Petition for Writ of Certiorari — United Aircraft Corp. v. National Labor Relations Board

Supreme Court brief1964

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. MEDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus. 15, Ohio

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_ ||. Office Supreme Court, U.S.

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29 1964

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JOHN F. DAVIS, CLERK

IN THE f CH eas

"Supreme Court of the United States ay

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° caaaee, amet °

/“MOLLIE S. TAYLOR, MARY. J. WAGNER, INEZ

L: BOSTIC, JUANITA DONALDSON, GRACE

KARNES, PHILLIP E. McBEE, FLOYD HALL, |

“MINTA JUSTICE, OTIS KINNEY, DAVID. W.. See

HALL, .DICIE P. NEWELL, VICTORIA BRAN- . © ©

HAM, MARY B. GALBREATH, DELLA M. GLEA-- ie

- SON, BEULAH KULI, MARIE H. HOLBROOK, .

ALBERT T. RUCKER, BETTY E. HALL, HAROLD —

JAMES COMER, FRANCIS C. BURNARD, AND -

NATIONAL LABOR RELATIONS BOARD, x ;

' " Pétitioners, a vote la

ve . |

FRED H. JOHNSON, TRUSTEE UNDER THE WILL

OF CLAY M. THOMAS, DECEASED, D/B/A

ATLAS FINEN AND INDUSTRIAL SUPPLY,

“9 \ aes. ae

suas

~~—PETITION FOR.WRIT OF CERTIORARI —

Srewart R. Jarry,

. 42 East Gay St, Columbus; Ohio 43215,

— .. Attorney for Petitioners.

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ens

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INDEX 5 :

eyecare 2 Q

(jtation te Opinion Below 427. - COLOR ECE S gal,

_Juriadiction ...--------:s¢2°° Seances oe% Ks Be

(Juestions Presente ‘<. re Peres tee eg Poe ‘

Statutes Invoived @.. aor. Peg ake PURSE oh

Statement ot UTE AER ae SS ee Pea i ES RAE Ree 3 ‘

Statement of F acts. ase ts ie Poe noerare ee 5

Reasons ‘for granting the W rit. Ale gies MI ee

1. The decision atthe court ‘ie low ix directly i

o_ confhiet with the decision of the United State»

‘ Supreme Court in N.L.R.B. ¥ y. Mackay, Radio

. and Telegraph Company... *)---- 02 7°" yams 9

2. The decision of the court ze low is in contliet

with the decis sions Of a substantial number of

other United States Cirenit Court® of Appeal. 11 :

an Ae ee re -%—— er

Preof at Merviee.. i355 -6s- ae Siae's iat at SE She eae

Appendix A—Etry -...<- OCA eaerae "2s ine See 14

Appendix B- Decision of the Sixth’ Cireut Court ot

Appgals . 0.5 +++ ore Tihs ate oe eee 17

“Appendix C— Statutes Involve , eee eat Denia ata. 24

Appendix D-- Order granting motion te intervene....° 27

- \ppendix E— ‘omplaint: ixsned by, gegieral counse i. Stabe

N.LB.B. pe a cachneuncdieeiencenee ete ae er ae

| ‘.o © Table of Authorities - - |

904.0. 8. 333 5... 2-4: | _ 10, 145, 20, 23

N. TRB Piqua Monising Woo p ealin f ¢ o,, 100 F. ‘

2d 552 (6th Cir. er ch net oe See OE Oe L.

l \, .

N.L:R.B. v. Grieder Maehine Too! oni Dix. 142 PF.

163 (6th, Cir. 1944)... Pp 2

eS ee a es ee ae ge ee ae a ee i oe oe aay

Aniefican Newspaper Pub. Assoc. Vv. N.L.R.B., 193 F.

2d 782, cert. den. 344 U.S. 512-1952 Bete ak eae lz

Geperal Drivers and . Helpers Union, ‘Local 662 wv.

NCL. RB. 302 F. 2d 908 (D.C. Cir. 62) sie Meare LIES

“NLEBB. v. Puerto Rico Rayon Mills, 293 F. 2d ‘O41

‘(Ast Cir. 1961). 2... nee ce eben Pies a were - s

N.L.R.B. v. Yate and Towne Mfg. Co., 114 F. 2d 376

ae RUA oy dt FS bens Bis cca eee ee ee ws. 14

c \

The decision. here ‘inh is in conflict w ith ev ery case set forth

in this table of authorties. ‘ ‘

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9 “

IN THE UNITED STATES SUPREME COURT

MOLLIE S.PAYLORA-MARY J. WAGNER, INEZ.

L. BOSTIC, JUANETA ane VL DSON, GHACH

KARNES, PHILLIP Eo McBEK, FLOYD HALL.

HALLe DICIE P. NEWELL, VICTORIA BRAN/

HAM. MARY B. GAL BREATH, DELLA MG YN

SUN, it LAL KULL. MARTE Ho THOLBRAOK,

ALBERT Tr. RUC ‘KER, BETTY BE. HALL, HY ROL

JAMES -€ cme, FRANC IS C. BURN Arb, AND

~ NATIONAL LABOR REL ATIONS BOYRD,

cra, Petitioners,

a ev * 3

ee rs ron

FRED H. JOHNSON. FRU STEE: UNDER THE WHILE,

OF CLAY M. THOMAS, peer ASED,. D B.A

ATL AS: LINEN AND INDUSTRIAL SUPPLY,

af ind oe wt.

ee ; a ~

PETITION FOR RIT OF CERTIORARI.

