# Petition for Writ of Certiorari — Lincoln Rochester Trust Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0252%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 369 U.S. 887 ## Text ‘I Office-Supreme-Court, U.S. pEIARY FILED ORE COURT. UB “APR. 9 1962 - JOHN F. DAVIS,’ ciemn > IN THE , Supreme Court of the Bnited States OCTOBER TERM, 1961 No. 8 5] 1 WHITELIGHT PRODUCTS DIVISION OF WHITE METAL ROLLING AND __—— CORP., Petitioner, “v. _ NATIONAL LABOR RELATIONS BOARD, é Respondent. ~ ———— | PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS » -.. FOR THE FIRST CIRCUIT _ —— . -Rosert ABELOW, Attorne y for Petitioner, 60 East 42nd Street, New York 17, N. Y: Of Counsel: ° ~ MarsHaut C. BERGER, Wituam J. 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The decision of the Court heluw ix in conflict | with the provisions of the National Labor Relations * , a eee LER nt a ee ‘2 The decision ef the First Cireuit is in conflict. with decisions of the © -cond Circuit —. 11 3. Pilix case presents an important question of Federai labor law not previously considered by this COI nce engenseornencncecavncneticonenees peek Ye rae}: 5s CONCTATBION 622000022 aceceseeccesnnene wehooeeree 2s > NERB v. Philamon Laboratori x, hnc., 20s F. 2d 176 (2nd Cir, VMG2) + eee leet pert 12 ONL RB vy. Sev Seren-E p Bottling G 0., d44.U. 4 (195: 6. - VERB v. Superior Fireproo} dor & sa Co., er : F. 2d 713 (2nd Cir. 2 Eanes Be ag atehiaes See 28 Me Pérry Coal Co. N. eh id Statutes: . National Labor Relations Act 2-38, Ba-BMa, passim "Congressional Reports: House of Represe ntatives Committee Report No.’ 245, SOth Congress, First Sess on sieeeoeadrecanibes m4 © °° > 2. ALL LLL AO Supreme Court of the United States. ' OCTOBER TERM, 1961 * ?- Na - ° - a W HITELIGHT Prope cts Division or Ware Merat Rowing AND STAMPING Carp., ° 8 Petitioner, Natioxat Lasor ReLatioxs Boar, ; Respondent. yf PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT . White light, Products Division of White Metal Rolling. a = Statping Corp. prays that a writ of certiorari issue iv w the judgment of the United States Court of + she als for the First Cire uit entertd in the alyste entitled (sition on January 15, 1962. * Citation to Opinions Below . The inte rinedist report of the Trial Examiner and the decision and order of the National Labor Relations Board Regardless of the effect of such ‘an order on the Employer, it must of necessity shave a pro- found effect on its employees. ‘They avill find, regardless of ‘their own’ wishes and desires, that. the Union has been made their spokesman at the colbeetive bargaining table “fora reasonable period” and that the Union has. been | viven all of the power over them and their-rights that this implies, And all thix without adequate proof, as we will show below, that the Union was a choice of the majority of - the eruployees. oe This contrasts with the fundamental policy of the National. Lalor Relations Act asvexpressed in: Section iF Section 7 specifically vives employees the right.“to bargain = of their‘own choosing” and “to refrain Erom gny or all of the activities pro- tected by Section 7. Phe entire. balance of the National Labor Relition Aer exists to further these rights. In short, if an order of the NLRB deprives any group of employees of tir rights under Sec.ion 7 it cannot effee- tate the poliey of the Neto. a In thig ease however the Board ordered an employer to bargain with a union wher the only proot of the union's majority status was that a majority of employees signed = . 2 ‘ P ae e ss ie - a authorization cards after a whirlwind campaign.” The natural wareligbility of such evidence ix heightened by the .- s fact that several employees jhad second thoughts about joining the Union. almost as soon as they signed the cards (CJA 50, 102) and that throughout the brief Union or- ganizing campaign the employees’ imirids mist have been pre-occupied by the impending dislocations which would be — - caused by the breakdown of the Brooklyn press. =f. We will demonstrate below that under, the National Laa- bor Relations Act the’ Board has no power to determine whether .or not a union represents a anajority -of the plant’s employees by any other means but a collective bar- gaining election held under Section 9% But ii any event the basic thrust of the First Circuit's opinion is that the inadequacy of this proof of the Union's majority status is outweighed hy the unfair labor practices of the Employer. - The: First .Cireuit holds tha although. the Employer, could have forced the Union to prove its claim of ma- - jority status at a Board election had it leon innocent of” unfair labor practices, the Bmployer's guilt emoved this right. In effect, -this means that the employees’ fights are dependent upon thie innocence of their employer and their rights could be ordered violated by the Soard to. punish their employer for violating their rights. “Thus the em- . ployees would lose their right to bargain’ collectively through representatives. of their own choosing and have to bargain with, representatives of the Board's ‘choosing. They would lose their right to refrain from bargaining and would have ote hargain collectively whether they wanted to. or not whenever the Board desired to punish a ‘guilty employer. Obviously, punishing ay employer by abridging the rights of his emplovees which the Aet ix de- signed to. protect Gan inne sense be considered an effectu- ‘ation of the policies of the Act. y * a ° Indeed, the Board's order herem may be an erder for the Employer to do: precisely what this¢Court in Taterna tional Ladies’ Garment Workers Union v. NLRB, 366 me 731 (1961), lield*to be an unfair labor practice if done by an employer on his own volition that is to reegynize a Union not representing a. majority of employees as the collective barguming representative for his employees. This is not the place to Slaborate on the ‘factual inade- - ‘quacies of thy proof of the nion’s Inajority status hereim but we must emphasize that any proof of this ottey than an NLRB election was specifically disapproved by. the explicit ‘provisions of the Taft-Hartley "Act Amendinent= te the Wagner Aet and their legislative. history. In the original Wagner Net, Spetion. 