 12. By the acts described above in paragraphs 8, 10(c), 11(a) and 11(b), and by each of said acts, the Respondents did inter- fere with, restrain and coerce, and are interfering with, restrain- ing and coercing, their employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby did engage in, and are engaging in, unfair labcr practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 13. By the acts described above in paragraphs 10(c), 11(a) and 11(b), and by each of said acts, Respondents did discrim- inate, and are discriminating, in regard to the hire or tenure or terms or conditions of employment of their employees, thereby discouraging membership in a labor organization, and Respondents thereby did engage in, and are engaging in, un- fair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. You are hereby notified that, pursuant to Sections 102.20 and 102.21 of the Board's Rules and Regulations, Series 8, as amended, Respondents shall file with the undersigned Regional Director, acting in this matter as an agent of the Board, an original and four (4) copies of an Answer to said Consoli- dated Complaint within ten (10) days from the service thereof, and that unless it does so, all of the allegations of the Consoli- dated Complaint shall be deemed to be admitted to be true and shall be so found by the Board. /mmediately upon the filing of its Answer, Respondents shall serve a copy thereof on each of the other parties. — A-127 — Form NLRB-4668, Statement of Standard Procedure in Formal Hearings Held Before the National Labor Relations Board in Unfair Labor Practice Cases, is attached. Dated at Cincinnati, Ohio. this 8th day of September, 1976. s EMIL C. FARKAS Regional Director Region 9 National Labor Relations Board 3003 Federal Office Building 550 Main Street Cincinnati, Ohio 45202 Attachment — A-128 — APPENDIX K United States of America Before the National Labor Relations Board Fifteenth Region Marlene Industries Corporation; Frisco Sportswear, Inc.; M. Hoffman & Company, Inc.; and Landlubber Alabama, Inc. and Case No. 15-CA-4834 International Ladies’ Garment Workers’ Union, AFL-CIO COMPLAINT It having been charged by International Ladies’ Garment Workers’ Union, AFL-CIO (herein called Union), that Marlene Industries Corporation, Frisco Sportswear, Inc., M. Hoffman & Company, Inc., and Landlubber Alabama, Inc. (herein re- spectively called Respondent Marlene, Respondent Frisco, Re- spondent Hoffman, and Respondent Landlubber), have engaged in, and are engaging in, certain unfair labor practices affecting commerce as set forth and defined in the National Labor Rela- tions Act, as amended, 29 U.S.C. Sec. 151, ef seg. (herein called the Act), the General Counsel of the National Labor Re- iations Board (herein called the Board), on behalf of the Board, by the undersigned Regional Director of the Board’s Fifteenth Region, issues this complaint pursuant to Section 10(b) of the Act and Section 102.15 of the Board’s Rules and Regulations, Series 8, as amended, and alleges as follows: — A-129 — | The charge against Respondents was filed by the Union with the undersigned Regional Director on April 19, 1973, a true copy of which was duly served on each Respondent on or about said date. 2 (a) Respondent Marlene, a New York corporation with its principal offices located in New York, New York, is, and at all times material herein has been, engaged, through wholly owned subsidiaries, in the manufacture and distribution of wearing apparel; (b) In the course and conduct of its business operations, Respondent Marlene annually sells and ships products valued in excess of $50,000 directly across state lines to various states of the United States; (c) At all times material herein, Respondent Marlene has been, and is now, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 (a) Respondent Frisco, an Alabama corporation and wholly owned manufacturing subsidiary of Respondent Marlene, had been engaged in the manufacture of wearing apparel at its plant in Frisco City, Alabama, until on or about December 1, 1972; (b) During each of the several years of its operations, Re- spondent Frisco annually purchased and received at its Frisco City, Alabama, location materials and supplies valued in excess of $50,000 directly from points located outside the State of — A-130 — Alabama, and, during this same period, Respondent Frisco an- nually manufactured, sold and shipped wearing apparel valued in excess of $50,000 from its location directly to points located outside the State of Alabama; (c) At all times material herein, Respondent Frisco has been an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 4 At all times material herein, Respondent Marlene and its wholly owned manufacturing subsidiaries, including Respondent Frisco, have been affiliated businesses with common officers, ownership, directors and operators and constitute a single inte- grated business enterprise (hereinafter collectively referred to as Respondent Marlene) with the said directors and operators formulating and administering a common labor policy for all employees. 