Petition for Writ of Certiorari — Sperry v. Florida ex rel. Florida Bar

eee Sg JOuN +. DAMI'

in the /

; — Court of the Hwited States

7 Ocronern Tria. Lalas |

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NEW ENGLAND TANK INDUSTRIES. <.

PETITIONER S35 .

a | . v.

N ATION AL‘L ABOR REL ATIONS: BOARD,

es RESPONDENT.

ey,

PETITION FOR, WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR T@E FIRST CIRCUIT

4

* \ Vite heme Ls

VERNON (. STONEMAN. :

Attorney for Petitioner —

44 School Street.

‘Louis CHANDLER » Boston, Massachusetts o

Aan S. MILLer ;

STONEMAN AND CUANDLER ‘

Of counsel © é

Blanchard Printing Company. Boston Mass — Law Printers

:

INDEX.

. ed oe —% mae Pat "age

“Opinion. Below * fe

a“ — ae ° i co .

Jurisdiction

Questions -Presented =r j Bae

Statutes-and Regulations. hivolved

Statement of € ase

ets amr STATUTE

29 USC Section .188(¢) -

wo te lo to

i

Reasons for Grantiug*the W rit ; f 4

Conclusion ; ee eae

— A—Cire init Court of Appeals”

aes Opinion of — 2%, 136 8

Apper ix B—Sectiou He), '

National Labor Relations Net 19

Appendix ( ‘__Seetion 102.46 , ; :

National Labor Relations Board Ré@les —

‘and Regulations and Statements of Pro-

coduré, Series s i FEES ae

Cineniose . ;

‘ Cases ‘

A-O. Smith C orporation, Grant'C ) Plant, 132 N1, RB

No. 9 4 6

* Jeffrey: DeWitt Tusulafor €o., v. NLRB: 91 F* 2d 134

(CA 4) . eh eee Pete | 5

Tron Moulders Union ¥. Allis Chalaets-7 100 F 2d

> 45 (CA 7) | ie

~- Marshall Field and € ompany v. NLRB, 318 ES 253

~ NLRB v. C heney ‘Lumber Co... 327 US 885

“Point Réyes, 110 F 2d 608 (CA 5) > Darts

. West Coast Casket Company, lic., 97 NURB 820, en-

forced 205 F 2d 902 (CA 9) : 6

Ss

ee Trisden ; ar

Pn: Lyrtons

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Pe Se ne : ects’ , F

W240b) of the Rules and EC

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Doane, Series Specie 1

Statements of Procedure. Nationzl Labor Relations’

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NEW ENGLAND TANK INDUSTRIES, INO

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NATIONAL LABOR-R 7 RD.

bee RESPONDENT, | Zz

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A hte

PETITION FOR WRIT OF CERTIORARI TO THE

‘ UNITED STATES COURT OF APPEALS

‘FOR THE Fl RST CIRCUIT

ages Sa

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New Enganld Tan Industrie ‘~, Ine. prays thata writ of

ce rtidrari- ‘issue to Yeview the judgment of the U nited States. -

Court of Appe ay

for the First (‘irenit.

Opinion Below t

. Wt , Rs

The Opinion of the Cireuit Court is reported at 302 F.2d-

273. A copy of the — ix appended hereto. — Appendix

A infra. “e

ben

—_— a ‘ . . 3

“ -

—— 4 es i : . ”

brie . ies s: : ve ee

1 gga ne os ‘Jurisdiction

The Judgmént was entered on Mprit®7, 1962. 2A motion

fer rehearing, filed on May 14, 1962. was denied on May

Ls, 1962. The jurisdiction of ‘the — is invoked under

, 62 Stat. 928, {

1+ Questions Presented

1. Did the Cirenit Court err jim de¢lining to consider an

objection which thongh raised at the hearing before the

Trial Examizier, was not again specified in the Exceptions

_ * to the Trial Examiner's Intermediate Report!

* 2. Are individuals, who are offered employment but he

decline. to: aceept the offer, preYerring to withhold thpir

- services until others are given a similar opportunity, unfair*

labor practice strikers? : ; :

* Statutes and Regulations Involved

Statute Invoived ae , . ae

_ Portion of Section 188(c¢) af Title 29 of U.S. Code which

reads: “s «lie ‘. ;

" “No objection that has noi been urged before the

‘Board, its member, agent, or agency, shall be con-

sidered by the Conrt, unless the failure or neglect to

urgé such objections shall be exeused because of extra-

- ordinary cireumstances."’ (Text of complete section

~ set out in Appendix 9 infra:) 7 ; ee

Regulation Involved © ; .