9(e) read aa follows: . (pees ete) Whenever a qtlestion affecting commerce arises concerning the representation of employees, the Board may investigate such controversy. anid certify to the parties. in writing, the mame or naites of the representatives that have been designated or 11 bargaining election or otherwise consulting the employees’. desires except by a complete acceptance of authorization cards obtained, through a “whirlwind eanipaign™ under the shadow of a temporary major dislocation in the Employ- ers business. , i We submit that for these. reasons the Board's order is in violation of the provisions and intent of the National Labor Relations Act. 2. The decision of the First Circuit is -in conflict with decisions of the Second Circuit. | We submit that the Court's decision herein ix in con- flict with the decision of the Second Circuit in NLRB v... Adhesive: Products Corp. S1 EL 2d 89 (2nd Cir. 1960). in that ease the Court was faced with a similar NLRB order. The Court began its discussion of the problem by asking the only question awhich can possibly he’ relevant ( in considering the validity-of any NLRB order. caleulated toe give te the employees the right to which they are entitled?” (at page 91). a i Its answer, we submit, applies’ equally well te this “First, they should not be made the pawns of any union, the company, or of the Board. ‘Seeond, they : should have an-opportunity: to express their choice in the manner provided by law" Cat page UT). Pouaseed Upred. these cide posts, that Court nioditied the NERB order as fellows: “Keeping in mind the poliey af the Act, namely, to encourage bargaining through representatives of the Muiplovees’ own choosing (Seé. 7) the Board - se ndtercthese ctrenmstanees, what — solic! ix tent ~ 12 . and this court should endeavor to make this goal attainable. The most feasible procedure would appear to be that suggested by Judge-Learned Hand in NLRB vr. National Licorice Co. (104 FL 2d 655 . (2nd Cir. 1939)) and followed by Judge A. N. Hand . in NLRB vr. American Mfg. Co. (106 F, 2d 61 (2nd Cir. 1939)) namely, * * * to make the order ‘egn- ditional upon thé Board's ascertaining by a new election whether the union is now the choice of the majority.” da this away the current Wishes of the employees can manifest themselves under the aegis of the Board's -supervision™ (at page 92). » See also NLRB vy. Marcus Trucking Co., 286 B. 2d 583 (2nd Cir. 1961); NLRB v. Superior Fireproof Door & - Sash Co., 289 F. 2d 713 (2nd Cir. 1961); Perry Coal Co. v. NLRB, 201 F. 2d 126 (3th Cir, W961). } It-is precisely such relief which should have been ordered ~ here so, as to prevent the employees at North’ Walpole from being made “the pawns of the Board.” ; These decisions were distinguished on their facts by the Second Cireuit in. NLD y. Philamon Laboratories, Ine. os F.2d 176 (2nd Cir. 1962)'——but these attempted dis- tinetions cannot remove the soundness: of the reasoning of the Idhesire Products case and the. cases which fol- lowed it. They point out basie considerations which must govern.all orders of this type and we submit: should he applied herein. | | 3. This case presents an important question of Federal labor law not previously considered by this “At the oral argame wfore the First Circuit. counsel for the Board stated thag the argument. set forth im 1. 1 We have been advised by counsel for Philamen Laboratories, Inc., that he intends to petition for a writ of certiorari in that case. a 13 above based upon -_ legislative history of the Taft- | Hartley Act was being” prese nted to a Court of “Appeals - for. the first time. Thus, this case presents to this Court for the first time the same question, that’ is whyther the + Taft-Hartley Act Amendments to Section 9 in effect ‘re- me versed Franks Bros. Ci. vs. NLRB, "321 U.S. 702 (1944). | .. In any event this Court sai never reconsidered its action in Franks Bois. after the Taft- Hartley Act ane mdinents. The importance of this issue in theory is obvious from our diseussion in 1. aheve. “Tt practicnl importance can GRO as he seen by the large number of cases in whieh the STR - attempts to impose ord: rssiniilar to the one at bar. We submit’ that’ \the importance of. these questions merits a reconsideration by this Court of .the entire problem of “remedies for ‘S(a)() violations in view of the Taft- | Hartley. Act aun fulments, this Court's decision in luter-, national Ladi Garment W orkers Union 6. NLRB, 266 CYS. ‘731 (1961) and above all the asic philosophy of the OXER Net as a remedial rather thansa painitive statute ‘designe “l te protect employers" rights. ; iy ae ‘CONCLUSION For. the foregoing reasons this petition for a writ a certiorari should be granted. Kexpo “ ‘fully subn itted, 4 Sh Ronentr’ Anevow, * Atfornen for Pe Aitioner, BLL Kast 42nd sph New York 17. N =. Of Counsel: Varsnacs (. Berger. Wroam J. Aberow, Wei. Gorsian & Maxces. - i . R ‘ ‘ a . fr. . ~~ . . mi “ 5 7 bi . ¥ . > . . ° . . ® . be . . . * . 7 . ays . * : ‘ . be . . a / s 8 . . ee ®. % . F . * . - la APPENDIX A ts ‘ Intermediate Report. of the Trial Examiner STATEMENT OF THE CASE Charges having been filed and duly served, -a complaint and notice of hearing thereon having bech issued and served by the General Counsel of the National -Labor Re- lations Board; and an answer having been -filed by the : above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section S(a)(1). (3) and (5) ot the National Labor Relations Act, as amended, wax held in Bellows Falls, Vermont, on Novem: - ber 14, 1D and 16, 1960, before the undersigned Trial bX- aiuiner. : ) ; At the hearing all parties Were represented, and were aiforded full opportunity to present evidence pertinent to the issues, to argue orally and to file briefs. Oral argu- went was waived. Briefs have been received from General Counsel and the Respondent. - _- After the hearing was closed, and. pursuant to an under: standing reached by the parties at the hearing, a stipula- ‘tion of fact.-relating to corpain telephone records, Wax re- ceived by the Trial Mxaminer. Said stipulation is hereby made a part of the record in these proceedings, Disposition af the Respondent's motion to dismiies the complaint, upon which ruling was reserved at the hearing, is wade hy the ‘following findings. conclusions and recom- ‘mendations. cae: abs tae — Vpon the record thus made, and from: his observation of, the witnesses, the Trial Examiner makes the following: ‘8 2a Appendix A _Fixpines or Fact 1. The business of the Regpondent _, The Respondent is a New York corporation. [ts princi- pal office and "place of business is in Brooklyn, New York, with a Division located i in North W alpole, New Hampshire, which plant is hef#inv olved. At this plant the Respondent - is engaged in the manufacture, ‘sale -and distribution of? extruded, rolled and finished products of magnesium *and aluminum alloy and related products. In the course of its operations at the North Walpole plant the Respondent reeeived materials valued at more than $50,000 annually. from points outside the State of New Hampshire, and has ‘shipped products valued at niore than $50,000 annually to points outside that State. The complaint alleges, the answer does not deny, and the Trial Examiner conelndés and finds that the Regpond- ent is engaged in commerce within the meaning of the Act. . I. The Charging Union ° U nited Electric al, Radio and Machine Workers of Amer- ica, Local 218, is.a labor organization admitting to metn-.. bership employees of the’ Respondent. If. The unfair labor practices A. Setting and issuer The chief itenis of conduct claimed by General Counsel . to he violative of the “Aet oceurred during the week begin- ning August 15, 1{W00). In substance it ix his contention that almost immediately upon being confronted: with a request for recognition, submitted by a representative of >. 