5 (a) Respondent Hoffman, a corporation licensed to and do- ing business in various states of the United States and with its principal offices located in Boston, Massachusetts, is, and at all times material herein has been, engaged in the manufac- ture and distribution of wearing apparel; (b) In the course and conduct of its business operations, Respondent Hoffman annually sells and ships products valued in excess of $50,000 directly across state lines to various states of the United States; (c) At all times material herein, Respondent Hoffman has been, and is now, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. — A-131 — 6 (a) Respondent Landlubber, a Delaware corporation duly licensed to and doing business in the State of Alabama and a wholly owned manufacturing subsidiary of Respondent Hoff- man, has been engaged in the manufacture of wearing apparel at its plant in Frisco City, Alabama, since on or about De- cember 1, 1972; (b) During the past 12 :nonths, which period is representa- tive of all times material herein, Respondent Landlubber, in the course and conduct of its business operations, purchased and received at its Frisco City, Alabama, location, materials and supplies valued in excess of $50,000 directly from points located outside the State of Alabama and manufactured, sold and shipped wearing apparel! valued in excess of $50,000 from its location directly to points outside the State of Alabama; (c) At all times material herein, Respondent Landlubber has been, and is now, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 7 At all times material herein, Respondent Hoffman and Re- spondent Landlubber have been affiliated businesses with com- mon officers, ownership, directors and operators and constitute a single integrated business enterprise (hereinafter referred to collectively as Respondent Hoffman). with the said directors and operators formulating and administering a common labor policy for all employees. 8 The Union is. and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. — A-132 — 9 (a) On or about December 1, 1972, Respondent Hoffman purchased from Respondent Marlene the physical assets of Respondent Marlene at Frisco City, Alabama, including said factory, land and premises, machinery, equipment and inven- tory, and assumed the liabilities theretofore incurred by Re- spondent Marlene in connection with an outstanding mortgage on said premises; (b) On or about December 1, 1972, all employees (except those employees on strike as described in paragraph 12(b), infra) and supervisory personne! of Respondent Marlene at the Frisco City, Alabama, facility, were transferred to the payroll of Respondent Hoffman as part of Respondent Hoffman’s con- tinuation of substantially the same garment manufacturing op- erations formerly engaged in by Respondent Marlene at Frisco City, Alabama; (c) Since on or about December 1, 1972, Respondent Hoff- man has been, and continues to be, the successor of Respond- ent Marlene in connection with the operation of the Frisco City, Alabama, facility. 10 Since on or about December 1, 1972, the following named persons have occupied the positions set forth opposite their respective names, and have been, and are now, agents of Re- spondent Hoffman, acting on its behalf in connection with the operation of the Frisco City, Alabama, facility, and are super- visors and agents within the meaning of Section 2(11) and 2(13) of the Act: — A-133 — Herbert S. Hoffman — President Julius S. Cohen — Vice President Virgil Boen — General Manager James Byrd — Assistant Plant Manager Dot Phillips — Personnel Manager George Hall — Production Manager Andrew Crawford — Cutting Room Manager Johnny Womach — Shipping Room Manager Jeanne Brooks — Supervisor Florabelle Skinner — Supervisor Ernestine Wright — Supervisor Anagene Norris — Supervisor Louise King — Supervisor 1] Until on or about December 1, 1972, the following named persons occupied the positions set forth opposite their respec- tive names, and had been, and were