Thang Hoxowants, v7 Cater JUSTICRAND THE AsSoCLATE

Jrsrické oF THE Sr eo | Coury oF THE 4 i NITED Sires a

AMEnica: :

— /

’ Petitioners pray that ik Writ of i ertior: uel (~sue to reves

the judgme nt wt the United Sti ites Court of ‘Np pe als for thr

196.3. ° oe ?

rai CITATIONS TO OPINION BELOW

“The Opinion of the Court below: is unreported ‘and |} is <1

tyrth in’ Appendix B hereto. mfra. The. petituane Ps v ny

Aging u leave to intervene by order of the Sixth Cireah Cour?

of Appeals: Appe ndix D, tra, under the authority of

+ Huternational Tonnage ot Mine. Mill and Smeltey Workers

Sixth Cirepi ventered> a the 6, a Cause on September 4, |

esemeerefgnentn omemnenansrenys ates Gonmei nee

ee ee

* —

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7 s

—

+ Local 15 v. Kaglh. Pitkes Vining and Smelting Cé.. 325 US.

HARES, SLE. 1649, GS. CL WG .s « core. eo.

ie JURISDICTION

The judgment of the.@ourt of Apped!s Was entered on

September 4, 1963. The FarissTiction of rhiz. fourt is Invoked:

under 28 ELS.C, Section 128 (1). . m

P | ae QUESTIONS ‘PRESENTED = = ~

- =<:

ob Pid the Vourt of Appeals for the Sixth Circuit érr an

denying employees the benefits of an order og reinstatement _

and back pay on the Boards finding of. discriminatory dis-

charge by a decision that the employer was de nied a fair

hearin x selely becanse there Was me specific factual «allega-

tlon of diseriminatery diseharge in the complaint even

though there were general ‘gilegations in the complaint of

~ unlawful discrimination under Section S(a) (3) of the Act

snd discriminatory discharge: Was proven’ hy admissions

of the ‘employer any other ‘uncontradicted evidence - to

‘whieh the employer raised no. objection «whieh, although

‘al a Variance with the - mecific “factual allegation of the. .

complaint tell within Hie ‘encral allegation vof unlawtul

‘cantor. ee ae

igey “2 Ff, in _faet, a complaint is defective for failure to

“allege discriminatory discharge, but thesparties litigate the’,

issues fhe employer not’ raising objection.to evidence of

_ dise rimjnatory discharge, the emplover’s admissions sup af

“porting. ihe fineling of discriminatory discharge, the em-

plover not claiming Surprise at the hearing oP asking for A

comtinnance, and the employer’. sole ol jection at the hear

ing being to-questions relating to issues other than dis-

- “eriminatory discharge, under the doctrine of - NLRB «,

Mackay Radig: 304 TIS. 35, has the entployer “been denied

a fair hearing, and, ‘if not, ‘did the Court of Appeals err-in.

overruling se much of the Board ’s daetaionn “as Seetiid: dis

erviminatory discharge and aw airded re insti atentent and back

oA] o ° =

- STATUTES INVOLVED . - .

The stattory provisions involved are “the provisions of

the Nationa! Labor Relations: Act, as amended, 29 USC.

Sections Lol et seq. and ~pecitically Sections oi Shas (1) andl

(; wie and Section 10 of said, Act..3 Said Sections are set ferth

i-Appe madix Cy infra,” :

. -9

pay,’

rhs. STATEMENT OF THE CASE

Prirstrant ty the Natiowal Labor Relation’ Act, 29 ULSs

Seetyn 151 gt seq. the individual pelitioniers herein filed

charges and the general counsel issued a vomy aint based

thereon against Fred H. Jolinseén, db a Atlas Linen wnt

“Lahisfrial Supplyy -Columbus, Ohie, alleging that the, Ath i

—Linén .C comypsanny ‘had unlawtully diserimin ited agaist eer

tain individual employees in viol: ition of Sectioné Slay)

and (1). ‘of the Act. The complaint specifically vet forth oz

faets of refusal to reinstate’ and reemploy striking om _

ployees. , A

The jurisdiction: of the Board in thi matter iz not CO

tested. . ag Pe

The- Board round that the responce nt employer, Atlas

Line Company, Violated Sections Sfayc 3) anal (1) of the - ee

a\et_ by diserimifiatertily discharging certain of its em

Se yloyees, who were engaged in a protected eeonomic Strike

of the employer's twe plant ~ in Columbys. Ohies Th

Board alsd found certain condpet en.the employer's par!

to coustituth CACPELON and inter rence in Violation of Sec

tion 8 (a)(1) of the “Aet: said latter _matters are not im

volved. here. 2a

The Board Filed a setibion for ealtieiies toot its ores

in the Sixth © ircuit Coart of Appeals.

te . bd . oe 4 “5 ; ;

. - Initially, the Board had found by its decision, 130 NLRB

761, that the _respondent employer: shad refused to reinstate

Sy eae said inelividlifal: employees in violation of the Act ‘and filed

.: 7 * a petition for enforcement. of said order. Then, of its own

Pears. x " motion, the Board withdrew the petition; reexamined its

eee afgresaid Decision and Order and the record, and ‘adopted

the . findings of fact. and conclysfons of.law. of the Trial

“ pee ; Hxaminer in: reaching” their decision involved herein.