Section 102.46(b) of the Rules and Regulations and State- -

ments of Procedurewf the National Labor Relations Board,

.’ Series 8, page 15: : :

Ny matte or net ink luce | yn y Statement of exce p-

tims niay the ‘reafter he urged be fore the Board, or-in -

any further proceéding, * (Pext of compile te section ie

“102.46 Got out in Appendix © witre.)

pA Scions of Cise bale

: : A @

3

lL On ‘November 10... £960. the. Re ds Director: ‘of the

F irst Region of the National Labor Relations Board issned

il complaint Ar Me. the Pe fitioner with violations of See- :

tion Sta) (1) and (3) and ‘Section (1) ‘of the National

Labor Relations ‘Act as amended by refusing or failing: 19

employ certain “individuals for the reason that the 'v joined

or assisted the Union or engaged, An-other concerted activi-

ties for the purposeot coer ‘tive bargaining or other mutual

aid or protection. pea se ‘

er hearing was held before a Trial Examine avof the Na-

“Aional Labor Relations Board on Decenrher ib and 16,- 1960.

At this hearing, Attorney for ‘Petitioner nought to im-

peach and attack the credibility of a kev witne ss of the Na-

tional Lalior Relations Board's General ( ‘ounsel by ¢ross-

examining him concerning his prior conversation with a

National Labor Relations Board agent about: the same sub-

ject matter cove ‘red itt his. testimonry® iyr chief. The Trial’

Examitier interposed Jiix own objection, stating that what

the witness may have said to the Board, agent. was quinn

portant and not in issne. Connsel for Petitione i strenmu-

— ously objected to this ruling. 4

Petitioner inadverteutly failed to raise this question in

its Exceptions to the Trial Examiner's Infermediate Re--

port. For this reason the’Cirenit Court refused-to consider

"- the questioy of w hether the Trial Examiner had committed

prejudicial error.

2. The Trial. Examiner in’ ‘his Intermediate Report made |

; o.

'- the finding that three indiv idnals who were offered emiploy=

*

.

as Ss .

ment by the Petitioner but who dectined te Tecept the offer,

preferring to withhold ‘their -ervtees until her persons

who never had dese quiployees Gf Petitioner were given a

similar opportunity, were unfair labor practice Strikers.

biotean otal ‘excepted to The finding. but the Board yphe Ad

it. “However, there was a strong dissenting opinion wrifte "

by a member Gf the Board? ze

Upon the Board’ ~getitiogs. for enforcement, the United —

States Court of Appeals for the First Cirenit under the

authority of Section 2112 of Title 2s of the United St: “tes

Cade.enforce it She NLRB¢s order.

Sa gat Reasons for Granting the Writ :

1. The Cirenit Court bas constrned Sestion 10(¢) of the

National Labor Relations Act in such a way that it is in

couttiet with the ap plicable slveisions of this Court, In)

Marshall Fiekl aid Company S. NERB, 31s TS’ 253, the

‘Court says that it is sufficient if at any sfage of the pro:

ecodings before the Board the objection was raised. NLRB.

ve Chengy Lamber Co... 327 U SPSo is in-aeccord. In both of

these cases, ‘the shivetlonis were not to rulings made |

the Trial Examiner at the hearing; but rather to Sadie!

in his Intermediate Report. Therefore, absent exceptions, :

there Were no means by w hich the Board could be apprised

of the objections. - In the. instant ‘Case, however, the ob-

jection was raised and strennotisly argued before the Trial

Examiner (Record Appendix, pp. 216-218) and the Board

had the’ record before them when considering the Trial

Examiner's Recommendations. It ix alxo important to note |

that under Board practice, parties are allowed dutomatie

exceptions to all adverse rulings made -by thé. Trial Ex-

aminer at the hearing. Therefore, the Board Was apprised,

. of Petitioner’ s objection aid the requirement of Section -

" Boe) as construed by this Court rh us been Mit.

a

With respect fo the Board's regulation that tne matter

not inchided ina staten@ Put of exceptions may thereafter be:

urged before the Board. or in any farther proceeding” Wi

Petitioner asserts thit it goes hevoned the’ “scope of Seetjow

Wie) as construed by this Court amd is of no effeet./- AH

that ix required is that at ty sade of the proceedify the

objection be raised. »Petitigner del iv facet raise the ob

jection at the heaying befare the Tri: ‘Examiner or the

‘Board. . Pe , | ;

Th PL a the paliey biihiniel the requirement af Wiv)

is to give the reviewing court the benefit of the’ Board *~

é .

