Petition — S. E. Nichols of Ohio, Inc. v. National Labor Relations Board

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No. JUL ]4 1998:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

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S. E. NICHOLS OF OHIO, INC.,

Petitioner,

—vVvs,—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Sa

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

LEONARD W. WAGMAN

GOLENBOCK and BARELL

Attorneys for Petitioner

645 Fifth Avenue

New York, New York 10022

(212) 935-9800

RoBeERT S. GOODMAN

Timothy P. DILLON

Of Counsel

i

Questions Presented

1. Where a court of appeals held that it must uphold the

NLRB’s findings of fact concerning a constructive discharge of

an employee “as long as those findings are supported by sub-

stantial evidence in the record as a whole” but gave no indication

whatsoever that it had taken into account the evidence that de-

tracted from the NLRB’s position or the evidence from which

conflicting inferences could be drawn, did the court of appeals

fulfill its obligation to view the record in its entirety “including

the body of evidence opposed to the Board’s view” as required

by this Court’s decision in Universal Camera Corp. v. NLRB,

340 U.S. 474, 488-489 (1951)?

2. Whether, as a matter of law, a discharged employee used

“reasonable efforts” to obtain substantially equivalent interim

employment when it is undisputed that the employee during an

eight-year backpay period (i) applied for only one job through

the local newspaper want ads that contained numerous suitable

employment opportunities; (ii) failed to use a private employ-

ment agency and did not apply for a single job through the state

employment bureau; (iii) succeeded in obtaining only one em-

ployment which she quit after a brief six month period; and (iv)

from 1971 through 1974 searched for employment on approxi-

mately 10% of the business days in each year and from 1974

through 1979 searched for employment on approximately one

day per month?

3. Is this Court’s review necessary to protect petitioner’s due

process right to a fair hearing where an administrative law judge

refused to admit into the hearing record relevant evidence, in-

cluding admissions against interest made by the charging party

and the Board’s agents and where the NLRB and the court of

appeals refused to address petitioner’s due process contentions?

TABLE OF CONTENTS

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TABLE OF CITATIONS

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..

Barkers East Main Corporation, 136 NLRB 494 (1962)

ete cess sccccescccce

Donnelly Garment Co. Vv. NLRB, 123 F.2d 215, 224 (8th

Cir. 1941); on remand 50 NLRB 241, enf. den. 151

F.2d 854 (8th Cir. 1945); rev'd on other grounds, 330

30

26

13

U.S. 219 (1947); on remand 161 F.2d 940 ...... 27, 28

Fashion Fair, Inc., 163 NLRB No, 22, 1967 CCH NLRB

GGUS GEUN ey See basceccesccnvess

Flite Chief, Inc., 246 NLRB 55 (1979); (enforced in per-

tinent part, 640 F.2d 989 (9th Cir. 1981) ........ 2

ili

4,25

iv

Ford Motor Co. v. EEOC, US. , 102 §.Ct. 3057

CURED cis od nenshs abeues bed waaeeees . ae

Great Lakes Screw Corporation v. NLRB, 409 F.2d 375,

ce ee, Le | ee ee ree 29, 30

Montgomery Ward & Co. v. NLRB, 377 F.2d 452 (6th

CA SOT aco ade ha Sen Rae aa am acne ee hinge 10

Muller v. U.S. Steel Corp., 509 F.2d 923, 929 (10th Cir.),

cant. Gated, 429 US. SAS CASTS) v.0:00 0 6 h00 b 8 aw ss 10

McCann Steel Co. v. NLRB, 570 F.2d 652 (6th Cir. 1978) 23

NLRB vy. Brennan's, Inc., 366 F.2d 560 (5th Cir.), modi-

fied on other grounds, 368 F.2d 1004 (Sth Cir. 1966) 19

NLRB Vv. Burns, 207 F.2d 434 (8th Cir, 1953) ........ 28

NLRB Vv. Capitol Fish Co., 294 F.2d 868, 875 (Sth Cir.

BOOED socceceneSseeee tek ce ee iee ina eee eens 29

NLRB vy. Mercy Peninsula Ambulance Service, 589 F.2d

oP, R= Ae 7, 3 pee eemry ey teen eee y eh

NLRB Vv. Seven-Up Co., 344 U.S. 344 (1953) ......... 22

NLRB vy. Skinner & Kennedy, 113 F.2d 667, 671 (8th Cir.

SONG): hinds avak casa cncaeneeenreis enero 13

NLRB V. Southern Silk Mills, Inc., 242 F.2d 697, cert. de-

whed,: Dora Ws BEE COE) kvc ds eee dain eas: 22, 23

NLRB vy. Tennessee Packers, Inc., Frosty Morn Division,

aoe Fie Bee Ae OU, TR vs coke cesewdece. 19

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) .... 22

Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th

CAE. TORR i dic ch 6 aaad cata a eee sues eee ee 21,22

S. E. Nichols of Ohio, Inc. v. NLRB, 704 F.2d 921 (6th

Ci. BOD eh ncninnceckaoseale be ehawevestae ake l

Sangster V. United Air Lines, Inc., 633 F.2d 864 (9th Cir.

SUDO) cc ca cunexwanteaceeavbesereerreeces 26

Vv

Universal Camera Corporation v. NLRB, 340 U.S. 474

COOWED Cad ee seca rene cne esse i, 7, 8, 9, 10, 19, 20, 21

Wheeler v. NLRB, 314 F.2d 260 (D.C. Cir. 1963) ...... 29

Young Vv. Southwestern Savings and Loan Association, 509

Pam 800, 206 (5 Cit: 1975). scccccccsssssses 10

Statutes:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

<>

-

S. E. NICHOLS OF OnH10, INC.,

Petitioner,

—vs.—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioner S.E. Nichols of Ohio, Inc., (“Nichols”) respect-

fully prays that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the Sixth Circuit

entered in this proceeding on April 15, 1983 enforcing an order

of the National Labor Relations Board (“NLRB” or the

“Board”) entered against Nichols on September 18, 1981.

Opinions Below

The opinion of the Court of Appeals is reported at 704 F.2d

921 (6th Cir. 1983), and appears in the appendix hereto

(“App.”) at la. The opinion of the NLRB is reported at 258

NLRB No. 2, 1981 and appears at App. 8a. That opinion

affirmed the decision of an Administrative Law Judge (the

“ALJ”) which appears at App. 16a.

Jurisdiction

The judgment of the Court of Appeals was entered on April

15, 1983. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

2

Statutes Involved

Section 10(c) of the National Labor Relations Act, in per-

tinent part, provides:

If upon the preponderance of the testimony taken the

Board shall be of the opinion that any person named in the

complaint has engaged in or is engaging in any such unfair

labor practice, then the Board shall state its findings of fact

and shall issue and cause to be served on such person an

order requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative action

including reinstatement of employees with or without back

pay, as will effectuate the policies of this subchapter;

Provided, That where an order directs reinstatement of an

employee, back pay may be required of the employer or

labor organization, as the case may be, responsible for the

discrimination suffered by him... .