The Decision and Order én which the Board sought l-

toreeme nt stated in part: © - ,

*From-the above sumuni iry-of. evides nee 5 aileaeads at the

~heariny. it is clear that the discharges of these-em- -

ob ‘© ~ 2 a) ployees were placed dt issuv and thorought y litigated

| a? by the parties. In these. clrenmstances, ji was proper

for the Trial Exeminer to consider the. issue: We also

-, Abink, and for the reasons givey mm. the Intermediate

shes that the Trial Evamimner correctly found that.

- A .

Dee. ‘the fespondent discharged the ®harging parties ax -of

he Pee lege eae Sa \| | Th 1959, because they CHGAGE al im: or. (in the ease .

ine . F of: Della Gleason) were thought to have engaged iIn-

Ree sper fhe strake, and the responde rt thereby Violated Séetion

: * eS) (3) and (4) of the Act. Accordingly, we now va-

eate the Board". prier finding, and adopt the: Erial

Rxamibners fineling and cofielysion i this repéet.”’

o ; inte LD VTS, ang tn chy iragind “parties having heey unlawfully

©. discharged as of April 10,°1959,; were entitled to re- |

bo’, pier -instatement upon their unconditional. application’ at

r . . the end of the strike even if their jobs had been filled

i se , . during the sirike. The respondent's refusal ta reinstate

; or reemplog thew attthat time and theres atter mds

i pialative of Seetion SCai) (3) and (1) of the Aet.

; Een nee ee (Emphasis —

The Sixth Cj ‘ire uit Court of Ay peals determined that “all

. ; impor Lanit | mestion of administrative: procedure i is presented

by tus petrtion.” The Court stated :

4 . = dn this, connection the complaint as we read it

- ee he alleges an economic strike and failure to reinstate the

-echarging parties..-The theory ois “clear, ‘There is ‘ne

seference to discriminattry discharge ancerning thi

‘failure to rginistiite: or as a Vielaiion: in itsela. -Dh-

criminatory: discharges is i Vjolation of Section Sta)

(3) and failure to reins tate on request following a

discriminatory discharge is vet another vielfition. but

the establishment of the Jatthr-tinds ley aly focus

npon.the discriminatory disgharge. Sei AE ea

Thy Court: went on to SAY:

notwithist: atte ling 7h ca possible ve fy “pees ter thee’

ischigee isstie (at the *heartney. pen, conside pia

the record of the whole, we cannot avoid the cone lhieian

the. «iseriminatory discharge Wiis ISSN Tn reced

nized by the responde nt and not one that, should have

Sheen r audibly percery ¢ from the progress of the pre

copay.” (Pare ntl hetieal! matter fu bexeal pense

* ye

Therefore, the € ourt reversed so meh ay the decision ote

order of the Board ax’ “found disertmin: tory ‘aliseharge ane

_orde red res statement and back pay. f for. thi: indivi duit ert

ploy ees concer ned. .

. STATEMENT OF. PACTS.

The tive my employees Involved herein were engaged i

various types of laundry work at the Atlas Linen Company.

Then pay wis One Dollar ($1.00) fai haur aml their aver

age yearly income was between Twe Thousand and Fue

| cfhoupand Five Hufidred Deollary. 0D. . ;

for a considerable period of time. | Kor in Taner, Mollie

‘Taylor had been an ¢ miplowe HG ight vears (R. 105a/- ‘the Kt

tindieates the Reeard fand i Ls ile nominagy eal Ap yy Vy IX to Perit

_ tone ry’ Brief Victoria Branham wer ked for the er

for ap proximately twelve years (R. Asa): Marv: Galbreath

Was an employer of the Company for approximately nine

teen vears CR. 18a): Mary Wagne} wal an employes ines”

so ae

re ‘Many of tliese employees hack Deen with thre & orpatny

ae 1950: and Grace Karnes Nw As. aun employers sme e W995 (Re

lia and 164a)." ‘

A sebstanti: i! mumber of jmp lovers ‘stened authorization

CALTUS. “with Distriet. 90 of the Enitecl Mine Workers ands

suid labor’ organization attempted to obtain recognition

trot the. Atlas Linen Compary. No progress having been *

10)

we ont On sty ike the followin day, April, il Yor 2%: eh,

nie, on April Jit was determined by the Uniomw te

The employe r,’ “Atlas Linen Cou pati, Ww aS eu are that the’

) ~ emplotees inte ded to strike on the, followimyg day. Chante-

ce on}. a Company foreman (R. 2702), necording | to the.

testimony of The: 7. Bostac. told employees: ;

“Tle fold’ us that if those wi yrapres one report for work 3

+ INOTTOW at to cot that would) haves been on Friday,

: didn Mnecd fo come back at all. OR. Téa and (ia).

“. how agp. the strike Was over, dit-vou make any

attempts to get your job back 2+ : Ne,

‘ AL Well- a, r

2 i Rss Did he sav auvihinig e ‘tse?

“A. Well, he SuVS, ‘TL told You the lay he fare’ ‘vou went

out on the strike Jhat those whe aide Lreport tor work

didi Heed to come ‘bac k?** (R. 77wand 78a)

* .