‘presumed ekpertise iy the field of labor Jaw.” It as im-.

portait to ote that the objec! flow ipquestion-in the tnstanut,

Case is not me.oft labor law but gather, one involving the

law of evidence, an aren in Which the Board WOSNENSEN We

expertiag and in which the ¢ ‘out ix far better Verse,

2. With respect go the Cirentt Court's determination that

were unfair labor practice strikers, Petitioner asserts that

an, important question of Federal Labor. Law: has bern

raises which has not, Reon, mat “hould be settled by “this

( ‘ourt.

Ina ruses opinion, NL Ks sscuiier Rodacréstatd:

: 4

’

' the three ‘individuals who refused an offer ot employment :

ft hax ‘tie heer pecsbiitlind iny the law? in com

mon understanding and heretofore the Board has

‘3'In Sebel: DeWitt Insulator Co. v NLRB, 91 F2a 134 (CA 4)

and Iron Moulders Union ~ Allis Chalmers’Co., 166 F2d 45 (CA ae

the courts defined a strike as a “cessation of work: by employees i in an

effort to get efor the employees more desirable ternis;” and in The

Point Reyes, 110 F2d 608 (CA 5), the court found that the term

“strike” contains two essential ingredients. namely, “Where must be

thé relation of an employer and empleyee, and there must be a quitt-

ing of work.”

4 Webster's New International, Unabridged. Dictionary. See ond *

Edition, defines 2 striker as“a workman’who is on strikes” and defines

a strike as an: “Act of quitting, work; specif., such ‘an act done by

. 4

Ps

a

ever held te the contrary. that to be considered

striker one must be an- a of the employer

¢ utist Whom the strike is directed, and there must be

‘A cessation of work by the employee. Under the facts

nothis ¢ase, it is manifest that, neither, of these es-.

uae elements are present with respect to Webster,

Sarnacki; and Roix: |

-**Here, hy rejecting the Responde it's oer of em.

ployme ntand by thereafter failing to‘report for work

on October 1, Webster, Sarnacki, and Roix never be-

game employees of Respondent. «Having failed to

establish an e mployce relationship, it is clear that the Vy

could not éease work or withhold their services’ within

thie. plain meaning of the term * striker™, Accord:

ingly, having failed to meet those requirements neces-

sary to he considered strikers, I am unable to deter-

mile’ and the majority does not explain, how their,

subsequent picketing,.even if in ‘sympathy. With those

. who were protesting Respondent's unfair labor pis

"tices, somehow conver ted the status of Webster, Sar-

nacki, ‘and Roix, to that of unfair labor practice

strikers.” | | a

Petitioner believes that Board Member Rodgers has cor-

rectly stated the Jawsand that the decision of both the

Board Ihajority and that of the Cireuit Court is contrary

to law, =

*

-

* mutual understanding by a body of ‘indeaen: as, a means of refusing

compliance with demands made on: their employer; all stopping of

work by workmen in order. to obtain or resisting a change in con-

ditions of employment:”- Black’s Law Dictionary defines a strike as:

“The act of quitting , cork by a hody of workmen for the. purpose of

coercing their? employer to accede to some demand thev have, made

upon him, and which he*has refits: d ~ ,

5 In ‘all those cases where the Board has found certain sympathy

strikers ‘to be protected under the Act, hord was a clear employee-

employer relationship existing. See e. "A. O. Smith Corporation,

Granit City Plant, 132 NLRB No. 9; West Coast Casket atid

Inc., 97 NLRB 820, enforced 205 F2d 902 (CA 9).

. granted.

a

kor the reasols net forth above, Pak respectfully on

mitted that this P etition for aeW rit of (! ertiorari should Te

.

ne

Attorney for Petitione vr;

. 44 School Street

Se ;

Verxox .

Locis CHUAN ER

Aan S. Miner .

_STONEMAN axp HANDLER

‘ - Boston, Massachusetts .- *

OF counsel’

Appendix A

“t N NIT ED ST. ATES cou RT OF APPEALS

a or the First Cireuit

aan

~~ No. 5920.

NATIONAL LABOR RELATIONS BOARD,

_ PETITIONER, \

_ ae a

NEW ENGLAND TANK INDUSTRIES, INC..

- RESPONDENT.

_ ON PETITION FOR ENFORCEMENT OF AN. ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

_ » [133 NLRB.No. 25]

Before Woopsury, Chief Judge, and Hartican |

and ALDRICH, Circuit Judges.

Samuel M. ‘Sislier, Attorney, with whom Stuart Rothman, one

Counsel, Dominick’ . “Manoli, Associate ‘Génerat Caunsel, Marcel -

_Mallet-Prevost, Assistant General Counsel, and ile i Thackery,

Attorney, were on brief, for petitioner.

George H. Foley, with whom Hale ‘and Derr was on brief, for :

respondent, . : ;

- OPINION.OF THE COURT.

April 27, 1962.