29 U.S.C. § 160(c).

Section 10(e) of the National Labor Relations Act, in per-

tinent part, provides:

The Board shall have power to petition any court of

appeals of the United States, . . . for the enforcement

of such order and for appropriate temporary relief or

restraining order, and shall file in the court the record

in the proceedings, as provided in section 2112 of Title 28.

. . . The findings of the Board with respect to questions

of fact if supported by substantial evidence on the record

considered as a whole shall be conclusive. If either party

shall apply to the court for leave to adduce additional

evidence and shall show to the satisfaction of the court

that such additional evidence is material and that there were

reasonable grounds for the failure to adduce such evidence

in the hearing before the Board, its member, agent, or

3

agency, the court may order such additional evidence to be

taken before the Board, its member, agent, or agency, and

to be made a part of the record. The Board may modify

its findings as to the facts, or make new findings by reason

of additional evidence so taken and filed, and it shall file

such modified or new findings, which findings with respect

to questions of fact if supported by substantial evidence on

the record considered as a whole shall be conclusive, and

shall file its recommendations, if any, for the modification

or setting aside of its original order... .

29 U.S.C. §160(e).

Statement of the Case

This petition brings to this Court for review a consolidated

proceeding launched by respondent NLRB against petitioner

Nichols. The consolidated proceedings resulted in the issuance

of the Board’s supplemental order and decision dated September

18, 1981 (App. 8a).

The Board applied to the United States Court of Appeals for

the Sixth Circuit for enforcement of the Board’s order. Nichols

answered and cross-petitioned. By decision filed April 15, 1983

the Court of Appeals granted enforcement (App. 1a).

(1) The Consolidated Proceedings

The Unfair Labor Practice Proceeding

Nichols operates a self-service, retail discount department store

with approximately 120,000 square feet of selling space, in New

Philadelphia, Ohio, On April 19, 1979 Nichols’ employee Lena

Barnhart (“Barnhart”) filed an unfair labor practice charge (Case

No. 8-CA-12772), claiming only that she had been construc-

tively discharged following her February, 1979, reemployment.

One month later she withdrew this charge.

4

On or about June 12, 1979—after the Board instituted the

supplementary back pay proceeding hereinafter described—Barn-

hart once again filed an unfair labor practice charge, which was

identical to the one she had filed in April and withdrawn. This

charge was assigned Case No. 8-CA-12909.

The complaint that the Board issued four months later on

October 15, 1979, based upon the latter charge, alleged that

Nichols had refused to reinstate Barnhart to her former position

because of her alleged involvement in protected activities and

because she had given testimony in prior Board proceedings.*’

In addition, it alleged that, on February 17, 1979, Nichols im-

properly reinstated Barnhart and that, on or about March 19,

1979, she was constructively discharged. As above noted, in the

charge that she had filed Barnhart only asserted a claim for con-

structive discharge and did not assert any claim that she had

been improperly reinstated.

On October 25, 1979, Nichols filed its answer containing sev-

eral affirmative defenses, including the following: (a) that Barn-

hart was properly and fully reinstated on February 27, 1979;

(b) that Barnhart quit Nichols’ employ on March 19, 1979 with-

out justification; (c) that Barnhart was engaged in a scheme to

obtain monies from Nichols without performing any work; and

(d) that the Board by its conduct and procedures, is biased

against Nichols and has deprived Nichols of its rights to due

process, to a fair hearing, and to equal protection of the laws.

The Back Pay Proceeding

(NLRB Case Nos. 8-CA-6414, 7858, 9160)

On April 19, 1979, the Board’s Regional Director had issued

back pay specifications which contained a notice of hearing for

1*There had been no union activity at the store for years—the Record

is barren of any attempt at the hearing to show that Barnhart's quit had

any relationship to “protected activities” or prior testimony. For how long

is the Board to be permitted to rely upon such unsupported, unprovable

assertions. Neither the Union nor the employees raised these contentions

as to the 1979 reinstatement.

5

August 7, 1979. In this proceeding the Board sought back pay

(i) for Carolyn Moore (“Moore”) in the sum of $24,846.36

plus interest at 6% for an alleged back pay period of April 1,

1971 to February 27, 1979; and (ii) for Barnhart $34,121.47

plus interest at 6% for Barnhart for the same alleged back pay

period. Nichols answered on June 25, 1979. The Regional Direc-

tor filed an amendment to the back pay specifications on October

5, 1979, the principal purpose of which was to remove the Feb-

ruary 27, 1979 limit on back pay for Barnhart. The Board as-

serted that, as to her back pay “continues unabated to the present

because no proper offer of reinstatement has been made to her.”

The back pay hearing was rescheduled for November 8, 1979.

On October 17, 1979, Nichols served and filed a combined

answer to the back pay specification and to the amendment

thereto.

Consolidation of the Proceedings

On October 15, 1979—less than three weeks before the back

pay hearing, more than four months after Barnhart filed her

new charge, and over two months since the NLRB investigated

the matter and took statements from management—the Regional

Director issued an order consolidating the new unfair labor prac-

tice proceeding with the pending back pay proceedings for “pur-

poses of hearing, ruling and decision. . ..” In this same document,

the Board set forth for the first time, the above mentioned com-

plaint allegedly based on Barnhart’s June 12, 1979 charge, and,

simultaneously, scheduled a hearing on the complaint for No-

vember 5, 1979—the date then set for the back pay hearing.

Petitioner moved to sever the proceedings and requested an

order inter alia directing that no hearing be held in Case 8-CA-

12909 until it is severed from the back pay proceeding, and

that the hearing and decision in Case 8-CA-12909 be con-

ducted and rendered separate and apart from the hearing in the

back pay proceeding. As set forth in the motion to sever, and

6

as hereinafter shown, Nichols was severely prejudiced by such

consolidation. The motion to sever was denied by the ALJ at

the start of the hearings.

By letter dated November 15, 1979 petitioner requested

General Counsel's approval for the service upon the Regional

Director of the Board's Region 8 of subpoenas ad testificandum

and duces tecum, to be returnable at the hearing. By telegram

dated November 27, 1979 the request was denied. Petitioner

has persisted in its objection to this ruling and the procedure

pursuant to which it was issued, all of which denied it the opportu-

nity to obtain documentary evidence and testimony relevant to

the issues raised by the defenses in the back pay and unfair labor

practice proceedings and further denied petitioner its Constitu-

tional due process right to a fair hearing.

The Board’s Decision and the Court of Appeals Affirmance

Without critically or analytically addressing any aspect of the

ALJ's decision the Board broad brushed the matter, rubber

stamped that decision and stated merely that it “has decided to

affirm the rulings, findings and conclusions of the Administrative

Law Judge .. .” App. 9a). The Court of Appeals in deciding to

enforce the Board's order did not fairly search the record be-

cause such search could not yield the conclusion that. . . “The

administrative record offers ample support for the findings of

fact and credibility determinations which underlie the conclusion

that Nichols ‘constructively’ discharged Barnhart in March of

1979,”

Reasons for Granting the Writ

A. The decision of the Court of Appeals fails to follow this

Court’s directive contained in Universal Camera Corporation

v. NLRB.