Aceording to the testimony of B. Hall Mr. Allentanadess

At -anuonteement to the e nv. on the ae on. April 9 .

1959, CR WS) She testitied’ “ 4

es es He sdid, theroy sagt that eve rybody that doesn’t

. show tp fpr work toner is lire “dh 7" CR. 14a),

Mary baitsceath testified dt the hearimg tat she heard

Production Manager Touck moet: pet foreman Yertan to,

tuke down the names of the employees whe went to the

Union onfecting ‘in the parking lot acress the street OR,

1d9a). At that same time she he ard Houck tell Yerian that

if the employees didiy’t report for work on the next aay.

they no fongwer frac Jol. iR. 19a),

. : . x

Warren ©. Armeatrong. aan -attorne oad the top PisePLAe

ment represen Patave: weethe Company | R. Gar). test! he “ld use it

he advi ined fis sper visory personne ls

we ton-the basis that people didi tshowgsnp for work,

tho were vale hip comstde eM “cl. “ise this aT treet? Ht. ae '

le. further testified that the ( ‘ompany lind gin existine

. Gmpany rule that anvone who did not shew tp ter work

and did hot-eall in te report off wits Mi-<vharged. (BR. T2za)

However, bloward is. Smith a P Hant Foreman (CR. 20803

‘contre addicted the festimans of Mr: Armstrong as. te ‘the

ayy fealinlity of the Company Fale. Me Smith testified that

he had anthority to effect a diseharge bimesett and that the

_ practice Was “not to ~dtack inryue form violation of the Com

yoany rile of being absent or net ci fling in.

As Smith testified: (Ro 210a)

a oe eit didn’ t call me. dam Hable @® disetrarss

he ig if the eiremmal: Wees< thes “\bs it loot rf thiiwus Lee

take date conmside rertion am that. Mavbe-the apy) wim A

aot} hor eve k ia! ral eats In’ teint ‘Ogee fe le phone Siw he Sit

doesn't have a oe ak comothing Tike thet ;

ty iS Llave vor ever faathect {> vfischaree SOTHO! Me whe |

rbsent witht eathmw

Mhe Witres<t Well, [odlont reeall Auy Miptanes s like

thisit. brit as ] said, t| Cre i> re fort af Causes ia eirhe it

get to the phere De talk it ont awa them."

"The aforesaid quali ions \ \ igi; appear uma number of

places throughont the hearing Wem admitted nut o exidenc

without aie iection having been raised oft the part of thre

cm plow rv, dn adidlition, there are other place win the Vecored

where the testimony " that employers were “tdyised that

they went aut ot strike see onlt leer automatically oid ot

i qoh. (oS a » eR. a), re | ties hat} mi htt ae i t4)aa

" (R. 15%8 it ae é

/ . . : z " . Pee)

te |

‘. S °

The Company marked, the personnel cards of the em.

plovees as follows: :

Date: separated 4 10 09; Reason Voluntary ut

Bailed to Report to Work." ¢ ht. 2s2a, Jaa)

At the Board hearing. Mr. Castrop, the Company exeen

_ itive responsible for the. personnel cards testified on re-direct!

that@he cards were really marked ay above for unemploy

nen? compensation purposes. CR. dssa) ae

And nowhere in the record does the Company object to

the evidence relating to discharge. In faet, the Board found

discriminatory fischarge primarily en the basis. of the -

evidence offered by the Company. : i oe

The st rike Was ended on April 14 and all the petitioners

hereim made apptieation on such date ‘to return to then

jobs. Reeognition of their right to-the jobs was refused ty

the employer. Because of this -retusul the petitioners 1

their individual “apacities filed charges with the Regional”

Office of the N. L. R. BL

The complaint ‘cened thereen charged‘among other thing-

“that:

ee * ‘ . *

36. From on or about Aqrih 1950, to April d4, 1990,

, the employees of Respondent Employer named > 1p

Sehedute B. attached hereto and made a part hepeot

engaged in ameeonomicstrike.”’ a)

es (go) én or abeut April 14 1909, wid at gid “tie

thereatter the Respomlent refused to remstate and oF

reemploy said striking employers because of their

activities desrrabed aT) poraaraph 6 above and beeanse

of their Membershir in, sympathy for, and concerted

activity in behalf of District Soand “or the teamsters. -

“QO By the acts and conduct alkeged’ above, the BRe-

Jponde nt has engaged in and is engaging in untae

labor pra frees is detined in Section Sia) (1) and 3) -

of the Net... 0°) (Emphasis added. ),

“

hatei

REASONS FOR ‘ ‘GRANTING THE WRIT

LL TheRecision of the Court Below, Is Directly in Conflict .

with thd Decision of the United ‘States Supreme Court in

N. LEB. v- Mackay Radio and Telegraph Company.

ln NLRB, Me whan Radio aud bebe graph Co, 304 Us,

3a, the respondent employer elated thal iP had been Sun

eer te answer it eqguplaint that it discriminated i

discharging five men and that atter all Hie evidence Wits “e

the complaint was withdrawn and a new sone presenter

iiss ring that it: refused tO reemipy hoy these five Tem: ate ‘

mover, when the Board e amie to decide the case it reverte att

its imitiadl position that what the re spondent hizael done Wiis

not a failure to reemploy bul a wrongtul dise hare. Thin:

there was ¢ dearly presente ata elam by the employe yr othaaat

dd d not have a fair hearing before: the Board aa that

Wiis found suiity ol ath unfair labor prac ‘tice whic owas Mh

within the issues apon which the case was Tried

The Court in Mackay Radio, supra lated: .