_ Hartican, Circuit Judge. This is a _petition of the Na.

fienal Labor Relations Board pursuant to Section 10(e)

_of-the National Labor Relations Act, as amended, (61 Stat.

136, 73 Stat. 519, 29 U.S.C. Sec. 151 et seq.), for enforce-—

ment of its order issued against. the respondent, New Eng-

land Tank Industries, Inc., for alleged unfair labor prac-

' tices. occurring on a government owned gasoline pipeline

between Searsport and Limestone, Maine, which respondent

opefates and protects. z

In agreement with the ‘Trial Examiner, eae Board found

é oe

that respondent unlawfully refused to employ or reempioy *

forty-nine employees of its. predecessor operator on the”

pipeline—the F. H. MeGraw (¢ ‘ompany—because they were

members of one of the two charging unions.’ The Board

also. found, that respondent unlawfully refused to reinstate

Ahree additional employees w ho had ‘accepted employment

(we who then struck in pfotest against respondent’ s Tre-.

fusal to employ the forty: -nine employees.

Respondent, a Massachusetts corporation, with affiliates

in New Ilampshire, Pennsylvania, -California and South

Carolina, operates pipelines and .petroleum tank farms in

connection with the transportation of aviation fuel and

related products.- In August, 1960 as a result of respond-—

ent’s bid; it was succéssful in obtaining the contract for the

operation of a> two hundred mile long pipeline between

Searsport and Limestone, Maine. This government owned

facility Was used to supply jet fuel and related gasoline

. products to two Air Force bases in Maine, ,

The contract for the operation and protection | of “the.

pipeline is negotiated on a year-to-year basis. During the

contract year October 1, 1959 to September 30, 1960, the |

pipeline was operated by the F. H. McGraw, Company.

| McGraw had in its employ all of the employees involved

here, many of w hom had either worked continuously on the

"+ pipeline since it Was first. established in 1953 or had severa!

years of employment experience on the operation. The two

unions involved in the present action had first won recogni-

tion as agents for the pipeline employees in 1958.

When the MeGraw contract ended and the respondent

assumed responsibility for the operation and protection of

the pipeline, all but three? of the former McGraw-employees

1 Independent Union of Plant Protection Employees in the Electrical

and Machine Industry; and Oil, Chemical &* Atomic he aaah Inter-

national Union; AFL-CIO, Local 14-366.

2 Their special status will be discussed infra.

10

Ry

tis

. had been refused reemployment by fhe respondent. , The

reason why these employees. were denied employment poses -

the principal issue in this case. The charging unions con-

tend and the Board so found that the former workers were

denied employment ‘for. reasons relating to* their union

‘. men@rship and activities, and that, consequently, respond-

ent, violated Seetions S8(a) (1) and (3) by refusing to em

ploy them. The respondent, om the other hand, contends

that its decisionnot to hire the vast majority of the MeGraw

employees stemmed from a pattern of unexplained gasoline

losses which had oceurred onthe. pipeline ingjie months

preceding the expiration of the MeGraw contract. It argues

that the extent of these losses could be attributed only to

mismanagement or pilferage. In’the attempt to remedy

this situation, respondent maintains that it decided to pro- .

ceed with.an entirely new erew.

We must determirie whether or not substantial evidence.

supports the Board’s conelusion that the respondent’s ac-’

tions were primarily motivated by an-anti-union animus

for it is well settled that ati employer who discriminates

against applicants for employmént because of their union

membership or activities violates Section 8(a) (3) and (1)

of the Act. See, Phelps Dodge Corp. v. Labor Board, 313 —

U.S. 177, 182-187 (1941); Piasecki Aircraft Corporation v:

NLLLR.B., 280 F.2d 575, 583-584 (3° Cir. 1960), cert. denied,

364 U.S. 933 (1961); National Labor Relations Bd. v.-

Lamar Creamery €o., 246 F.2d 8, 10 (5 Cir. 1957; National .

Labor Rel. Bd. vy. Textile Machine Works, 214 F.2d 929,

932 (3 Cir, 1954). : | :

The principal evidence supporting the Board’s finding

was supplied by testimony of several of the former em-

ployees {ind by ’a certain John Hayes, a quality control

inspector at the Loring Air Force base in Maine. All of

these witnesses testified to certain colloquies which each

had with the respondent's assistant superintendent, Gordon *

V. Atwater, concerning respondent's hiring policies.’

The first of the former employees to testify at the hear

ing was Gregory Roix. He testified that after asking At- :

water Whether the former employees would be rehired, \1 , wa

water told hin that the **Conimpany ” [hady bid) so low they

couldn't afford tu pay the union wages."* Roixy also testio ~.

fied that Atwater had adverted to the fuel losses but«hiad

concluded the conversation by stating ‘that after Septem-_

ber 30 that there would be no union on the anlae? because

the company Was against unions.’