The Board and the Court below did not view the record of

the hearing as a whole and did not take into account consider-

able evidence including Barnhart’s own testimony that fairly

-

detracted from and fully contradicted the Board’s evidence and

the ALJ's findings.

This Court (Mr, Justice Frankfurter) in Universal Camera

Corporation Vv. N.L.R.B., 340 U.S. 474 (1951), in pertinent

part wrote as follows;

Whether or not it was ever permissible for courts to de-

termine the substantiality of evidence supporting a Labor

Board decision merely on the basis of evidence which in

and of itself justified it, without taking into account con-

tradictory evidence or evidence from which conflicting in-

ferences could be drawn, the new legislation definitely pre-

cludes such a theory of review and bars its practice. The

substantiality of evidence must take into account whatever

in the record fairly detracts from its weight. This is clearly

the significance of the requirement in both statutes that

courts consider the whole record. Committee reports and

the adoption in the Administrative Procedure Act of the

minority views of the Attorney General’s Committee demon-

strate that to enjoin such a duty on the reviewing court was

one of the important purposes of the movement which

eventuated in that enactment, (at 487-488)

We conclude, therefore, that the Administrative Proce-

dure Act and the Taft-Hartley Act direct that courts must

now assume more responsibility for the reasonableness and

fairness of Labor Board decisions than some courts have

shown in the past. Reviewing courts must be influenced by

a feeling that they are not to abdicate the conventional judi-

cial function, Congress has imposed on them responsibility

for assuring that the Board keeps within reasonable grounds,

That responsibility is not less real because it is limited to

enforcing the requirement that evidence appear substantial

when viewed, on the record as a whole, by courts invested

with the authority and enjoying the prestige of the Courts

8

of Appeals. The Board's findings are entitled to respect; but

they must nonetheless be set aside when the record before

a Court of Appeals clearly precludes the Board's decision

from being justified by a fair estimate of the worth of the

testimony of witnesses or its informed judgment on matter

within its special competence or both (340 U.S, 490).

The Sixth Circuit cited Universal Camera, 340 U.S. at 493,

for the proposition that “the Court may not substitute its judg-

ment for that of the Board even if it might have reached different

conclusions in a hearing de novo.” We respectfully submit that

p. 493 of 340 U.S. does not contain support for that proposition.

Indeed, at 340 U.S. 488-489, Mr. Justice Frankfurter wrote as

follows;

To be sure, the requirement for canvassing ‘the whole

record’ in order to ascertain substantiality does not furnish

a calculus of value by which a reviewing court can assess

the evidence. Nor was it intended to negative the function

of the Labor Board as one of those agencies presumably

eouipped or informed by experience to deal with a special-

ized field of knowledge, whose findings within that field

carry the authority of an expertness which courts do not

possess and therefore must respect. Nor does it mean that

even as to matters not requiring expertise a court may dis-

place the Board’s choice between two fairly conflicting

views, even though the court would justifiably have made a

different choice had the matter been before it de novo, Con-

gress has merely made it clear that a reviewing court is not

barred from setting aside a Board decision when it cannot

conscientiously find the evidence supporting that decision

is substantial, when viewed in the light that the record in

its entirety furnishes, including the body of evidence opposed

to the Board's view.

As demonstrated hereinafter, by a summary of the salient facts

contained in the administrative record, the Sixth Circuit in affirm-

9

ing the Board grossly misapplied or misapprehended the substan-

tial evidence standard of review. That standard as enunciated by

this Court in Universal Camera prohibits a Court of Appeals

from affirming a decision of the NLRB without examining the

entire administrative record including all evidence contrary to

the Board’s position or evidence from which inferences could be

drawn conflicting with the Board’s findings. The Sixth Circuit

and the Board in the present case ignored the significant evidence

introduced by the employer which was diametrically opposed to

the Board's proof and contentions. Thus, the Court of Appeals

should have reviewed the record in its entirety including the evi-

dence opposed to the Board’s view, to determine whether sub-

stantial evidence supports the Board’s decision. In the case at bar

the ALJ, the Board and the Court below totally ignored persua-

sive evidence opposed to the Board’s view.

As shown hereinafter, another Circuit has applied the Universal

Camera standard of review in accordance with its clear terms and

searched the entire record, including the employer's testimony

that the ALJ either ignored, failed to credit or misconstrued.

It is appropriate for this Court, on the present record, to grant

this petition and reaffirm the precept of Universal Camera. As

stated in Universal Camera where the substantial evidence

standard of review “appears to have been misapprehended or

grossly misapplied,” this Court will intervene. This is just such a

case,

Significantly, the Court of Appeals at the outset of its decision

makes two crucial findings that demonstrate both the failure be-

low to view the record as a whole and the prejudice from which

petitioner suffered throughout the prior proceedings. The Court

of Appeals found that upon her reinstatement in February 1979

Barnhart “was instructed to ‘float’ between departments on an

‘as needed’ basis and that on March 19, 1979 Barnhart received

conflicting job assignments from different supervisors.” The Sixth

Circuit then proceeded to tie the knot by contending—without

record support—that the alleged conflicting assignments “cul-

10

minated in a confrontation with the store manager, who repri-

manded Barnhart publicly and in the presence of other Nichols’

personnel. Barnhart clocked out and did not return to work. An

unfair labor practice charge alleging ‘constructive discharge’ was

filed on her behalf” (App. 3a). It is inconceivable that a fair

reading of the entire record could produce these conclusions.

A constructive discharge occurs when “an employer deliberately

renders the employee's working conditions intolerable and thus

forces him to quit his job,” Muller v. U.S. Steel Corp., 509 F.2d

923, 929 (10th Cir. ), cert. denied, 423 U.S. 825 (1975); Young

Vv. Southwestern Savings and Loan Association, 509 F.2d 140,

144 (Sth Cir. 1975); Montgomery Ward & Co. v. NLRB, 377

F.2d 452 (6th Cir. 1967). If the Sixth Circuit had followed

Universal Camera and reviewed the entire record as a whole, it

could not have found that Barnhart was constructively discharged.

Barnhart’s 1979 Reinstatement and Quit

When Barnhart was reemployed on February 27, 1979, the

store manager told her that he wanted to start out anew and to

forget the past; that he had an open door policy and that if she

had any problems or questions, she should feel free to come to

him; he explained that he considered the past to be water under

the bridge, that he was going to let bygones be bygones and get

a new start. He stated that all he expected was a fair day’s work

for a fair day’s pay.**

Barnhart was assigned a job as a clerk in the lamp department.