The position ix highs “Leehgiical: Ali parfies io Th

pracecding knew trom tae out-cf Shraat thie Uhain cen

ne aimed of was dii- Seria IEn wait ~Pocorblaity me

renason-of their alle 1 Unien activities

‘ s = . e

ae TeV TOM of thi reeord shaw. that athe T Bai.

anving the hearmgs was there any miistiede pstandips:

sus tee whit Wests thie basis of the Bowrd > Commpiaiit..

Similarly, ih tae instant case it plains thatethe Ati

Litae " ( ‘OM Pay keneve that it Was Htavating the ibe stled

discriminatory diseharge ofits emplaverss Phe ‘Ofatemet iff

of facts set forth herein ‘shows the mane LRM x that

fe timo was aadice dal the hear, ithout objection te

the emiover, concerning ihe Sees prestrike threat!

to discharge all employees who might strike ane tilse U4

employer's post etrike statements that a fk the strikers

10 +

their jobs ieee they did not re port for work on April 10,

‘together will r the employer > abtempterd, subterfuge ob tne

a “ploy ment cards. | e 2 a e

elf the employe) in metuadiiy cid wot titite rota from thi-

“hoaring tat te issue of SC TiMaLory discharge Was in

volved, the question - must’ be asked. why then did the em

ployesattenyy! to introdtice evidence tdaat the notations on

"the emi} ployme rit card ware for purposes of ant vownient —

e compensation ! (RR. 28a rand 226a Lo 2500) As Mr. ‘astre ope

a Company exeentive CR. T88a) testified on al Ox

amination by the Company wttorney , y

Onur statu would -be that’ Thies volun! tariiy quit.

\We came to that dec ision becatse of onr know ledwe that. -

these tinptoyees were filtnes “une ripehoy mane ni claims, and

: thai would be. out poor iA horns oi the “he mij rhoy mae wh

claims. aes id at :

Piainty, by the above festimony sie employer was seek

Fe ing to re ‘hut the ev idence of discriminatory dischayge.

. Thus, the: cortls om the United States Supreme ¢ ‘ourt ip

Mack cad Radia. supra, are eeyuaailly ys} hieable here

we fied Drom tte ‘peeo rd amart rte the Mifare Th.

ihpeegeel ~iaod the i mite Gcbid Wale aufferde ob tudl 1 portant \

to. justi the upton of il officers as innocent rathet

thar diserin@uatory. 9 +) bat ithetiva! matter added?)

2%. (Footnote omitted. ) es . .

‘ begat t the wniphove! ehied 10] abject lect ine Testimon’ an \

lee Lhe discriminatory dise haree curing ite hearing. See

“tion LO ie) of Lire Act pray ies that moe ob jection. that was

aol urged before the Paare chindi be eomsidered oy the ye:

tourt. Phe Court, however, found that there was ohjecton

und that dhe tri examiner overruled the et ject ious HSSI

en ine the resporieben | that evidener Was being acimiitted for

background purposes ONLY. Itoenn be tmequivocaliv stated

thal mone of the ob peclionis raised bY the respondedt enn

aie, | eo ee

ployer Went to the admussion of evidence ol (Lise Pinaiiato ‘

discharge." Lt regard to the one place’ in thee. peeord where

the Trial Examiner mide the statetment about aetinit? itis

evidence forbackground purposes, the decision of the (ous

takes his statement! jeompietely oul of content. The brcnared,

; itt commenting an the respondent's excepligns iv the “Priab

MAnminer’s intervening report AR. S26a, Tootnore 4) stated

+ : we vote hres Thasal tle Wary paca )

ates |

4a}

aoa

~ ctatement Cabot the hackeround mateRal) wi

Passing bipnend till alteryal de epperecige ot crn cpbsqeret ton

liv ihe respondent to certain ede tiati~ ol the General

Connsed, concerning, statements tnade by a unidentified

jepson. Neithes thie abgpect Fou poop fhe fetta pied « I hee

Trial. Bo jaetdie Vw Teds divected. to atin . jie vt +!

dactemevtard EVraqence «© tubidishend thie aliscvrpenmatee

2 shischatnae Weeogre satisfied tnereavel thai the alfeg

> fraps of Ble eon iT ee wipriss fii Sue OF un

ciel fy] chase baddies aed tft tte pete ee feet

oyglbas. ifteaate three nanan test sa Prarveasthetrede, teaeatt

added.) sche Dri? Reaxaniret *L eombiedst bieis

toot

iti Utne ecored al puge deafite. «bribes!

- @ . .

° . . . .

~ Cop the fasts Ot thee statements as sy

: a. dt Lalita AAAS: Md ET areas

4 —— ow w ee a een wa

+ ennpmot te Cawot Tan ee enh Ue either the yes scovacheedit. ecpeppeesye'!

Tppee- ereongtt ecoorthed tinieh thant the eraplove? Puracds Doeregs tepiestes

this matter “*

2. The Decision of the Court of ‘Appeals Below, Is in Gon

flict with the Decisioris of a Substaiitial Number of Other

- Circuit.Courts af Appeals. ; °

c =. ; 4 * > %

“Even the Sixth ¢ went mt ON popeauls Sate pore vie!