3a” * amt Appendix A the Charging Union which at the ‘time represented a ita. jority of the Respondent's, employees, the plant nlanager unlawfully discharged two employee leaders of the organ- | izational movement and laid off four other employees. By such unlawful discrimination and by other interference, restraint. and coercion, General Counsel urges, the Re- jspondent also violated Section S(a)(5) of the Act in re- fusing to bargain collectivgly with the Union as the ma- jority representative of “all euiployecs in an appropriate unit. 4 The Respondent’s answer merely enters a gene ‘ral denial. At the hearing and through its witnesses the Respondent claimed ¢ertain affirmative reasons for its actions which will be discussed below. - ~ y “B. Facts . Because of the interrelationship both of the issues here presented and the pertinent events, the Trial Examiner ‘will summarize in this section and in chronological order certain findings of fact relating to General Counsel's case. Discussion of evidence adduced by the Respondent to sup- port its. affirmative claims will be ryse rved for a later section. The Trial xainer finds ax follows: .. (1) On Monday, pum 1h, «: uployee Donald Belden met with Organizer Hugh Harley, Jr.. of the Charging inion, avd from bim obtained union authorization ecards. He distri ited them among the production and tmainte- mance employees during the next 2 days. } (25 Phe Réspondent concedes, and it ix found, that on August 15. 16. and 17. eighteen’ of the employees in a unit 4g : ¥ mittee. . P Appendix A Pee admitted to be appropriate signed cards authorizing the .. Union to represent,them in collective bargaining. Pe (3) While the record reveals a minor dispute as to e . whether there were 24 or 25 employees on the payroll in ~ the unit on August 17, there can| be no dispute that 1S cards established a majority representation as of that date. (4) During the lunch period on’ Wednesday,’ August 17, many of the employees who, had sigped cards: anet aim selected a committee of seven to accompany Harley to de- mand recognition from Plant Manager Records, Donald Belden was selected as chai rman of the employes group. (5) That noon, Harley, and the committee went to Record’ office. Harley introduced himself ax the ‘union representative and Belden ax head of the. eryployee com- ‘ , ° * (6) Harley claimed majority representation, and offered to prove this-claim by the cards then-with him, by a come munity election, or any other suitable method. THe de- manded recognition. Records raised no question indicating doubt of such claim, but said he would not grant recogni- tion then. He .promixed to give Harley his answer the following Friday.’ 1. The findings as to this interview rest. upon the credible, testi- mony of Harley and Belden whieh in large part is corroborated, by” Records. or reasons set oat at Jength in a later section, however, the Trial, Examiner can place no reliance upon any of the plant manager's testimony. Such unreliability is alsa made plain by’ the fact that on direct examination Records admitted that Harley “had: cards to show that the CE represented a majority.” but on cross- examination, when-asked if Harley had cards, he replied: would _ say no... . TP don't remember” sIn-any event, he finally admitted, m - effect, that he had*no doubt of the anion nfajority that day. ’ ‘ “3 ova Appendix A (7) At the same meeting Harley asked Records net te interfere with the employees’ right to organize and the plant managér. promised that he would not. (8S) Shortly after Rvcords had given thix promise, how ver, Belden was sent into his office, where the polant “nanager warned: thy employee that the Union was’ Com “qnunist and he would be branded for life if he continued in it., Records also insisted that there was ne need for acunion in the plant, and threatened thatoif “it cnn: in the employees, would no longer receive monthly raises and all would have to go through another 30-day trial period. The manager alse told Belden that he had “a fairly de: cont potential” and “had qualities for a good worker.” Records obtained Belden’x agreement that he would re consider and would present the jnanager’s point of view t» the eniployee committee which was to meet that night at the home of Sylyeer Smith, an employee. (9) Late the saine afternoon Poreman Lemp interto | gated eniployee Benjamin about his union svinpathies, and warned him that if the Union got in he thought the plant would close...” . (10) That night, having previously been informed where, the iveting was to er Jed, and within a period of some 15 or 20 minutesydtecords twice drove slowly by Smith's - home, each time looking in.” (11) The nest morning, Thursaiy, August IS. a) mun ler of Cinployees infortned Bélden that Foremen Leni and Humphrey were calling them aside and ‘interrogating ther phout the Union. As spokesman for theeunion commit rlden (went inte Records’ office and protested against Me . - Q tin % A ppendia.A this conduct whieh the manager had _bromised would, not ‘be engaged in. ~ (12) Reckdi. gave the employee this reply only: “Do : ‘you realize You are jeopardizing vour job by coming in. ’- here?" He ordered the employee hack to work, . (13) Later during - ‘that day Harley returned to the office, asked for but was denied pe rmission to have Beldén aecompany him, and then voiced: his protest against Records’ failure to comply. with his promise of-the before. He again asked for recognition. Records denied that there had been any interferenesy_and told Harley he would get his answer on: recognition the following day. (14) Also on Thursday employee Benjamin went in to ask Records: for. a raise.” Reeoyds told him that if the Union ‘got in “there wouldn't be but one raise a year.” (15) The same day Foremen Humphrey and Lemp in- terrogated eae LaDuke regarding his feeling about the Union. Leyip told. him that if he: would -vote “no,” they would be “better - in the’ shop,” and warned that if “the Union comes in” they would be working only months a year.” Lemp asked. the conperee to give him his. answer that night. ; (16) Late that afternoon: both Donald: Belden and Syl. vester were summarily and without previous Warning dis- charged, and employges Maurice Brodeur, Clinton Pecor, o Roland Prouty and Bernard Smith were laid off until fur- ther notice. | (17)sAs" noted heretofore, «Belden was the emiateses leader of the organization—admittedly known to bessuch * . . >. g * gat , ppendix A— bh. Reeords, Sylvester Sinith was on’ the employee com “mittee and it, was by hix house whieh Records had driveti slowly the night before, an act of surveillance. Emplovees ~ Peeor, Prouty and Bernard Smith were on the émployee committee which had been in Records’ office. Wednesday noon.” Although Brodeur was not’a member of the commit- tee, he had®signed.a union card and ‘had reeently been employed at a nearby plant which had been organized by the sane union local. - ¢ : , | (18) These six employees (except Prouty, who was not a Witness) were told upon their discharge or lavoff, as follows :° - “ a. Belden was first asked by Records: “Do you remember what EF told you early this morning about jeopardizing your job?" Belden concedéd his recol- lection... Records then ‘said: “As of this moment vou