Though the ALJ employed every artifice to make it seem other-

wise—(and his decision and approach has been rubber stamped

to this point)—a truly objective view of the facts demonstrates

beyond a doubt that this assignment was the substantial equiva-

2*The manager held this discussion because of the prior unfair labor

practice proceedings and Nichols desired to avoid a repetition of such

proceedings.

11

lent of her former position. When the store was busy she would

be asked to help out at the front registers, Barnhart admitted

there were three or four other girls among a night crew of twenty

to twenty-four employees who were moved to the front registers

when needed. Barnhart testified that when she previously worked

in the store, it was policy for an employee to help out in other

departments and that she did so. It was a distortion of the record

for the Court of Appeals to describe Barnhart’s assignment as a

“floater.” She was treated the same as other clerks and would

have been treated no differently if she had never left Nichols em-

ploy. The charge that she filed did not contain any assertion

concerning her job assignment.

An unbiased view of the record as a whole belies the foregoing

findings of the Court of Appeals. As briefly described hereinafter

the overwhelming evidence contradicts the description of Barn-

hart’s job as one of a “floater.” Furthermore, Barnhart described

herself as fully satisfied with the work she had been assigned and

her quit was unrelated to any alleged conflicting assignment.

In the charge she filed Barnhart only alleged that on or about

March 19, 1979 she was constructively discharged because of

her union membership and activities and because she gave testi-

mony in prior unfair labor practice cases.* As noted above, the

complaint which was issued on October 15, 1979, in addition to

alleging a constructive discharge, alleged, for the first time, that

on February 27, 1979 Nichols had refused to properly reinstate

Barnhart. The complaint failed to state in what respect the rein-

statement was improper. During the hearing it became crystal

clear why no such detail could have been pleaded. There were

no facts to support the pro forma allegation of improper rein-

statement; Barnhart had not complained about the wages, hours

or clerks position to which she had been reinstated. Furthermore,

the record demonstrates and the ALJ agreed that all employees,

other than managers, were essentially clerks performing the same

duties (App. 24a).

*See footnote 1 supra.

12

Barnhart had no problems working in the lamp department

and testified that she was not unhappy with anything she was

asked to do and that she was pleased. She was assigned duties by

the lamp department head, Francis Kee (“Kee”). Barnhart fur-

ther testified that not only was she satisfied with the work but

that up to March 12th she was satisfied with everything that hap-

pened in the store.

On the latter date Barnhart was asked by assistant manager

Dill to help put the housewares department in shape, because it

had become disorganized. The record evidence—without contra-

diction—established that it was common practice and policy to

temporarily shift employees from one department to another to

help straighten up or shelve merchandise. Since the store had

about 20 to 24 employees at night compared to approximately

50 during the day, the manager could not have one employee

in every department at night; therefore, employees were asked to

help out wherever they were needed. Even office employees were

used to help straighten out a department or shelve merchandise.

Hedy Fondriest, a night employee in the office, testified to the

numerous times she had been used in almost every department to

give assistance where needed.** There was therefore nothing un-

usual about using Barnhart to help straighten out the housewares

department.

Accordingly, despite the ALJ’s pointed failure to face the

record facts and his evasive attempt to portray as “unique” Barn-

hart’s brief transfer to the housewares department, it is clear that

such temporary transfers were commonplace and the procedure

was well known to the employees. Any available employee would

have been given that assignment. Approximately two weeks be-

fore, four or five other night people helped out in that department.

Barnhart specifically testified that she didn’t mind going to

Straighten out housewares because “it was a challenge.” She

®*Significantly, the decision of the Administrative Law Judge totally

ignored the testimony of fellow employee Fondriest and ignored as well

other conclusive evidence that supports petitioner's position.

13

wasn't assigned to housewares for any particular period, just as

long as it took to help get it in shape. When she previously

worked for Nichols she had been a clerk, not permanently

assigned to a register. When reinstated in 1979 she was given

the same job and was subject to the same work conditions, which

included helping out in other departments. She therefore had no

cause for complaint and did not complain about her assignment.

On this subject, the Court below in disregard of Barnhart’s

own testimony and without record support attempted to equate

Barnhart’s 1979 reemployment to the “scrub” duty which she

had been asked to do upon her prior reinstatement. This treat-

ment by the Sixth Circuit and the Board was totally unfounded

and demonstrates the prejudice that petitioner has suffered from

the consolidation of the proceedings and from the Board and

the AILJ desperately misconstruing and misdescribing the facts

in order to vitiate petitioner’s good faith effort to reinstate this

employee in February 1979. The record simply does not sup-

port any contention that Barnhart’s 1979 duties were “onerous”

or “unpleasant” or that she quit for that reason.

The record does not support the ALJ's finding that Nichols

made no effort to restore Barnhart to her former position as

clerk of the men’s wear department and made no explanation

for not doing so (App. 34a). The record evidence and case law

precedent overwhelmingly contradicts the ALJ's premise that only

reinstatement to the men’s wear department was permissible. An

employer is not required to reinstate an employee to a job re-

quiring the performance of exactly the same duties previously

performed. NLRB vy. Skinner Kennedy, 113 F.2d 667, 671

(8th Cir. 1940); Barkers East Main Corporation, 136 NLRB

494, (1962) CCH NLRB 11,056; Barnhart was reinstated in

good faith to virtually the identical position she formerly held.

She was asked to help out in another department only because

of valid business reasons applicable to all sales clerks at the time.

In no way was Barnhart singled out for different treatment than

she would have received if she had be ~n continuously employed.

14

The Facts Relating to the Constructive Discharge Claim

The Board and the Court below uncritically rubber stamped

the ALJ’s finding that Petitioner's conduct from February 27

to March 19, 1979, culminating in the events of March 19, con-

stituted a constructive discharge of Barnhart. The Board and the

Court below refused to look at the record as a whole, ignored

the testimony of Barnhart’s fellow employees and other witnesses,

just as the ALJ had ignored such testimony, and adopted every

misinterpretation or erroneous assumption made by the ALJ.

The record facts which were totally ignored below concerning

Barnhart’s quit belie any constructive discharge claims. The sim-

ple facts leading to her walking off the job are as follows:

While Barnhart was helping reorganize the housewares de-

partment, a large shipment of merchandise was received which

required additional people to check and shelve goods. People

on the day shift were sent to help out, including Paula Powers.

Barnhart told Powers to “stock it” herself with respect to the

merchandise which Powers had checked in and which she asked

Barnhart to help put on the shelves. Barnhart’s conduct to-

wards Powers was a rude, unreasonable response to a non-

provocative situation. Here again the ALJ totally misconstrued

the evidence (App. 30a). Robert Hathorn, then an assistant man-

ager, testified that Barnhart’s response to Powers was inappro-

priate. In any event, based upon her one conversation with fel-

low employee Powers, Barnhart asked Hathorn about conspira-

cies against her and complained about being bossed around. She

later told Hathorn that “nobody is telling me what to do.”*

Barnhart’s impudent statement to an assistant manager, that

nobody can tell her what to do, and her lack of cooperation with

a fellow employee, make it clear that Barnhart was attempting

to provoke an incident and that she had a “chip on her shoul-

4*There is no basis whatever for ignoring Barnhart’s provocative con-

duct in this regard. In any event, when she quit some days later, she

made no mention of this; her quitting was prompted solely by her March

19th conversation with the store manager about lateness and gum chewing.