Raymond Kilgecomb, another MeGraw employee, related :

a conversation whiech‘he had with Atwater in the latter’.

offic, *°Q. MIL right. Will you tell the Trial, Examiner

what Mr. Atwater-said t6 you and ‘what you said to him?

A. Mr. Atwater’ told us that we wasn’t to be Tr a

asked him whyt -He-saidthe new. company bad taken the |.

bid so low that they couldn’t pay the union wage, and thes,

wanted to break the union; and he said they was going to.

The exeuse they was-using was the excessive loss of gas.’

Steward ‘Stockford, another witness for the Board, testi.

3 At oral argument re sponde m raised the questior Z whether At-

water's statements ‘could be’ properly attributed to. the Company as

reflecting management policy. In short, was he-a “speaking agent”

whose authority was-such ‘that his statements could be attributed to

his principal. Cf. Restatement of Agency 2d, § 288. We believe that

this question must be answered in. the affirmative. Atwater was the

assistant superintendent of the entire pipeline operation. Though

respondent in its answer to the Board's complaint denied that Atwater

‘had any authority to hire, it admitted that he had authority to recom-

mend the disciplining of employees anf 14 recomme ‘nd the adjustment

of grievances and to that-extent could be deemed a “supervisor” within

the meaning of Section 2(11) of the Act. Moreover, Erwin, the

respondent's superintendent, testified that at the time he hired Atwater

he discussed the Company's hiring policy with-him. Most significantly,

Erwin testified that he expressly delegated the authority to hire to

. Atwater, Consequently, we believe that there -is ample evidence to

show that - Atwater’s statemeats could be validly attributed to re--

. — nt as bespeaking company policy.

es Sere

lied to a conve rsation which he. had with. ‘Atwater’ in the

presence of Hayes and Edgecomb.” “qQ. Will you tell the

Trial Examiner what -was said at this time and by whom!

A. Weill, Mr. Atwater said that we were not going to li

rehired by the new contractor, and he’ said they were going

to hire all new men, that they didn’t want any unioif men

there, that they were going to try to break the union.’*

John Hayes, the Air Force quality control inspector,

testified that Atwater had originally told him that he

‘planned on rehiring all of the present employees if ‘[he]

would be allowed by the new contractor." There ‘after,’ -

Hayes was told by Atwater that the reason that he wasn i, 2

* permitted to hire the former MeGraw émployeex-was * Be.

cause they were mie Mbers of the Py niow and were on union

scale."* Hayes alxo testified that he was told by William

Erwin, the respondent's superintendent, that “this {the

- pipeline operation] was ‘going to be a non-union shop on

the first of October.""* (The date. on which respondent

succeeded the MeGraw Company).

As noted previously, it-was the r respondent ‘x position

that its decision not to hire the former employees was based.

<olely on the fact éf the gasotine losses which had occurred

“on the pipeline during the ‘MecGraw.management.

Relative to this defense, the record indicates that. re.

that loxses had

spondent had receiv od some information of a general r: ature.

curred during the MeGraw operation.

~ However,:as the Board potnted out, ‘Not until after the —

respondent had openly made it clear that none of the em-

ployees on MeGraw’s payroll] would be hired by it, did-it -

come inté possession of actual figures of so-called ‘losses’

4 We recognize that, by itself, this remark could scarcely be held

to be invidious or violative of the, Act. It is, at worse, an ambiguous -

- statement whose coherence can only be supplied by the context. of other

facts and circumstances. The respondent would be within its rights

“to use all law ful means to render the pipeline a non- -union operation.

Whether its activities were so circumscribed i is the question.

ad

More ~ighificantiy, two vovernment inspectors who testified

on this point, stated that losses were in faet * ‘pormal”™” anid

were reasonably to be anticipated as ay result of the in

Nuenee of var lations in te Miperatures, evaporation and tink

leaning and mixing: Moreover, the record is barren of ans

evidence that the government itself raised any question i-

tu the **losses"* or that MeGraw Was.in any way penalized

tor them. ~The government _Jnspectoy testified that Nene ub —————

perl

the Josses were regarded as. unacceptaje-at the ceiitral

records keeping depot ‘of the Air Koree\ at Middletown.