are fired.” He gave the employee two reasons: (1) vou haven't beentattending to your work and i +4 eee vow falsified your application form.” The plant manager then ordered Foreman Humphrey to ~ escort Belden off the premises within 10 minutes and notte permit him to return to the shop. ; ” hb. Svivester Smith, the first employee hired by the Respondent when opening the plant in the late fall of 1959, was told as he ‘eame from the toilet by Plant Engineer Wickberg to “keep on going” —out of | the shop. When Surith asked why, Wiekberg replied that he was spending too much. time in the toilet and his work Was unsatisfactory. As the two proceeded to. the office, apparently to get the employee's dis-- 2 4 * . charge check, Wiekhers said: “You know what Mr. _hawson, (general mimager ‘of the Respondent) said about the upion. bfisiness?. .. His first words. were, . ‘Ha, Ha, Ha.” s § / Sa Appendix A e. Bernard. Smith, who .had_ told Records that - morning that he would continue to “go along” with the ofhers despite.the manager's efforts to dissuade him, was merely informed .by Foreman Lemp that he was laid off “due to preduetion.” - ds Maurice Brodeur. also Jaid off by Lemp, was”: told by this forenran “we are cutting production™ ‘and while he was satisfied with his work he had “got to lay” him off. The foreman added, “Probably,. when this blows over, they will hire you hack.” was told it was “due to things that are happening here.” a | (19) On Friday, August 19, Foreman Leurp asked em- ployee Shafer while at work what he thought of the Union. Shafer evaded “the question. .Lemp then told him that if the Union came in the employees would have to pay the @ost of insurance then being borne by the Company. The foreman also told Shafer: “I hate to fire anybody, but when I get the word from the bigger boss, | got to do it. You see what happened here yesterday.” He also said there were “7 or 8 people out on the street now that would - yote for the Uggon.” (20) Also on Friday Records told employee A. Fair that if the Union came in the employees would get but one raise a year, and asked him to change his mind about the organization. . } 2. Lemp was not a witness, and all remarks attributed to him are ‘uncontradicted. Plant Engineer Wickberg, a witness, did not dis- pute Smith's account of the discharge interview, although he gave a somewhat different version which the Trial Examiner does not credit. eas e. Clinton Peeor, upon being laid off by Lemp. , ‘Mat Appendix A + (21) At noon that day when Harley returned for Records’ answer to his demand for recognition, the plant manager dismissed him by refusing recognition and point ing out that the organizer had provided his own answer * by filing a petition with the Board for an election. C. Conclusions The foregoing, facts, based upon credible testimony largely unchallenged or undisputed. establish a prima facie * _ease supporting all allegations of thie complaint and which, in the opinion of the Trial Examiner, may successfully be counterpoised only by a most convincing presentation of } credible evidence warranting other condusious. “In quick summary, the Respondent would hage it found that: (1) Belden was discharged, because he “falsified” his application for employment several weeks’ earlier: (2) Sylvester’ Sinith was discharged because he had deen an unsatisfactory employee over since he had been em- ployed: and (3) the four layoffs were made necessary Ihe- ‘cause of an accident at the Brooklyn plant on August 15, where certain materials were prepared for shipment te the’New Hampshire plant and assembly there. By a considerable measure, In the opinion of the Trial ‘Examiner, the Respondent has failed to provide the neces- sary éounterbalance to General Counsel's case on each of the issues. As to the layotfs, the testimony of General Manager Lawson and Plant Manager Yecords ix not bniy mutually . contradictory on exsential points but lacks support in com. pany records. The following examples of contradiction are P noted: 4 4 | a IHa Appendix A (1) Lawson testified that following \ accident to a Brooklyn press.the morning of Augiist 15 he. tele-. phoned to Records and instructed him to “eut his im mediate work force 24 per cent.” Records, however, has flatly denied that Lawson so instriic ted him.’ (2) Records testified that Lawson “knows every Single person up here” and that through him “tries “to be acquainted with the individuals and skills of the. people up here in North Walpole.’ Lawson, however, declared: “I dén’t know the situation with - respect to the qualificas#ons of the individuals.” As to company records—or documents purporting to be such (rio primary records were produced at the hearing) the Trial Examiner is at'a loss to determine which of two documents, if either, is correct and accurate. Both were | prepared by the Respondent, one being submitted to the . _ Regional Office before the hearing and the other introduced by the Respondent at the hearing. Varianées are not minor, as the following comparison shows. The items pur- port to be the total poundage of “extrusions” received at the North Walpole plant from Brooklyn Pe the months - noted: - > : Oanuvai Counsel's Ex. 4 Resp. Ex. 3 pn 30,284 : 44,711 re ... 36,738) ~ 43,330 August .......... 25,463 ria 21,398. 3. -It. would appear to be difficult to. conceive of a more direct denial than here quoted from Records’ testimony : (). For that matter, didn’t Mr. Rawson tell you on Mont day to reduce the force by 25 percent ? \) A. No. . Q. Didn't he? : A. “No. ° Ss ay At Appendix A It appedrs to be Lawson's claim that. because of the breakdown at Brooklyn, no more than 40,000 pounds of “extrusions” could be provided. monthly to News Hainp- Shire for some months after August 15.0 Since one set of figures produced by the Responde nt shows that in neither of the two preceding months, had the receipts attained t figure, it cannot be reasonably maintained, in the opinion ‘of the Trial Examiner, that a reduction in force was re- quired to assemble 40,000 pounds. _ Finally, Lawson admitted. that there was-10 ~Feduction in force at the Brooklyn plant, where the accident occurred, The ‘Trial Examiner concludes and finds that there is no merit to the Respondent's clain, that “the saccident made necessary reduction in force at the New Hampshire plant and that this was the reason for the layoff of the four employees. , As to Sylvester Smith, it ‘appears needless to review in detail the plainly exaggerated’ and colored testimony of - both Records and Wickberg regérding their dissatisfae- tion with:him. According to them he had been a poor workman and wholly unsatisfactory ever since he had been ’ hired. He- was the first employee at this plant, and it is undisputed that ‘he had received two raises Within the period of somewhat less than a. year of his employment. Both Records and Wickberg finally admitted that Snuith, ‘had never been warned or cautioned that unless he did better work he would be‘either discharged or suspended. Under such circumstances, the Trial Examiner finds ne merit in the aun reac contentions as to Simith: As to Belden.