15

der.” The events of March 15th do not represent a problem be-

tween Barnhart and management since her dispute was with

Powers, a fellow employee who was not a part of management.

On Friday, March 16th, Barnhart was off; on March 17th she

worked in housewares and on Sunday March 18th she worked

at a register all day because the head cashier was sick. It is clear

that there were no problems between Barnhart and management

on those days.

On March 19, 1979, Kee (head of the lamp department),

after obtaining the store manager’s approval, told Barnhart she

was to return to the lamp department. The ALJ—having com-

pletely ignored the record evidence detrimental to Barnhart

found “it hard to believe” Kee’s testimony (App. 31a). Petitioner

finds it hard to believe how the ALJ could view the record with

blinders—seeing only what he chose to see and create a credi-

bility issue where none existed. The record is clear that Barn-

hart had been assigned to the lamp department and that Kee,

head of the department, regularly gave Barnhart instructions.

There had been no difficulty between them; once again the preju-

dice of the ALJ shows through.

Contrary to Barnhart’s assertion—raised for the first time at

the hearing—she had not been promised permanent assignment

to housewares. Assistant manager Dill did not ask Barnhart to

remain in housewares on a permanent basis. The belated asser-

tion of a promised permanent assignment to housewares is in-

credible in view of the uncontrovertible testimony that there

had been no permanent night person in housewares for sev-

eral years and in view of the fact that this assertion was not

raised in any manner until the hearing.

Here again with no basis in the record, the ALJ sought to

make this a credibility issue and “credit{[s] Barnhart’s account

that she was promised the housewares job” (App. 31a). This find-

ing is incomprehensible, contrary to the overwhelming weight of

the evidence and must be rejected for the simple reason—if for

16

no other—that Barnhart knew Dill could not give her a job with-

out the store manager’s approval. The ALJ in seeking a founda-

tion for his finding of constructive discharge sought to create a

factual pretext to convert Barnhart’s eventual walk-out into an

improper discharge. When she walked off the job, she did not

quit because of her job assignment.

On March 19th, after Barnhart returned to work in the lamp

department and had finished what she had been asked to do,

she asked assistant manager Caravati for more work. He asked

her to go with him to the stockroom and put lamps in nu-

merical order so that they could be easily obtained from in-

ventory. On their way they were met by store manager Ricer. He

had been advised by the payroll clerk that Barnhart had taken

breaks in excess of the established 10 minute period.

When Ricer met Barnhart and Caravati, he simply ad-

vised Barnhart that she had been taking too long on her

breaks and that she was to take only ten minute breaks. He

noticed that she was chewing gum, in violation of store policy

and told her to take the gum out of her mouth. Barnhart re-

sponded by saying “yes sir,” and walked back toward the lamp

department. About 25 minutes later Barnhart left her work,

suddenly came to the office window after punching out, and

advised Ricer that she was going home. He asked her if

she was sick; Barnhart said she didn’t like to be spoken to

like a dog. Ricer reminded her that all he had done was to

mention that she should take ten minute breaks and not chew

gum on the sales floor. Barnhart said she was going home,

Ricer said good night and Barnhart responded by saying it was

not good night but good-bye and that her lawyer would be in

touch. This conversation was overheard clearly by assistant man-

agers Caravati and Hathorn and by employee Fondriest.*°* Barn-

hart then left the store.

5*The Administrative Law Judge completely ignored Ms. Fondreist's

testimony.

17

Barnhart’s quitting did not relate to her reinstatement or job

assignment; her quit was prompted by her reaction to Ricer’s tell-

ing her to take ten minute breaks and not chew gum on the sales

floor. There is no question from the time cards that Barnhart

had taken breaks in excess of ten minutes, nor did Barnhart dis-

pute this. When Ricer spoke to her there was no doubt in her

mind that she had taken such breaks. The testimony showed that

other employees had been disciplined and even fired for continued

infractions of break, lunch or reporting time requirements. The

ALJ, the Board and the Court below ignored this evidence and

testimony of other employees that Ricer, as a common practice,

talked to employees on the floor about chewing gum and about

lateness. (Employees, Kee and Fondreist, testified that they had

been spoken to by Ricer on numerous occasions about gum

chewing. )

Furthermore, the ALJ's description of Ricer’s conversation

with Barnhart concerning “two matters of personal conduct” is

an invention of the ALJ (App. 35a). It must be emphasized that

Barnhart was not given a warning; no adverse consequences or

disciplinary action were threatened as a result of her time in-

fractions. She was simply reminded of the store rules concerning

breaks and gum chewing and asked to adhere to them. That cer-

tainly does not constitute cause for a quit. Simply talking to her

about this in front of another supervisor was not contrary to

policy. Other employees were not present; there was no need

to hold such brief, informal discussion in the office. Nor is it

relevant that Ricer “had not previously mentioned” these matters

to Barnhart.*® Ricer had not publicly reprimanded Barnhart for

taking a 20 minute break as the ALJ would make it appear (App.

35-36a) but only spoke to her in the presence of an assistant man-

ager. Barnhart maneuvered herself into a position to claim con-

structive discharge and simply chose to walk out because she really

®* Again, the ALJ's mention of Ricer's concession on cross-examination

that he never disciplined employees for those infractions is a non-sequitur

since Ricer was not disciplining Barnhart. The ALJ's entire approach

here reveals the depth of his bias against respondent.

18

didn’t want to work.*’ Barnhart’s history of inability to obtain

employment during the prior eight years, casts some doubt on her

desire to work.

The ALJ's version of the events of March 19, is pure fic-

tion—barren of record support. When viewed against the entire

record, the Board’s and the Court of Appeals’ rubber stamping

of these unsupported findings—without evaluation of the con-

trary evidence or of the evidence from which conflicting infer-

ences could be drawn—is sufficient to warrant review by this

Court. Thus, the following incorrect findings of the ALJ, among

others, without record support or contrary to the record evidence,

have been perpetuated:

(a) In the third week of her employment changes began with

the assignment of Barnhart to a heavy clean-up job...

(App. 34a).

(b) On March 17, 1979 Assistant Manager Dill offered, and

Barnhart accepted, a regular asignment as clerk of the house-

wares department (App. 35a).

(c) Manager Ricer “yanked” Barnhart back to the lamps de-

partment for additional clean up work (App. 35a).

(d) He did this “in the humiliating fashion of having a fel-

low employee rather than a supervisor give these instructions

to Barnhart . . . in effect letting Barnhart know that she was just

a utility girl assisting other employees” (App. 35a).