ing contractors operating the pipeline at issue, and for it-

Pennsylvahia, Finally, Superintendens/ Erwin admitted:

that he was fully aware thai all re staf of losses submitted

during MeGraw’s operation of the “pipeline had been ap

proved hy the Air Foree. “ a

With the evidence this in. edui poise, we cannot. say that

the Board's findings that re&Spondent discriminatory re

fused to hire the former MeGraw employees-lack substantial

evidence, National Labour Relations Board y. Walton Manu-

facturing © umpany, “ind Loqanrdh Pants © company; Na-*

‘tional Labor Relations Board y. Florida Citrus Canners Co-

operative —U S.— decided April 9, 1962. Respondent ad

mitted that it was “normal procedure’’ both for the pigeed-

-self at its other operations, to retain the personnel of the

prior contractor. Despite the presence of a-pool of ex-

pertenced workers, respondent went to considerable Jength

tu replace the union employees with’ entirely new worker-

_—most of whom had no previous: experience on pipeline

operations. Indeed, to train the new. workers, r respondent

rea some ‘employees from as far away as it<

Californian operations. Finally, we note that all af re-

~spondent’s far flung affiliates function as. ‘‘non-anion"’

operations. Taken in ‘context, we believe that it can be,

_fairly said that if not the only reason, the substantial or

motivating reason for the respondent's refusal to hire the

|g

Ede

cP 4

former hpioyeés resided in the. fact that the employee.

were dnembers of the union. As such the respondent’

- action Glearly violates Section Sia) (3) and (1) of the Set.

, : ? = ; ; : é

Nu tewat Liheor Relations Bdov. W hitin Machine Warks.-

I 2 S83 OD Cie: 1993).

Both the Trial Examiner and the Board found that the

above eited statements of Atwater were attempts to in

timidate the applicants in the exercise of their statutory

rigits and that these st ateme ‘its constituted a. separate

Violation of Section sia) (1) of the Aet. Ve believe thite

on ther face, sue statements could well be ound to con

Situte interference, restraint and coercion with union: ae-

tis ity within the meaning of Section 8(a)(1) of tie’ Act and -

that substantial évidenee sapports the Board's findimgs in

this reward. See National Labor Rel. Bd. v. Saretilassman :

Shor Corp,, 20 I. aad 238, 242 C1 Cir. 1953); 8 Vational Lahor

hie lotions Board v.Brezner Tanning Co., 141 F. 2d 62, 64 (1

“Cir. 1944). .

The respondent did offer employment to. three of the

fortuer employees, Elwood Webster, Stanley Sarnacki and_

(iregory Ruix. The offers were made.to these men while the

McGraw contract Was still in force. .Each of she mien ac:

ce pied. the offer. ~ While there werg some ‘indications that

the respondent was, going to proceed with an essentially

hon-union crew, the record - inchicatis that the situation in

‘this regard was still fluid at the time that the offers were

tendered and accepted. Thereafter, on September 30, the

~ tinal day of the. MeGraw contract, a union organizer called

Roix and told him that it was now obvious that the three

men were to be the only employees, who would be hired by

the respondent, This call, through apparently devoid of

coercion, made it clear that the three men would have to

make a decision and either east their lot with the respondent.

or stick with their fellow. uniop members. The three chose

the lather and communicated their decision not to report

- P -

‘ )

P . , P

ti

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. © .-

\ for workto the respondent, making clear, atleast Noy ‘im.

* plication, that their reason for declining employment wa-

the respondent's policy cis a vis the other employees. The

record indicates that respondent understood why these in

dividyals were Withholding their services.-.

} > * 460 theese facts a majority of the Board found that the

subsequently, Ts v withheld thei serviges in protest

en had acespted respondent?s offer of employment and,

i

over re ~potide nt’~ refusal 16% Miploy their coworkers, © on

sequentiv, under the Board ’s view othe three empl avees

» becatie aifair labor practice strikers entitled to immediate

eHiployme nf pen their unconditional offer to aabginnddoni the

~ivike. ;

Ren pronededit ila this finding on the basis th: at the men

had yever ae ‘ially effectnated an eniployer Hiplower re

+; lationship with the. company and the ‘refore ceonld net

*stfike * againat it, Mess 3 oF «Mince

Vader the facts af, the instant, case, Wwe cannot weep

renee nt’s position. It i~ well settled that. the terns,

mutual aid’? anid tte oncerte “ld activities * as used. in Section

7 oof the Netetinelude the right lo join other workers ify

. quitting Work in protest. over the treatment of aco

employer, oF supporting | him in any other ‘grievance con

nected with his work or his employer's conduct.”” Carter

Carburetor Carp. National Labor R. ears 140 F. 2d 714.