: : , 5! j : 2)

deemed That thie VERB Comey esaei bed Whereas syend seet count tle 7

ene faets comstiitits the unfair tuber practier- frriali&

Vevnepocd® DN the board. li \ LB: Prine JM ae, iu if

Privetact ey pens Pe Jet Sov *Sixth Curcalt ESF. 3

: - ’ ? '

Sixth arent! mag sala:,

Phi compplaitmt did ter cot oth erences tryet

ecan-@gtuline the’ tuifair yale ymetiee: a

-™ ad = . .

ee cF F ; :

”

Fae ee

po,

3°

“”

———

yee

- Pal _

- cahite hae ik thoeat there

iat thes. wits Tiel

cen

; . :

‘Clearly, the mbytt:

and the employer’

eriminatory discharge its.

ot time ene} evident

. eV iededi

that ail the parties

atathe r Sinth ¢ Seni

| tie, 142 F.2d-1

ain thee ds idence ana

"The Nabhiihie:

Utie eae Bi tied

pidrenaal ideiry...

4 ii oe verth 4 ie

tare vat Ne its Spay} ; vw, 40).: 284 et

an. {Seventh qa

poe). dav thiaet

pinvivs Untte

ieecdiledeat Vietation @

violation as alleged

eolti cepter tele ride i

ve ea eee

Viewlhiy ¢ wine t teeta

Wheres as

6" petian” waiiell

varett tee ‘baie

- Ker has beet

cued fares

f pabrlies clyies

. xf _

hi iat

“~ . me teeta ia, 408

P Se eee ,

$ e 7

bic the \t oe

ree that the

clean that tiie

that the Board founed an Stan)

. P a

us Klee it bats. 5G

al aftonapt is the

ease the cenaplamt

Seelieti sits} 4 1}

Linew Case with

pec asal aa ali parties te the pre.

. “ 4 E .

; \

” spondent employe!

‘ailiire ste objeet te evidence of dis

it was admitted and the mumbet

ee eame inte the record clearly show-

to the. “proceedings knew ifs basis. In,

t Case, NL PE Marie der Machin: Tye i.

Ha “(Sixt Cireui T9444) the, eraploye:

wis pov prhanee he Aween tie complain’

ithe ‘ ‘qurt said: ace

pad irvensted

untetioned by othe strict rifles ol

Wi Wir | Li rene wth a ~imilar problem 1h

issu reihion a NLRB. 1, Y=

enit Wal, cert. den. 344 i: 8, Sie

aliewedl Comere uot oilemt

CAG. ‘Phe Boaral however

t Seclion > th) toy and cbisk ret iid a

Pheretlor thie Boara clintiiinse ra] with:

eres oer tip proet ate the re

bthiste be error “The Court said |

here al cheat ray aleseribes ahi

“alleged bp cons tithte abhi unt atti jadins

whieh ~ub-section of thy

wronk sUbesect leoti.

te tii:

earn

baatix te aiiewe

Vipkatee! or afbawes the

or IMictake, Ho 11) etoe-

prevent the. Board Drom: eon

soy Eee padead.?” .

ead. cbenes Treal

vecuabb ag the. charg

RY tule we deal there is me

ve-potdent emplover Wit- misled and itt

complamit alleges an

(23) -abessekt 10d; = Soi wae

ee oil .

atithiwrits te take evidence,

rast otnesieaed the

sta) pen ‘Violation and

‘

P. .

S .

‘

fn Greneral: Drivers and Helpers Pana Local 667. 5, ‘

VERB. noo Pte gos De ©. Cir 1862) a

plover eante seded. that it wa

tree by. the Board etion: i

. co pravtices bav®d on matters wh howe ;

tigated at the heartig. ane yy oe realte cabin ips ores .

thereon.’

°.

° . s

esperpeboul enn

: ines

pyrene s's °

denied) dive

nntaar tab

re"pot presemied

tinedes ner

2», i: Pa

eral Dorie is ete vriedionnts a

ithin the’ a

shh a

“The Court tnethe fre: pA

th: ar ert: iete {; wt form d wor

tee comps me and the it tt tite ‘Rov pared was Weyl

te oridenes SSimnili arly, in fh Hys tay t-ert<r mie Go

tory lise harge. notin babe Hraetie whieh the Board ‘found

“6 within the scope ot “the atfegatgen in thie compianit thar”

ethere was an % (a) (2) wolation by the respondent om

-plaver. Pt wae nes neeossaTt for the Board te ot ad it

Pe ib *f idee ’

Jt 1 apparen the val ae amhs ie)-of thy compptaint in >

"Brine (the yespondéint. that tt a charged with nina to ;

vette 1 ane etaen with the strike petivity fh)

oy violation whith the Jour fonned

Ina vee similar sitmation. NLRB ee Pierte Thee fea

MEI. 2B 20 O41 (dst Cir, 1961) the Company conte mded ° |

that <inee the charges’ and’ the amended comptaint do nea

repaakees CATS sikeiatian that there was a Ajschangs of en y

loves ~ ether than ante partionta emploved the finding: ot

neh alischarge and the ordering r that the eopdition o4 cor

rected wa iHegal and: must, b: dey enforcen \ig.

parents oe Puert Riv fiiuvon supra the ) a

other cmppbhavers Wate prregggite dan the ee tye : aa f ;

the hearint “ae Warthes aca, of the’ Compan %

the Torynes battens Phe ‘ ort ~tated | eS

Thos © eorppbecarss dows Be bahaatreze« trent, UF Wot wats

= : , vate ite ERIE 2 err thie ‘

piter) badhe ‘ i 4?! cruise ak Gas ' . 1 ibe ti s

thi hoard ar the bearing: oXaim baal Way seta tel

the compar tor lrtetes = suede eliau? ;

\ j . .

o ? .