“Only Records téstified as to the claimed reason for his discharge. The manager's insistence that ehe had taken this action because of “falsification” of the e - ® - ; aep. 4 Ke! * Lae Appendia Ao employte’s application for employment appeared early in his testimony to have, some degree of merit. - While exami-, nation of the document, in evidence, shows that “falsifica- / tion” is an ‘unduly strict characterization, it is established, and Belden did age dispute the fact, that he accredited himself with some 2 years more of military service than he actually had. He did not “falsify,” but merely left blank, a —- of the application calling for a listing of “arrests.” Connotation of the word is not in issue here, however, but only ee testimony as ‘to what he did about it. The manager repeatedly stated ‘that during the few weeks of Belden’s employment he had queried loc “al insur- ance, and real estate agents, a police chief and’ a judge, concerning “rumors” of Belden’s character and past. Although he said it had “occurred”. to hit to ask the employee himself, he admitted that he lad never done. x0. Finally, he claimed, he telephoned4oa V ermont probation officer in a nearby fown, pn the morning of August WW, and learned from this official that the voung man (only 25) Was on probation from an offense committed in the State of New Hampshire sometime before Ids employment by the Respondent. ‘ Records was not only emphatie in’ his claim that this tele ‘phone call was made on August 16, but insisted that, the informatjon he then received caused his - tnnediate decision to. discharge Belden. * vestigation’ None pe ge ‘testiunony regarding his previous “ine ax the “sfightest corroboration in. the evic-y dence, J. VL Moevkens, pinging officer called as a rebut- tal witness by General Cou.sel, admitted that someone at the plant had called him, but he could not decurately fix the date. a, see ee « Iba Appendix A As a witness Records attempted to bolster lis recellee- fini of the precise date bos testifsime that die. hard a diary “N hie h contained anventry refreshing his recuflertion. The diary wits net. prreaditerd. » Shorth before “the hearing closed General Counsel ap- pr for a subpoena cing tes telephone recoids. 1 was eranted. Counsel for both parties then agresd that within . a specified period a joint ietion Lor reape Wing of the hear ine would be subtniited te the Trial K Saniner or a stipu- lation of fact as to what seh records disclosed would bn: forwarded. Bearing inomind the obvious jieint that if Reeords hid in fact made the-call on Ausust 16— the day before he had ‘know ledees of Belden’s union feadership, the Respondent's contentions ax to his dixeharge might have possessed ~one merit, the following stipulation is revealing : It ix hereby stipulated by and between the Counsel for General Counsel and Counsel for Whitelight Products Division of White Metal Rolling and Stamping Corp. that the records of the New ‘ cate that on Thursday, August. 18, 1960 a teleplione call was placed from Whitelight Products Division ‘of White Metal Rolling and Stamping Corp., North Walpole, New Hampshire, whose telephone number ix Willerest 5-551) to Mr. Julius Vl Moeykens, Brattleboro, Vermont, whose telephone number t= Alpine 4-590) at 35. AM. Said) telephone call was of nine (8) monutes durzition. The above tele- phone minibers ar the respective and only numbers: for each parts. No other tele pilone calls: were placed between the above-two nutbe vs in the month of August. England Telephone and Telegraph Company indi- - «+ Ida . | Appendix As * e ‘No motion for reopening the hearing has been received. 7 Further comment upon Records’ credibility as a wittiess appears hardly necessary.’ In final summary, the Trial Examiner coneludes and finds ax follows: rc / VU) AME production and maintenance employees of the Respondent employed at its North Walpoi- plant. exelu- sive of office clerical employees, professional employees, suards and all supervisors as defined in the Aet constitute a unit appropriate for the purposes of collective bargain- -. ing within the meaning of .Nection 9(b) of the Act.” (2) On August 17, 1960, and at all times since that date, the Charging Union has been and -is now the exclusive representative of all employees in the said-unit for. the purposes of collective bargaining (3) On August 17, 1960, and at all times since then, the Respondent has refused to bargain collectively with the said Union, not only by refusing to’ reeognize jit as the representative of its employees but also by its disclitrge , and layoff of the employees named herein and the inter-- ference, restraint and coercion herein described. . (4) On August 18, 1960. the Respondent) diserimina- torily and to discourage membership in the Charging Union discharged and laid off the six employees as found above. 4. The Trial Examiner notes frere that he does not believe that either of the Respondent's two cgunsel—Robert Abclow or his aon “William—were aware of Records’ obvious alteration of dates. Abelow, senior, readily agreed to join in the proposed stipulation as soon as he had an opportunity to check the Respondent's own tele- phone records—records which of course had been available to Records since August, 1960. In short, the Trial Examiner attributes no bad faith to either counsel. Appendix A | ~. (5) Under the cireumstanees found herein, the interro- _° vation of employees as to their wien Elee- trical, Radio and Machine» Workers of Anieriea, Local 2ZIS, or in any other labor organization, by discharging, daying off, refusing to reinstate, or in any other manner discriminating in regard to hire or tenure of employment, or any term = or condition of cmployinent; (hy) Threatening emplovees with economie re- prisals or promising benefits to discourage lene Cbership in any labor organization, or engaged in surveillance of employees’ union activities, or inter- rogating cmiployees regarding their union meniber- ship or activities: in a manner Vielative of Section S(a)(1) of the Act; (¢) In vany othe manner interfering with, re- straining, or coercing employees in the exercise of the right to self-organization, to form labor organi- - gations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur. pose of collective bargaining or other imutual aid or protection, or to refrain from any or all such activities, exedpt to the extent that such right may. be affected by an agreement requiring -inembership in a labor organization as a condition or cuples ment as authorized by Seetion S(aj¢3) of the, Net, as imedified by the Labor Management, Reportine and Disclosure Act of 1959. | ‘ aby welts all a, “effectuate the policies of. the: Act: (a) pon request, bargain — collectively with United Kleetrieal, Radio and) Machine Workers of Ameriea, Loéal JIS, as the exelusive representative od > oof the Respondent's enployees in the appropriate - unit deseribed*in the Intermediate Report and. if an understanding ix reached, embody pail under- ‘standing ina signed agreement: (th) Offer cmplevees Sylvester Smith, Maurice Brodeur, Clinton “Pecor, Roland Prouty and: Ber- nard