The ALJ misconstrued and misdescribed the evidence, in order

to justify the conclusion he sought to reach. The Board and the

Court below have perpetuated these improper findings by failing

to view the entire record and by ignoring among other facts evi-

dence contrary to the Board's view including the evidence that

store personnel went out of their way to try and avoid prob-

lems with her. When Barnhart advised assistant manager Hathorn

7™*A constructive discharge occurs where an employer makes an em-

ployee’s conditions of employment intolerable. Fashion Fair, Inc., 163

NLRB No. 22, 1967 CCH NLRB £21,129 (1967). See p. 10 supra.

19

on March 15th that nobody could tell her what to do, Hathorn

could have sent Barnhart home for insubordination—instead, he

just walked away. Employee Fondriest testified that “everybody

treated her [Barnhart] really nice.”

In view of all the foregoing, it is quite apparent that Barn-

hart purposefully walked off the job on March 19th without any

justification whatsoever, From her own statement at the time, her

quit related solely to the tone in which she perceived the store

manager to have spoken to her earlier that evening. Respondent

did not constructively discharge Barnhart. Her working condi-

tions were by no means made uncomfortable or intolerable. She

was treated the same as other employees in every respect. Barn-

hart could not and did not complain that her transfer to house-

wares and return to the lamp department constituted a con-

structive discharge, since others were given the same assignment

and it was done pursuant to a justifiable, reasonable management

need and policy.** A true review of the full record facts will

demonstrate that Barnhart was properly reinstated on February

27, 1979 and that she was not thereafter constructively dis-

charged.

Standard Of Review

In reviewing the ALJ's decision, the Board may accept the

ALJ's findings only when they are supported by substantial evi-

dence based on the record as a whole. Universal Camera Corp.

v. NLRB, 340 U.S. 474, 493 (1951); NLRB v. Tennessee

Packers Inc., Frosty Morn Division, 339 F.2d 203, 204 (6th

Cir. 1964). The record as a whole includes the body of evidence

presented by the employer. Universal Camera Corp. v. NLRB,

supra, 340 U.S. at 488. At bar, the Board refused to objectively

consider the substantial evidence presented by Nichols and the

**When such moves are the result of justifiable business reasons, they

do not provide the basis for an alleged constructive discharge. NLRB v.

Brennan's, inc., 366 F.2d 560 (Sth Cir.), modified on other grounds,

368 F.2d 1004 (Sth Cir. 1966).

20

uncontroverted testimony— including that of Barnhart herself—

which clearly demonstrated that she was reinstated to substan-

tially the same position she formerly held. Thus, the Board failed

to apply the proper standard of review and its findings should

have been set aside.

The Court of Appeals was not bound to accept the Board’s

findings where as here the Board totally ignored the compelling

evidence presented by respondent below:

[A] reviewing court is not barred from setting aside a Board

decision when it cannot conscientiously find that the evi-

dence supporting that decision is substantial, when viewed

in the light that the record in its entirety furnishes, includ-

ing the body of evidence opposed to the Board's view. (Em-

phasis added).

Universal Camera Corp. v. NLRB, supra, 340 U.S. 488.

The Board refused to look at the whole record in adopting

the ALJ's finding that Nichols constructively discharged Barnhart,

Now the Court below, without examination, has accepted each

and every unsupported assumption of the ALJ on this subject,

and ignored the evidence which clearly demonstrated that Barn-

hart walked out of the store on March 19, 1979, without any

justification whatsoever, simply because of her alleged perception

of the tone in which the manager had spoken to her.

The ALJ's decision and the Board's decision rely primarily

upon a rehash—incorrect in many key aspects—of the prior dis-

putes between the parties relating to past efforts to reinstate Barn-

hart and Moore. This approach followed by the Board from the

inception of Barnhart’s 1979 unfair labor practice charge made

it impossible for petitioner to fulfill its intention to let bygones

be bygones and restore Barnhart to a clerk’s position virtually

identical to the one she formerly held.

21

In a similar case, the Court of Appeals for the Seventh Circuit

reviewed the entire record and applied the substantial evidence

test of Universal Camera, supra, in a manner clearly different

from the procedure employed by the Sixth Circuit here below.

(See, Portable Electric Tools, Inc. Vv. N.L.R.B., 309 F.2d 423

(1962).

In Portable Electric a review of the entire record including the

evidence unfavorable to the Board led the Court of Appeals to

find that the Trial Examiner's analysis of the evidence was

“labored” and did “not warrant a finding that the real reason”

for the discharge in that case was “union activity absent inde-

pendent evidence that such activity existed and that the company

knew of it” 309 F.2d 426.

The Trial Examiner in Portable as did the ALJ at bar relied

exclusively upon the testimony of the charging party and ignored

the contrary evidence introduced by the employer. The Seventh

Circuit, however, searched the entire record and reversed the

Board's order. In so doing, the Seventh Circuit significantly de-

scribed its appellate function as follows:

If this Court, however, is not to be ‘merely the judicial echo

of the Board’s conclusion’ then its determination must “be

set aside when the record * * * clearly precludes the Board’s

decision from being justified by a fair estimate of the worth

of the testimony of witnesses or its informed judgment on

matters within its special competence or both. * * * The

substantiality of evidence must take into account whatever

in the record fairly detracts from its weight.” Universal

Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 446,

95 L.Ed. 456, While recognizing that the question of credi-

bility is for the trial examiner, an Appeals Court is not pre-

cluded from independently determining what weight certain

testimony which he finds credible should be given when

evaluating the evidence on the record as a whole.

At bar—the ALJ, the Board and the Court of Appeals have

22

ignored petitioner’s evidence, created issues of credibility where

none exist and engaged in unsupported supposition, all aimed at

shifting to petitioner the burden of proof as to the issues of con-

structive discharge and reinstatement.

B. The Court below incorrectly decided an important issue

concerning the duty of an employer to mitigate under Sec-

tion 10(c) of the National Labor Relations Act which has

not been, but should be, settled by this Court.

This case presents an important issue of federal labor law in-

volving one of the fundamental purposes of the National Labor

Relations Act (“NLRA”). To further the NLRA’s policies of

promoting peaceful resolution of labor disputes and full employ-

ment, an employee, even one discharged for union activity, has

the duty to make a reasonably diligent search for interim em-

ployment during the back pay period. The Sixth Circuit's deci-

sion is in direct conflict with both this clear policy of the NLRA’s

and the case law interpreting Section 10(c) of the NLRA. It is

necessary for this Court to grant this petition for certiorari to

vindicate the policy of the NLRA and settle a conflict in the

case law concerning an employee's duty to mitigate under Sec-

tion 10(c).

This Court, in order to further the “healthy policy of promot-

ing production and employment” underlying the NLRA, has held

that back pay awards must be reduced by any “willful loss of

earnings.” Phelps Dodge Corp. v. NLRB., 313 U.S. 177, 197-

198, 200 (1941). See NLRB v. Seven-Up Co., 344 U.S. 344,

346 (1953); NLRB v. Mercy Peninsula Ambulance Service, 589

F.2d 1014, 1017 (9th Cir. 1979).