> ‘

< ¥ a §.

e we. = a .

. EN :

“tous equally, clear fieve that-the Board,gont have wider:

thre provisions ol -Seetien Thi Sar the Ae amended | tine

Complaint te state ‘spingitiealls thie matter of discriminators

aliveharge. While the’ Board did not amend, the -paarties

frere cid jit ate Ae isste of disc rrnanatory discharge: the

employer did aiet object to tine rire ‘epr ion of such ev tehenens

ha dil the re Sresnietenst employer make any mhoetion before

The Board for wAtier a continuance or to reoper thie record

<0 that ad jit ina! evidenes might be taken. It 1~ polaaite Pome.

the reeord that the evidener in support oF the aise Pima

story disehargys jndiag conies from the Company reprerse ritaa

‘ives AdkBIDSSIOM a rene the ¢ o@ipan x records.

Th regare te rho speeitienty oF “the complaint, the sveond

‘ ‘renit i VLRK a? Vourle caied 5 re Vera. (C4 AF 2 ! 6

Secone Cairenit 40) porited out that there. Was necren test:

ion thee spondent employe feria bil of partion lars or ber.

- ith ee tithe’ nt sane that: the re sponte nie rmiployer put i

eeVidence. to controvert the * Board’ ~ vine ee with Teapect

ti the’ Vielation~ met speeme ally alleged in thie x ‘omy lain,

STH Couel L pointer that there did net seem fo paar ven bocce

UPN surprise o tek ot opportunity for the employer ti

riake its. Tens¢ Ati that therefore it wi as let apparent threat

thie respondent Was pre juciced byathe tae’ i? ot paartie eupdaarats

th othe competi’, chy that ‘caser the evide ‘hee a te cother

niatters was offered By the Boarat | © stew. hustorical —

hae ‘keroqud , iit evidence wits later seal iis the basis for

findings ef unfair haber pruetic: ~ net apeeine salts alleged i

thie complaint Cie ; :

ca Eye ee

and it the Sixth © the * the courts de net Apply a

« **

>. “v a

_ . :

* ~ .

= °

* ? .

7 .

« - Sa be

- - .

‘ ry

. °

OW Osis CONCLUSION Wig ee

at: ts Apparent fron the dec Patol id Mar ey Railin. Supret,

the le cisions cited in the Other € erent Courts of -Apipeat

niedl precedural raivements to the- gemiplant issued |

the General Couns! of” the National> Labor. Rel tons

Board. Prom as tendpoint vot the efietent snd squid nd

ministration of jmstier, itt iaportanel that this Honorable

Court eliminate thre conflict of deeistons Jas between the.

Cirenpits. yrther, the settlement of this question by this

Conyt is eleariy in the public interes?, since ‘the complain!

4. involved in every untan laber priactioe gase which reaches

Hie Board and oniv thie Court is a position to yesolve

thins question. -—

“Phe womnpels unit. of vourse, is involve bebe mans admimstran

yive proceedings cine us D rofe.sor® Davis: has tated in his

fl reettise m2) A[limiastradics Law, = ot pany s O4, yi a

Lue yew? preteor tenn chiacacteristic ol rejecdines iti

the administrative pret gotheiy umimpor ~ co, Vn

q 0° Pertenece =hew- Chest cerelaeprrertiniee: wt yest loadings ‘

“e VUNTHO. ey : —— oe a

Te pede exten! thicit thi~ adavisdic che eisjon -retnrns to the

mete Ss

common. law ter ‘hia! viecedines. Th Ww iff stow chown the ad

ministrative precess.. and will ‘depart from: the process

esti lished’ by Congtess 0! minimizing teehmical pleading

egy ‘remet His th svdminist Yr ation proceeding and of permit

tine amendmen! of pe POMEL ibe ider see Non 1G te) of

tie Aet} se it~ te risa ecte fow epne nel effiereney Wn, the gud

pinirstraat vas pearing procedure. Inflend. it ison well settied

carmel fanned rental yerinesple | of nan feehnieal pleadime ana.

it elararedd. itesshiotite) Be chi ined be the Coneress. sited yet

the f ‘ourts. Von these yensons it A yerpie certubly prays a thiuat

the Petition fora Wri ol ‘eeortiorar: be grantert,

{

. . .

° > -.

S ov -

- = ° “ >

‘i, 4& -

ene * 7

; carey \s

~~ ° .

‘ Se

- - ‘36-

APPENDIX A a

NO. 15,031

‘N ATION AT. I, \BOR REL Sey IONS ‘BOARD.

. Petitioner,

v= Ci

o ®

FRED I. JOHNSON. TRUSTEE UNDER: THE WILL

OF CLAY M. THOMAS, DEC EASED, DB A.

ATL AS LINEN AND INDU STRI. AL SUPPLY,

a : j : koa Respondent.