Smith immediate and full) reinstatement to their former or substantially equivalent. positions Without prejudice to their seniority or other rights and privileg ges, and make them Whole for any loss of earnings they may have suffered by reason of the discrimination in-the manner set forth in the _ section of the Intermediate Report entitled “The Iie meds 5° cs (e) Prose ‘rve, and upon request, make available to the National Labor Relations Board. or its agents, for examination and copyi@g, all records necessary for the determination of the amount of backpay due and the right of -reinstatement under terms of this Order; Sten td) -Post at its plant in) North’ Walpole, New Hampshire, copies of the notice attached hereto as “Appendix.” Copies of said notice, to be fur- Nished by the Regional Directer for the, First Re- wien, shall, after being duly cigned by the Respond- 3. In the event that this Order. is cntorced by a decree of the lL nited Mi ites Court of Appeals, there shall fe substituted for the words “PURSUANT TO A DECISION AND-ORDER.” «the - words “PURSUANT TO A DECREK OF THE UNITED STATES COURT OF APPEALS, ENFORCING AN ORDER.: 4 2. Take the following action, whieh the Board finds will “ Fle “4a al ppendir al ent. be posted immediately upon receipt ‘thereof, . in conspicuous places, and be maintained for a period of sixty (60) consecutive days. Reasonable steps shall-be taken to insure that said notices are ‘not altered, defaced, or covered by any other ma- * terial: ae ta (e) Notify the Regional Director for the First Re- . - gion of the National Labor Relations Board, in writ- ing, within’ 10 days froni the date of this Order, what steps the Respondent has taken to coinply herewith. Ir Is Ferruer Orverep that the complaint, be, and it, hereby is, dismissed insofar as it alleges that the Respond- ent violated Section S(a)(3) of the Act by° the discharge ° of Donald Belden. ~ “Dated, Washington, D.C. Jun 27 1961 ° ss Par Fraxk W. MeCrrnocu, Chairman Prue Ray Ropaers, Memln r Joun TH. Fannin, Member ne — Natrionar Labor Recarions Boarp (Appendix to order omitted.) aa TT | APPENDIX B U NITED 8 STATES COURT OF APPEALS For THE First Circvit No. 5870 Natrionat Lanor Ret ATIONS Boarp, a Petitioner, Wiareuicur Propvers Division or Wire Merav Rotuixa axp Srastping Correoration, Pea +» adeiaiecastmetiag Respondent. No. 5877 : Unsiren Kiectrican, Rapio Ye,’ & Macutxe Workers or America, - 2 Petitioner, Natioxat. Lator Retations Boarp, SC ipeeaeonete Respondent. ON PETITION FOR ENFORCEMENT ANU ON PETITION TO REVIEW AND SET ASIDE-AN ORDER oF THE NATIONAL LABOR RELATIONS BOARD Before——Woopsrry, Chief Judge, and Hartigan and ALDRICH, Circuit. Judges. Mevvin J. Wecres, Attorney, with whom Srvart ‘Rorpman, General Counsel, Dominick — L. Manout, Associate General Counsel, and Marcet: Mauurt-Prevost, — General Counsel, _ + were on brief, for National Labor Relations hol ' Board. . Roserr Asecow, with whom Marsuatu C. Bercer, Wittuam J. Apetow, and Welt, GotsHaL & _ -Manées, were on brief, for respondent: in No. “5870: =% : | ae, AtLAx R. Rosexserc for petitioner in No. 5877 ~ . ia Appendix B’ - Opinion of the Court January 15, 1962 Aupric Hu. Cireuit Judge, These two matters were heard ° tuapetlee’, The first is a petition for enforcement of a La- bor Board order against Whitelight Products Division of White Metal Rolling and Stamping Corp., a New York cor poration, hereinafter employer, following a charge by the United Electrical, Redio & Machine Workers of America, hereinafter the union. The second is a, petition by the union to review the dismissal of a portion of the com- plaint. All of the immediately significant events took place in North Walpole, New Hampshire, between Monday ‘and Friday, August 15 to 19, 1960. | ' For many years employer had operated a mill in Brook- lyn, New York. In 1959 it opened a plant in North Wal pole to assemble various types of ladders from magnesium extrusions it produced in Brooklyn. Active ope ration com menced in Mareh 1960. .At this time the workers were- inexperienced. By August 15 there were some twenty- four employees in the production and maintenance depart ments, having varying seniority. The morning of that day the largest of. the three Brooklyn extrusion presses suffered a serious breakdown, forecasting a production shortage of several months. North Walpole was informed by telephone and advised to make plans for a reduction in personnel, Word of the Breakdown spread through the plant. That afternoon one Belden, a production employee. telephoned the union, and on Tuesday and Wednesday morning eighteen of the eniplovees signed authorization Jia o Appendix kh cards, Wednesday noon the union organizer and a eom mittee of the Guployvees, with Belden as chairman, ealled upen the plant manager and demanded recoznition. "The Board found that the organizer offered to show the eards, jut that the manager's reply was that he would vive an, answer on Friday. He agreed to take no step *interfere with the anion in the meantime. That aftercon the nian ager stmimened Belden te his offices amd TO ec legitimate inquiry about the union, and seme that was i: vitinate. He was informed that there would be ames ting of the connuittee at the home of one Smith, that eveming, That evening he twice drove by Smith's house. Wis testi mens as? te his reagyis for deingGso was net specifically contradicted or imypenehed. On Thursday morning the manager engaged in what the trial examiner found to be highly Mmapereperr Neves gins union activity. Thursday afternoon he disé¢harged Belden anmed Smith, ane lai ott four other eonnipelers eres, hive of these six were Members of the committer. That scare das the union filed a petition for certifieation. Om Friday the manager stated that sinee the union had recuested: an election, this ~was its “answer.” and that lu® would’ net recognize the union without the election. The: tamten then filed the present charges, distuissing the certifieation pre coodings. . ‘ After a thtetday hearing the trial examiner found that the employer had discouraged membership in the union in Violation of section S(a)(3). had refused te bareain in ae cordance with-S(ajyi5). and had engaged in unfair laher practices within the nieaning of seetion S(aycti. Me ree ommended an order compelling the emploved te bargain with the tinion and to reinstate the two discharged and . 