FIN (SCir: 1944). ;

It is true that these men never actually reported to work

for respondent. Towever,. it 4s equally frue that but for

» the company’s Wieit, policies and acts they would have done

a incident + their-antecedent agreements. Moreover, as

the Board pointed out in its footnote 1 to its: decision and

order “These three workers were not strangers to respond-

ent’s oyerations ... They were, at the time of respofident's

“unfair labor practices, performing precisely* the same jobs

for the previous pipeline operator. They had applied for

‘

| cae, eee

continued employment, With respondent, and their decision —

to join the strike came only after ee had accepted

their application ‘and inyited them to work... Under the

ys wet, even Gm applicant for employment ix an ‘eniployer’ o

wit) ‘ Te pet oo ihe \’ eeVistades j ob fiting ise “rignini ition.

ise -l Toh COounthuctivn Ci.. N18. 15. 195, 200%: Phelps ,

Dodge (ar p.’. N: AP RB. 313 U be ree me : .

Weagree with the Board's determination in this vegard:

The oa had accepted respondent's offer and were actually

‘working on the pipeline on September 30. On October 1

ivy n respondent assumed responsibility for the operation

: le pipeline if they had reported to work, for however

/brtef a period, and then left in protest over the respond —

pe ent’ detivities they would clearly be unfair labor practice

/ estrikers, However, we perceive no significant reason why a

— slifferent- result should obtain here. On the present record

to insist ow a requirement that the three men physically

-report to the job hefore going-on strike would be little more

than an empty gesture. ; ‘

Finally, respondent urges that a procedural irregularity

' infected the proceeding before the Board. In argues that

the Trial Examiner committed prejudicial error in denying

- the respondent “opportunity tu impeach and attack the

og eredibiilty of a-key Board Wilstess, However, We do not

°

believe ‘that i is now open to us to consider thix ixsue.

Respondent filed an extensive list of exceptions to the Inter-- °

mediate Report of the Trial Examiner with the Board. The

point now assent fw Pines 1 he re. was not filed agong

these exeptions. & ; .

Section 102.46 of the Rules, and Regulations of the Na-

tional Labor Relations Board, promulgated under the Labor

Management Relations Act provides in pertment part that:

* Exceptions to THE Recor axb Proceepincs

“Sec. 102.46. Exceptions or supporting briefs, time

for filing; where to file; service on parties, extension of .

. f , — 4

-

?

fimeane Ne ct of failuré to ime lude matter Wier plions;

Pt further period a> thi Board may allow, from the date

ol The serriee at the vo ther tiaentterr Nu tie cise to the

_ Board,..”.-. any: party may... file with the Board in :

. Washington,DC, seven copies of a statement ir writ

. ing setting forth exceptions to the intermediate re port.

and recommentled order orto any other part of the

record or proéeedings (ineluding: rulings-upon all mio.

Hons or objections), together with seven copies ot-

a briet in support of <atel exceptions and ioidintels

upon such filing copiexshall te served on each of the

other’ “parties ; ‘and any, party may, within the same-

period, file seVen ‘copies of a brief in. support ef the

intermediate report and recommended order,

(bh) No matter not included ina state ‘ment of os

ceptions may there afte r be urged before the Board, o1

m any further proceeding. (Italics ours) oe

We befeve that this rule sets, forth an eminently sound

philosophy of orderly administrative and appellate proce

duce which should be stringently adhered to. U question.

ably it is. grounded on the promfse that the Board should

be alerted by counsel to those.errors which may have

prejudiced a ‘particular proceeding, and, more significantly, :

that the Board might assume that counsel only intends: to

urge those points which, are contained in its exceptions.

Where this policy is disregarded;“and a point not argued

before the Board is subsequently ‘urged in‘a reviewing

court, that, court is effectively deprived of the delibération<

, and reasoned analysis of a vital agency whose expertise ix

always relevant in the quest for the evolution of a sound

* body of labor law.

Finally, i this court, the respondent attacks the broad

ness-of the Board's order.” However, while respondent.

excepted to the order recommended by the Trial Examiner

oral arqauments..-Ca) Within 20 days, or within such,

?

Is -

this yxception apparently related more to the sufficiency of

the Ww idence supporting the order than its broadiess, As

we now ‘find the evidence supports. the order, we believe

° thav the order must stand.- Marshall Field @ Co, ¥. Board.

318 U.S, 258, 255-256. sigtey see also, Carpenter’s District

a oune Hof Petro, Ele, SLAB. 285 Fb 289 (D.C, Cir. |

~ 1960). : oa

An order -will be entered enforcing the order of the -

peers. _

‘ trict court of the United States,

Appendix B- |

Section 10(e), Natiotial Labor Relations Act: (Section

tg) of Title 29 of U.S. Code), .