Recognizing this policy, the courts have required a discharged

employee to make a reasonable effort to find new employment,

substantially equivalent to the position formerly held, and which

is suitable to the employee’s background and experience. See

NLRB vy. Mercy Peninsula Ambulance Service, 589 F.2d 1014,

1018-19 (9th Cir. 1979); NLRB vy. Southern Silk Mills, Inc., 242

23

F.2d 697, 700 (6th Cir. 1957); cert. denied, 355 U.S. 821

(957); McCann Steel Co. v. NLRB, 570 F.2d 652, 655 (6th

Cir. 1978).

This Court’s review of the decision below is sought to de-

lineate the scope of the “reasonable effort” standard. Petitioner

submits that even a cursory review of the factual findings of the

ALJ, which findings were adopied by the NLRB and the Sixth

Circuit, reveals that Barnhart’s efforts to seek new employ-

ment do not even approach the “reasonable efforts” standard.

The effect of the decision below will be to encourage idleness on

the part of discharged employees and thereby undermine the

purpose of the NLRA.

In reaching the conclusion that Barnhart used reasonable ef-

forts to find interim employment the ALJ reasoned:

In evaluating Barnhart’s efforts to obtain interim employ-

ment, while Respondent looked at and counted only the

number of days Barnhart sought employment, General

Counsel looked, rightly I believe, at the actual visits to

and inquiries of individual employers (because in a day’s

trip Barnhart usually called upon several potential employ-

ers in common locations or close to each other), the repeat

visits, and the visits to the state employment service. Thus

General Counsel calculated that in the approximate eight

years’ back pay period dealt with at trial, from April 1971

to November 1979 (which excluded the six month interim

employment with Quik Shops in 1974 and the 21-week

withdrawal from the employment market in 1976), Barn-

hart made about 500 tries at obtaining employment in an

approximate 400 week period. Scrutinizing the entire back

pay period ... it appears that Barnhart averaged better

than one job inquiry per week in the entire eight year pe-

riod. Her reapplications over the months and years to

places that had not accepted her previously did not detract

from the reasonableness of her effort... . (App. 54a) (em-

phasis added).

24

Petitioner submits that it was incorrect, as a matter of law,

to solely premise this decision on Barnhart’s purported “tries”

at obtaining interim employment because her “tries” were not

indicative of a realistic, reasonable effort to obtain new employ-

ment. For example, the record contains overwhelmingly undis-

puted testimony and evidence that: (1) She frequently failed to

follow up by visit or telephone places where she claims to have

left a job application or where she otherwise claims to have sought

employment; (2) She would go to places looking for work with-

out any indication of whether or not there might be a job avail-

able; and (3) She would visit employers based upon the fact

that they were close to her home or close to each other. For ex-

ample, if she went to a shopping center, she would visit several

stores in the center—without any reason to believe that a job

was available.

A more telling indication of Barnhart’s haphazard search for

work is the undisputed number of days on which she attempted

to obtain employment. Indeed, according to her own diaries, she

looked for work only 33 days in 1971, 29 days in 1972, 20 days

in 1973, 7 days in 1974, 16 days in 1975, 14 days in 1976, 12

days in 1977, 13 days in 1978 and 6 days in 1979. In other

words, from 1971 to 1974 Barnhart searched for employment on

approximately less than 10% of the business days in each year

and from 1974 to 1979 searched for employment on approxi-

mately one day per month. It is necessary for this Court to grant

this petition in order to establish that, as a matter of law, in the

light of the policy behind the NLRA, such negligible search can-

not constitute “reasonable efforts.”

Indeed, analogous decisions of both the NLRB and the Ninth

Circuit have so held. In Flite Chief Inc., 246 NLRB No. 55

(1979), enforced in pertinent part, 640 F.2d 989 (9th Cir.

1981), the Board affirmed as modified a decision specifically

holding that looking for a job once a month does not meet the

duty of using reasonable efforts. There, in a decision diametrically

opposed to the one at bar, the administrative law judge specifi-

cally held that:

25

Ford made attempts at securing employment an average

of only once a month during each of the 49 months which

comprise the back pay period. Ford offered no excuse or

explanation for her obvious lack of effort to secure an in-

terim part-time job to replace the one she had lost when

Respondents discharged her. I do not believe that it is rea-

sonable to conclude that so few attempts at securing interim

employment constitutes “reasonable diligence.”

Furthermore, in NLRB vy, Mercy Peninsula Ambulance Ser-

vice, 589 F.2d 1014 (9th Cir. 1979), the Ninth Circuit explicitly

held that an employee’s attempt at securing employment “an

average of only three times a month during each of the nine

months that he was in the job market after his discharge” did

not constitute “reasonable diligence.” Jd. at 1018. In conflict with

the Sixth Circuit, the Ninth Circuit correctly recognized the policy

of the Act:

A worker who has been the victim of an wufair labor prac-

tice is not entitled to simply await reimbursement from his

or her employer for wages lost, for “the statute was not in-

tended to encourage idleness.” . .. To hold otherwise would

undermine the “healthy policy” underlying the Act, “pro-

moting production and employment.”

Id. at 1017-18. (Footnote and citations omitted).

Thus, this Court’s review is necessary to settle this uncertainty

in the case law concerning an employee's duty to mitigate under

Section 10(c). In addition, this Court should not permit a dis-

charged employee to remain idle during most of a lengthy back

pay period with the expectation that she will be able to receive

compensation from petitioner in any event. Barnhart was success-

ful in obtaining only one interim employment during an eight-

year back pay period; a job Barnhart unjustifiably quit after work-

ing only six months (App. 49a, 56a).

Moreover, the ALJ found that Barnhart fulfilled her legal duty

26

of searching for interim employment notwithstanding that she

ignored such obvious methods of seeking employment as the

newspaper ads and private employment agencies (App. 50a). The

ALJ found that throughout the eight-year back pay period Barn-

hart only applied for one job through the newspaper. Petitioner

introduced into evidence at the administrative hearing the local

newspaper ads on the days that Barnhart claimed she was look-

ing for work and undisputably they contained numerous suitable

employment opportunities.

In addition, the administrative law judge acknowledged in his

decision that Barnhart refused to use a local employment agency

(App. 50a). Petitioner introduced the head of a local employ-

ment agency as a witness at the administrative hearing who tes-

tified that there were numerous jobs available for a semi-skilled

worker such as Barnhart and that it was his experience that after

four to six interviews a person could obtain suitable employ-

ment.

Finally, although it is undisputed that Barnhart registered with

the state employment agency, the ALJ found that Barnhart did

not, throughout the entire eight-year back pay period, apply for

a single job through that agency (App. 46a).