23a A ppendix BR four laid-off employees with back paygy The Board affirmed all findings, exeept as to Belden. it us the employer criticizes many of the findings and all of the conclusions, and particularly attacks the order that it should bargain with the union ‘in the absence of any prior certification. The union complains because the trial examiner’s finding in faver of Belden was rejected by the, Board. ; '. The underlying basis ‘for the trial examiner’s decision Pe was his opinion that the plant manager's testimony was wholly unreliable. In large measure we are not unsy npa- thetic with that determination, but we believe that the ex- aminer allowed hix not unnatural distaste to get the better _of his judginent. This caused him to disregard what seen, to us inescapable facts,.and to .make findings either not’ supported by the evidence or in some instances .contrary thereto. However, we cannot at all accept the employer's vontention that it engaged inno improper activities. Te do so we would have to say that the Board, as matter of law, must treat statements Such as there will be no merit raises if the union comes ineand instead of monthly raises a single raixe once a year which will be five cents, and that the plant wo Id operate only ‘sight months instead of twelye, as benign. observations of fact. There .is no evi- denee that they had any faetual basis. The employer over- estimates our credulity." —_ ; 1. The employer seems correct with respect to one small matter of no particular importance except that it was reflected in the pro- posed order. We agree that the finding of “surveillance” of the Weslnesday evening meeting was something blown up out of propor- tion. The examiner. found that the manager “drove slowly by Itwice], each time loeking in.” No one testified he looked in. One of the two witnesses who saw him pass stated that he appeared to he “just driving “around waiting for somebody.” This was not evi- ° , Sth Appendix B : ; Furthermore, the Board was warranted in finding that the manager's refusal te recogtize the union on Wednes day, when it offered the card cheek, was a violation of see- tien Scape). NLAB ov. Hamilton, VW Cir, Was 2200 Bek 492: NLRB VV. Scott d Scott, 9 Cir WT, 24 Fiz 926, It did not ceise. to boeve-eodanee stich lay the union's filing al certification petition, or by its*dismifsing it. NLRB vy. Kobrit:, 1 Cir. SSI, 198 F.2dS: NLRB vy. Sunrise Lumber A Trim Corp. 2 Cin. WT, 241 Red 620, ccrt, den. 305 U.S. SIS. ten bona fide doults by the employer, which - the Board did-not find, that this was a “true” majority, rather than the result of a “whirlwind eampaign” which would not be the final, considered view of its employees, aire not the sort of doubt» that wenulkd peertnit au tailore to deal in the meantime. NLRB vy, Lorrorn, + Civ, WAI, V2 Reva 25. This latter elatn i particularly bellow coming from an emplover whe sets upoa whirlwind eampaign of its own. comprised of substantial unfair labor practices. In the faceset along history of decisions tw the contrary, the employer takes the position that ordering it te barsain witha union which hax not been certified or recounized, as. matter of law thwarts, rather than effectuates, the policies of the Act... It is true that in International Ladies Gar- moult Pasherd Ini \. NLRE. W961, 06 TUS CTBL. the “court held that it was an unfair labor practice even in good faith to recognize and hargain with a. union whiclr- dence of apprehension, There was ne contraliction of the testimons that this was a street on which it w: is natural to be. In the case which the Board cites, VNLAB v. Verniont American. Furniture Corp.. _2 Cir... 1950, 182 F.2d 842, there’ was a substantial surveillance which the Board found was for the purpose of discovering the identity of the active employees. . ere the manager had already been given this information, On the record before us there is ne reason for interpreting this casual passing as surveillance, a > Appendix: B e. proved not to represent the majority of the employees. In that case, ax in this one, there wax no competing union. but the court held that the-actions of the anion and the _conpany deprived the employee majority of its right not to be represented. There ix a substantial factual differ. ence here where eighteen of the twenty-four employees had signed cards. The employer's seeming solicitude for those who wanted to “refrain” from unionization,“based on an’ unproven suspicion that a majority would conclude todo: xo after they had realized their preeipitancey, cannot change black into white, It has been held that even where the employer’s suspicions afterward prove correct, in that the anion lost its majerity without any other mducement or activity on the part of the employer, the Board may still remedy the employer's unfair haber practice in ini- tially refusing to bargain with the displaced union by an order to do so. NLRB vy. Armco Drainag & Metal Products, luc. © Cir WIS, 2200 Fi2d STS, cert. den. Mw IS. SOS: NLAB ve Stow Mra. Ca.. 2 Cir. 1054. 317 Fite HM, cont, din: 348 _ 1S. Mid bat ot, NLRB ov. Adhesis: Products Corp. 2 Cir, Vi, 281 Ftd st: NERE y. Supertor Fireproof Door d Sash Co. 2 Cir. Wil, 2se Pid 713. Mis ix part and parcel of the doet rine that the employer Wust be gewerned by the situation as it exists at the moment. Of. International Ladies Garment Workers’ Union v. NLRB, supra. The employees’ right ta refrain from joining any union cannot be twistes! inte a right on He part of the emplover to say, when they de join, that they did not really mean it. Cf. NLRB vo Geiqy Co., 9 Cir., 1954. 211 Ftd 553. 1 fortiori, the eniplover exinnet avoid an order to deal with the union hy fsserting its los of majority when that Joss (if it occurred at all) fo ZI o “ maining e¢om 2 9 :) ; Appendix B z unfair labor practices by the employer directed to that very end. NLRB y. Hamilton, supra. : __, We turn to more specific fiatters. The trial examiner - found that the discharges of Belden and Smith on Thurs day were unfair labor practices. The finding ax to Smith was fairly warranted, and requifes no diseussion. The Board: reversed,as to Belden. We will treat thix subse quently. - Spine wv examificr found that the lave? of three of the re- ittee members and one other was a further unfair labor practi¢e. The employer counters by saying. that these layoffs were because of anticipated loxs of Nncasier” material from the Brooklyn mill due to the breakdown of the extrusion press, and that each of thesé fou employees “was the junior in point of service in bis respective depart. ment. It was known-Trom the beginning that repair of the press would take months. In point of faet it required nine. Ax we read the trial examiner's repokt, recognizing his obligation to weigh the employer's explanation, NLR vr. Whitin Machine Works, 1 Cir. 1955, 204 \F2d So, he did so by meeting it head on by a determination that: ne ayeffs were necessary. He gave three reasema The first wax a certain difference in’ testimony” between \the North Walpole manager and the responsible official in \Brooklvar. Thix difference existed. Possibly it was relevant. to the exatt timing of the layoffs, but we see no other rélevaney. The examiner's finding was not rested on the timing. 2.) Af there had been a finvelinage Ici se! upon the employer's choosing . 