# Petition for Writ of Certiorari — Sperry v. Florida ex rel. Florida Bar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0490%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 875 ## Text eee Sg JOuN +. DAMI' in the / ; — Court of the Hwited States 7 Ocronern Tria. Lalas | 7 e : PS) | ey NEW ENGLAND TANK INDUSTRIES. 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 ; ied . Pe Se ne : ects’ , F W240b) of the Rules and EC ’ ‘ ~ * Doane, Series Specie 1 Statements of Procedure. Nationzl Labor Relations’ . ; » Pivge - oe . ‘ é . ; é . % - 9 - - ; ‘ \, ny, - e ‘ ° n 4 ar * ° e . . 5 7 e a eee . pe ° - _* - . e = —— = fe . - _ - - =? ome ad “¢ e . - pT) ‘ P ‘ . . - bad ‘ - = e ‘ ~ ; ! . ae er. so ae ’ ° of e = bd aa, oe ¢ - fet ’ ’ . . 1 . “~ . A “ - * 2 ‘% ‘ + , id ° . os e@.-F - . ap . . bd - Pe ° - . ~ * > : i . ¥§ - ; ° - . , e * , s ’ - a att" of “* > e- x : . é - - ° ° a re Pooch R tn ~~ | Supreme Court of the United States - - Oheoromra: ‘bens. Io ; — ‘So. ae ie | - | 7 NEW ENGLAND TANK INDUSTRIES, INO ee 7 PerETIOS ee ; | | of © ° , . $ rs NATIONAL LABOR-R 7 RD. bee RESPONDENT, | Zz iS ‘4 VA A hte PETITION FOR WRIT OF CERTIORARI TO THE ‘ UNITED STATES COURT OF APPEALS ‘FOR THE Fl RST CIRCUIT ages Sa ©) »/ 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. * 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