then, agents of Respondent Marlene, acting on its behalf in connection with the opera- tion of the Frisco City, Alabama, facility, and were supervisors and agents within the meaning of Section 2(11) and 2(13) of the Act: Virgil Boen — General Manager James Byrd — Assistant Plant Manager Dot Phillips — Personnel Manager George Hall — Production Manager Andrew Crawford — Cutting Room Manager Johnny Womack — Shipping Room Manager Jeanne Brooks — Supervisor Florabelle Skinner — Supervisor Ernestine Wright — Supervisor Anagene Norris — Supervisor Louise King — Supervisor am 96 12 (a) On or about June 23, 1970, certain employees of Re- spondent Marlene employed at its wholly owned manufacturing subsidiary located in Decaturville, Tennessee (Decaturville Sportswear Co., Inc.), ceased work concertedly and went on strike; , (b) On or about July 15, 1970, certain employees of Re- spondent Marlene employed at its Frisco City, Alabama, manu- facturing subsidiary (Respondent Frisco), ceased work con- certedly and went on strike; (c) The strike activity described above in subparagraphs (a) and (b) was caused and/or prolonged by the unfair labor prac- tices of Respondent Marlene, which unfair labor practices are the subject of the civil contempt proceedings presently before the United States Court of Appeals for the Sixth Circuit in the matter of National Labor Relations Board v. Decaturville Sportswear Co., Inc., et al., Nos. 18,064; 18,154; 18,249; 18,250; and 18,256; (d) Alternatively, the strike activity described above in sub- paragraphs (a) and (b) was economic in nature. 13 (a) Commencing on or about December 27, 1972, and there- after, on January 11 and 19, and May 7 and 8, 1973, and April 19, 1974, the following employees employed by Respond- ent Marlene at the Frisco City, Alabama, facility, who had en- gaged in the strike referred to in paragraph 12(b), above, made unconditional offers to Respondent Marlene and Respondent Hoffman to return to work: ee — A-135 — Ora D. Austin Judy S. Baggett Phillip H. Baggett Ruth Bailey John B. Blanton Malcolm Blanton James Allen Bodiford Mary Bradley Aileen W. Cork Charles Cork Barbara Dale Octavia Dean Evelyn Hellinger Mary E. Hill Wayne F. Jay Mary A. Lee Mary N. Madison Sandra Matchett Rebecca Montgomery Randy Montgomery Shirley Montgomery Melvin Mose Jencie Lee Penn Mary L. Peoples Frances Phillips Evelyn C. Richardson Lula Riley Helen Lemmon Skinner Steve Smith Lila Strother Willie M. Thornton Eloise Tuberville Gwendolyn Wesley Willie Wesley Madia Womack Jewell Woods (b) Since on or about December 27, 1972, Respondent Hoffman has failed and refused, and is continuing to fail and refuse, to reinstate the employees named in subparagraph (a), above; (c) Since on or about December 27, 1972, Respondent Hoff- man has failed and refused, and continues to fail and refuse, to reinstate the employees named in subparagraph (a), above, for the reason that said employees had joined or assisted the Union, engaged in other protected concerted activities for the purpose of mutual aid or protection and/or participated in the strike referred to in paragraph 12(b), above: (d) By the acts and conduct described in subparagraphs (b) and (c), above, and by each of said acts and conduct, Respond- ent Hoffman has caused the strike referred to in paragraph 12 (b), above, to be prolonged. — A-136 — 14 By the acts and conduct described in paragraph 13(b), (c) and (d), above, and by each of said acts and conduct, Respond- ent Marlene and Respondent Hoffman have engaged in, and are engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act, for which Respondent Marlene and Respondent Hoffman are jointly and severally liable. You Are Hereby Notified that, pursuant to Sections 102.20 and 102.21 of the Board’s Rules and Regulations, the Respond- ents shall file with the undersigned Regional Director, acting in this matter as agent of the National Labor Relations Board, an original and 4 copies of an answer to the above complaint within 10 days from the service thereof, and that unless they do so, all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board. Im- mediately upon the filing of its answer, the Respondents shall serve a copy thereof on each of the other parties. Dated at New Orleans, Louisiana, this 4th day of June, 1974. /s/ CHARLES M. PASCHAL, JR. Regional Director, Region 15 National Labor Relations Board Suite 2700 Plaza Tower 1001 Howard Avenue New Orleans, Louisiana 70113 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1221%3A1. Public record. Not legal advice.