\**The Board shall have power tO pefition any court of

abpeals of the United States, or iffall-tfe courts of apealy

10 which application may be made/are in vac ation, any «is

Lite any cireuit or itis.

trict, respectively, wherem the / unfair labor practice “in

_ question occurred or wherein such person resides or trans-

. evidence on the re

=

, provided in section, 2112 of

“have jurisdiction of the pr

temporary-relief or rest

proper, and to make and enfer a deerce enforcing, modify-

ing, and enforcing as s¢ modified, or setting aside in while

. such. additional evidence to be taken before the Board.

acts business, for the enfSrepment of sich order and for

‘appropriate temporary relief) or restrafhing order, and

shall file in the egurt the ryeord Jin the--proceedings, a

itle 2s, United States Code.

Upon the filing of such petiti m,, the court shall eaise notice -

thereof tobe served upon sich person, and the ‘reupon, shall

weding and of the question de-

termined therein, and shall have power ‘to grant. stich

ining order as it deems just and

or in part the order of the Board. No objection that has —

not been urged befoye the, Board, its member, agent,

agency, shall be ‘considered by, the cotirt, unless the failure

or negleet to’ urge stich objection shall be excused because

of extraordinary ci cumstances, The findings of the Board

with respect to queftions of fact, if supported by sub: ‘antial

ord considerdd as.a whole shall be econ-

clusive. If either jarty shall apply to the court for leave

to-addnee additionlal evidence and shall show’ to the satis-

faction of the é¢ouft that such additional evidénee is-ma

terial and that there were reasonable grounds for tlic

failure fo adduce such evidence in the hearing before the

Board, its member agent or agency the court may order

?

%, .

its member, agent, or ageney and to be made, a part of the

record, The Board may modify its findings as to the fact~.

or make new findings; By reason of’ additional evidence: so

taken and. filed, andUit shall file such modified or new ee

ings, 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 recon.

mendations, if any, for-the modification or setting aside of.

its original order. Upon the, filing of the record with it

the jurisdiction of the court shal We exclusive and its judg-

ment and decree shall be final, except that the same shall

be subject io review by the appropriate United States court

.of appeals if application was made to the district court as

hereinabove provided, and by the Supreme Court of

United States upon writ of ‘certiorari or certification as

prov ided. in section 1254 of title 28.77

a

Appendi:

SeoVion 102465 Nation: yt Labor Relations. ‘Board Riles

“and ‘Regulations and Statements: of Procedure, Series 8:

‘See. W246 Kaceptions or supporting briefs; time tor

filing; where to file; service on parties; extension of time:

eect of failure to include matter in exceptions; orakarqu

wi iis—te}-/Within 20 days, or within such further period

as the Board’ may allow, from the date of. the service of

the order tratisferring the case to the Board, pursuagt-to—

section 102.45, any: party may (in accordance with section

10(¢) of the act and section 102.113 and section 102.114 of |

these rules) file with the Board in Wasbington, D.C., seven

copies of a statement in writing setting forth exceptions to

jhe intermediate report and recommended order orgto any.

Other part of the record or proceedings (including. ruling~

npon-all motion or objections), together with seven copies |

of a brief in support of saul exceptions and immediately

upon such filing copies shall be served on each of the other

parties; and any party may, within the same period file

seven copies of a brief in support of the intermediate re-

port and- recommended order, © Copies ‘of such exceptions:

andebriets shall immediately be served on cach of. the other

parties. Statements of exceptions and briefs’ shall desige

‘nate by precise citation of page and line the portions of

the record relied upon. Upon special leave of the Board,

any partyY may file a. reply brief upon such terms as the

“Board may impose. Requests for such leave or for exten-

sion of time in which to file exceptions or briefs: under

authority, of this section shall bé inAwriting and copies

‘thereof shall be immediately served’ on. each, of the .other

“parties. Requests for an ettence must | be received ba the

Board 3 days prior to thie due date.

(h) No matter not included in a statement of excep

&

.

tions may thereafter be urged before the Board, or in any

further proceeding.

“ (ec) Should any party desire permission to argue orally

before the Board, request therefor must be made in writing

to the Board simultaneously with the statement of any ex-

ceptions filed pursuant to the provisions of paragraph (a)

of this section with proof of service on all other parties

furnished with such request. The Board shall. notify the .

parties of the time and place of oral ee, if such; per-

ad

mission is granted. ° oe

‘*(d) Orai arguments are limited to 30 minutes for each |

party entitled to participate. No request for additional

time will be granted unless timely application is-made in_

advance of oral argument. ee :

‘*(e) Exeeptions to intermediate reports and recom-

mended orders, or -to the record, briefs ‘in support of ex-

ceptions, and briefs in support of intermediate reports and

- recommended orders shall be legibly printed or otherwise

legibly dupMated: Provided, However, That carbon copies

of typewritten matter shall not be filed and if submitted

— will not be accepted.”’

fea