This Court should grant certiorari for another important rea-

son. The Sixth Circuit's decision has broad ramifications. The

duty to mitigate under Title VII of the Civil Rights Acts of 1964

was “expressly modeled on the back pay provisions of the NLRA.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 409, 419 & n.11

(1975). Thus, the case law concerning mitigation under the Act

generally guides the courts in establishing the duty to mitigate

under Title VII. Ford Motor Co. v. EEOC, USS. , 102

S.Ct. 3057 (1982). See e.g., Sangster Vv. United Air Lines, Inc.,

633 F.2d 864, 868 (9th Cir. 1980). Therefore, the decision at

bar that such a negligible effort satisfied an employee’s duty to

mitigate under Section 10(c) of the NLRA has wide implications

in the Title VII area.

27

The Court is presented with an issue of national importance

involving an important purpose and policy of the NLRA. Ac-

cordingly, it is essential that this Court announce clear guidelines

to the lower courts and to employers and employees establishing

the scope of an employee’s duty to mitigate by seeking interim

employment during a back pay period.

C. The record herein demonstrates that the Court below and

the Board avoided addressing the issue of the flagrant denial

of petitioner’s constitutional right to due process and a fair

hearing, which merits the attention of this Court.

The Sixth Circuit, the Board and the ALJ have continuously

avoided coming to grips with petitioner’s contention that it was

denied due process of law and a fair hearing in this matter. As

set forth hereinabove (p. 6), prior to the hearing petitioner, in

accordance with the Board’s rules, requested general counsel's

approval for the service upon the regional director of subpoenas

returnable at the hearing. That request was denied. Again at

the hearing petitioner’s counsel sought the issuance of subpoenas

directed to Board personnel to introduce evidence concerning

admissions against interest by Barnhart in respect of the charge

she had filed which initially had been withdrawn. An offer of

proof was tendered and appears in the record, to show that Barn-

hart and the Board believed that the charge lacked merit and

that it had been filed to pressure a settlement of the backpay

proceeding. The ALJ blocked this evidence at every turn.

It is well-settled that

[A] refusal by an administrative agency such as the Na-

tional Labor Relations Board to receive and consider com-

petent and material evidence offered by a party to a pro-

ceeding before it, amounts to a denial of due process... .

That the Board would or might have reached no different

conclusion had the rejected evidence been received, is en-

tirely beside the point. . . a controversy tried before a court

or before an administrative agency is not ripe for decision

28

until all competent and material evidence proffered by the

parties has been received and considered.

Donnelly Garment Co. v. NLRB, 123 F.2d 215, 224 (8th Cir.

1941) (citations omitted); on remand, 50 NLRB 241; enf. den.

151 F.2d 854 (8th Cir. 1945); rev'd on other grounds, 330 U.S.

219 (1947); on remand 165 F.2d 940.

Admissions against interest made by the charging party at the

time she withdrew a prior, identical charge must be relevant and

admissible. To deny petitioner the right to introduce evidence of

such admissions undermined the hearing and the judicial process,

and deprived Petitioner of its constitutional right to a fair hear-

ing. See NLRB v. Burns, 207 F.2d 434 (8th Cir. 1953). Such

denial was reversible error requiring rejection of the Board’s

Application for Enforcement and remand of this proceeding.

NLRB Vv. Burns, supra; Donnelly Garment Co. v. NLRB, supra.

The ALJ refused to permit evidence and testimony on this

subject in a manner that showed an intention to insulate the

record from clearly relevant and proper testimony. Thus, for

example, without any basis whatsoever for such characteriza-

tion—the ALJ described the proffered evidence as an effort to

inquire into the investigative procedures of the General Counsel

and into the mechanics of the investigation.** Nothing could be

further from the truth; the ALJ had no basis to make this assump-

tion and to exclude evidence that was so clearly proper and

relevant. By preventing any questions concerning Barnhart’s filing

and withdrawal of her ‘irst charge, the ALJ prevented Nichols

from adducing testimoriy to support its defenses.

Petitioner sought to subpoena the Regional Director, to testify,

as set forth in an offer of proof. The ALJ refused to issue this

subpoena. It should have been self-evident from the record that

the Regional Director or his representative possessed non-privi-

®*In response, Nichols’ counsel stated “I am not proposing to question

either the jurisdiction of the Board to proceed, nor am I suggesting that

the Board solicited the charge”.

29

leged, relevant evidence. Under the circumstances the refusal to

subpoena the Regional Director was a star-chamber tactic; prose-

cutor and judge acting as one deprived respondent of its right

to a fair trial and to due process of law.

Fandamental fairness requires that an employer be allowed to

obtain documents and testimony that may impeach or rebut the

evidence against it. “The NLRB cannot hide behind a self-erected

wall evidence adverse to its interests as a litigant” and the relevant

statutes do “not call for a result so inimical to our traditions of

fair trial.” NLRB v. Capitol Fish Co., 294 F.2d 868, 875 (5th

Cir. 1961).

In Wheeler v. NLRB, 314 F.2d 260 (D.C. Cir. 1963) the

employer claimed that it was denied a fair hearing because the

Trial Examiner excluded proffered evidence, denied cross-exami-

nation of certain adverse witnesses and excluded rebuttal evidence

which was tendered by the employer. The court held that the

employer was deprived of a fair trial and vacated the Board's

order and remanded the proceedings:

We find it difficult to understand how the Board could

dissociate the Examiner's findings and recommendations

from the evidence of bargaining history which loomed so

large to the Examiner. The refusal to allow the employer to

cross-examine on the subject and to present his version of

that subject led to a record weighted unfairly against one

party. This constituted a denial of due process which can

be remedied only by a remand to supplement the record and

as supplemented it must be reexamined by the Board.

Id. at 263.

As in Wheeler, the ALJ at bar refused to allow petitioner to

cross-examine adverse witnesses in violation of petitioner’s due

process rights.

It is axiomatic that if the order of the Board is found to be

30

premised upon an unfair hearing then such order must be

set aside and the case remanded to the Board for a new

hearing. A. O. Smith Corporation v. N. L. R. B., 7 Cir.,

343 F.2d 103, 110 (1965); Tele-Trip Company, Inc. v.

N. L. R. B., 4 Cir. 340 F.2d 575, 581 (1965); National

Labor Relations Board v. Bryan Mfg. Company, 7 Cir. 196

F.2d 477, 478 (1952). The due process requirement of a

fair hearing is unwavering even though the findings of an

unfair hearing might otherwise be justified on the merits.

National Labor Relations Board v. Phelps, 5 Cir. 136 F.2d

562, 563-564 (1943).

Great Lakes Screw Corporation v. NLRB, 409 F.2d 375,

381-382 (7th Cir. 1969).

The failure of the Sixth Circuit to even address this crucial

constitutional due process, fair hearing issue is further confirma-

tion of the petitioner’s contention that the entire record was not

reviewed below and that a writ of certiorari should issue herein.

CONCLUSION

For each of the foregoing reasons, petitioner requests

that this petition for a writ of certiorari be granted.

Dated: New York, New York

July 14, 1983

Respectfully submitted,

LEONARD W, WAGMAN

GOLENBOCK and BARELL

Attorneys for Petitioners

ROBERT S. GOODMAN

TIMOTHY P. DILLON

Of Counsel