7 . s° that particular Thursday, we might have supported it. However. such a condusion would tiave invelved dispated: questions of fact. We will not resolve them ourselves. Consequently, we cannot sup: port a finding lased on another-gronnd simply becatse it could have rested on this une. Furthermore, this change of ground nnght affect ga Sa Appendizc B Secondly, the examiner “noted discrepancies in the figures relating to previeus shipments from the Brooklyn plant. Even resolving all dixarepancies against the employer does not, in our opinion, support the examiner's conclusion, Thirdly, the exaniiner found that it was “admitted that -there was_no reduction in force at the Brooklyn plant.” Even were this true, we would see no possible relevance. However, there was in fact no such admission. On the contrary, the undisputed evidence was that in lrooklyn . there wax one layeff, and that five employees and two ALOT, isors —_ were not replaced. But of paramount importance, iggtoPed by the examiner, ix fle faet, that in ad- dition to the two discharges and four layoffs at North Walpole now in question, four othér employees left and were not replaced. The finding that production did not warrant any layoffs, not only is without supporty®but, is totally contradicted. Whether the. layoffand his discharge bad been less than honorabla, possibly dishonorable, Hy bet ‘blank the answer to the question, “Records of all arrest (date, place of arrest. ofty mse charged, disposition of case) :” although agreeing that “any misleading or, any the relief: If these men, lacking seniority in their jobs. were about to be laid off legitimately, anyway, they are not now ,entitled to full ‘hack pay. Cf. NLRB v. Corning Glass Works, 1 Cir., 1961, 293 F.2d 784: : « it ix not altogether vasy to acres with the Board's qed | language. In the light of the discharge of Smith it ee N _ Seon reasonable: te infer that Belden would have fevvo-g) ofits charged even if no lezitimate reason existed. Om the other hand it hax been held: that some valid re Asis aire ser stron ax to override any other, NLRB vy. Miele f pd Paper Corp., & Cir. 1900, 279 F. Od 660: bat of. NLRB y. James Bs Actually, the manger te tified in great detail that he learned’ “af the criminal record on August 16 gud made np bts snvisied conn theet date that Belden should be discharged?” Phre-putpuce of thi testimony was to support the claim that the discharge was inceniected vith the union's activities, which-were unknown on August {6 The comm- plete falsity of this testimony was established by the te sphere comngeny 's records. ~ rd \ °* (3) to refuse to bargain collectively with the rep resentatives of his employees, subject to the prove sions of section Ya)”. . * * - Section 9, 29 USC $159, 49 Stat. 453 as amended by 61 Stat. 145: z stint Appendix C “(a) Representatives designated or selected for the purposes of collective bargaining by the major- ity of the employees ina unit appropriate for such purposes, shall be the exelusive representatives of all the employees in such unit for the purposes of collective bargaming in respect. te rates of pur, wages, hours of emplovinent, or other egnditions of eniplowine nt: tg as “PE * . * “e)(L) Whenever a petition shall have been filed, in accordance with such regulations as tay be pre- seribed by the Board. _ (A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial nuthber of em- plovees (i) wish to be represented for collective bargaining and that their eniployer declines to ree- ognize their representative “as the representative defined in section O(a). or (ily assert that the indi vidual or labor organization, which. hax been eerti fied oras being currently recognized by their em plover as the bargaining re Presentative, ix ne iggild i representative as-defined in section 9(a); 0 (B) by an employer, alleging that one Or more individuals of labor organizations have presented te hin ct claim te he recognized as the repens ntative defined in section Oa: ; the Board shall sn seh petition’ and if it hax reasonable eause to believe that a question of representation siffectinng commerce exists shall pro. Vide for an appropriate hearing upon die. notice, Such hearing tay be comlblucted by an officer or employee of the resional offiee, whe shall not make any recommendations with respeet thereto. Tf the ave | ; . Appendix C , me Board finds upon the record of such hearing that such a question of representation exists, it) shall direet an election by seeret ballot and shall certify the results thereof... » Seetion 10, 20 USC) 160, 49 Stat. 455 as amended -by 61 “Stat. 146: ; “(a) The Board. ix empowered, as hereinafter provided, to prevent-any person from engaging in any unfair Jaber: practice (listed in’ section 8) affecting commerce ad * tad e “(ey .2. . Hf tipen the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has en caged in or is engaging in any such unfair labor epractice, then the Board shall state its, findings of: faet and shall issue and cause to be served on surh 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) baek pay, as will ‘ (Veetunte the policies of this Act. . . . ee “(e) The Board shall have’ power to, petition any court of appeals of the United States. or if all the courts of appeals to which application may be made . are on vacation, any district court of the United States, within any cireuit or distriet, respectively, wherein the unfair. ‘labor practice in question, occurred or wherein such person resides or trans- acts business, for the enforcement of: such order aes 38a : ' « Appendix C and for appropriate temporary relict or restraining order, and shall file in the court the regord in the proceeding, as provided in section 2112 of title 28, United States Code. Upon the filing of sue ‘h peti- tion, the court shall cause notice thereof to be served upon sucly person, and thereupon shall have juris- diction of the proeeading and of the question deter- mined therein, and ~hall have power‘to grant such temporary relief or festraining order as it deems just- and proper, and to make and enter a deeree enforeing, modifying, and enforcing asso modified. or setting aside in whole or in part the order of the Board. No cobjection that has not been urged before the Board, its member, agent, or agency, ‘shall be considered by the eburt, unless the failure or neglect to urge such objection shall be exeused hecause of extraordinary circumstances, The find- ings of the Boar! with respeet 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 evidenc@e-and shell show to the satisfac- tion ef the court that such additional evidence is -material and that there’ were reasonable grounds for the failure to adduee such evidence, in the hezr- ing before the Board, its member, agent or agency, the court may order such additional evidence to he’ 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 ques- tions of fact is supported by substantial evidence on the record ‘considered as a whole shall he con. elusive, and shall file its recommendations, if any, oni Appendix C ‘ for the modification ow setting aside of its original ‘order. Upon the filing of the record with: it the jurisdiction of the court shall die exelusive and its judgment and decree shall be final, execpt that the sume shall be subject tor te \aew by the appropriate United States court ofsappeals if application was Inade to the distriet court as hereinabove provided, and by the Saprene Court of the United States upow writ of certiorari or certification as provided In section P24 of tithe 2s", --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0252%3A2. Public record. Not legal advice.