\ ee ORDER

fefores WEICK, C irenit Judge,. BOY D and THORNTON,

— strict Judges.

h petitfon to enforce an order of the National Isabor

“ ae Board.

“This cause came on to be Heard on the transe ript of the

record from the Natioval Labor Re tations Board, and was

argued b¥ coungel, ;

One consideration whereof, it is now ordered, adjudged

~and deere ei by this, Court that that portion: of the Board’. -

order: requiring cessiition of coercive activity anc& the post-

ing of notiees relating to. these violations be enforéed. En

forcement of that. part of the Board order rearing the

respondent to offer reinstat. ment te the charging parties

sand to make said partie: whole is denied.

™~

a ~

fee » Approved forentry: —,

; */s’ Martian S. Boyn.

United States District Iyndav

(Sitting hy Designation )

™

ne . a a O's

APPENDIX -

UNITED STATES COURT OF APPEALS

FOR = SIXTH CIRCUIT

"NATIONAL LABOR RELATIONS BOARD,

| Petitioner,

vs.

FRED HH. JOHNSON, TRUSTEE UNDER THE WILL

OF CLAY M. THOMAS, DECEASED. D B.A

ATLAS IANEN aXD INDUSTRIAL SUPPLY,

4 Respondent.

Ae ae, 2 ge : :

.ON PETITION FOR ENFORCEMENT OF AN ORDER

OFr THE NATIONAL LABOR peeve camel

[Decided Se: plember 4, 1963

‘ Before: WEICK, Cirenit Judge, BOY Se THORNTON.

District Judges.

BOYD, Distriet Judge. Pursuant to Section H(e), Na

tional Labor. Relations Act, 20 US.C., Seetien 16H (© +). the

. National Labor: Relations Boa “d has petitioned this court

* enforgement of its order’ agains} the respondent, a

cleaming. and linen supply, establishmeny” which furnishes

Its sery ices tO industries in the ¢ deans Ohio, area and

‘which is owned by a testame ntary trust. ‘The jurisdiétion of

the Board im this matier is.mot 2 subject of contest. The

Board fouml that respondent. violated Sections Sta) (33)

ancl *{ b) of ‘the Aes by: dise ‘riminatorily discharying certain

of its employees, who were engaging at the time of. the

alleged discharge in a protected economic strike of re

£¥-CA-1925; 130 NLRB 761, 181-NLRB 1286, 136 NLRB 922.

©}

: 2 “1, 78 Stat. 525N

. :

spondent’s s two pli wnts Hb Columbus. It pa found that

certain “couchict on part ‘of re spondent” s manag ore repre

sentatives constituted coercion and interference An vio: vation

at Section, Sta) (1) of the Act. |

Commencing im February, 1 oy re ponder nt’s produc tion

and maintenanceemployee s were -the object of an organiza

~— eamMpaign waged by District: 30. United Mine Werk

. eh America, One Paaifico, Biel Representative of Dis

tric

a0, apprised the production qa maintenance, em

ployees that because of District a0" ~-failure to comply withr

the affidavit filing’ apes of the Tew- repealed! Seu

ht. the Union could not peti I

“tion 91), (x) and Ay) at the

tion the Board for e réprese ‘tation elsetion and that con

sequently a ~trike for reeggnition Avis foreseeable. No

opposition te awh, a course Was apparent amoys the ene

ployees. Letter Efe’ and meetings with mahagefent repre

sentatives of cespondent | fared 4 Oo -Te sult in recognition

mass meeting of the pr roduc tion and Znintenanee employees

was addressed by Pac ‘ifieo, ‘he informing them tliat it was

time to reveal the 0 nion *. strength. “* strike was enlled “:

for the following morning. Approximaiels two peed

: slifty of respondent's three hngiilredd production aiid mainte

“ ance employees reported for picket, duty. That afternoon

the number of pickets Was limited by vourt order from the

“Franklin ¢ younty Court. of Common Pleas. Ht snfifs for

our purposes TO hers observe thief the strike f failed and thie,

“striking employees requested: 1 reinstatement on April 15.

Those denied relbstatement on this- oceasion, * made addi

tional efforts tpward red instutement. Those who were sue

cessful An “this retard were. “Aold at the time yh reinstate

ment that they were ‘heme taken hack as egy ‘nployees.

having lost their SeTOPitY and vae ation benefits. fe nine

teen charging parties herein were never reinstated.

*s progres satisfactory: to Distriet 0. On, April Q, 1959, a-

The complaint ijsned by the Beard charged phe respond

ent with violation, of Sections % 4) (1) and (3) of the. Aet

in that the rebspomident refyised to reinstate or reemploy the

‘charging parties upon te rmnjnation of the strike ang follow

ing their requests, for veinstatement. The compliiint , alse

charged S/n) (1) violations, te which there will he briet

referer ne ee ly ter. eh Peal <3 °

An impoftant question “ot” administrative procedure iv

presented/ by: this petition, Although there ix no mention

of diseriminagiry discharge ay thy: complaint issued by the

Board: against tits cospondent, the Trial E samihes found

these charging parties, Nee hiive been diserim! mnaterily dis

tharged im Cidlation of Seetion SC) (3) of the MA. An

exception to, the Trial Exayniner’s finding-on this point was

taken De the respondent, In- its. initial. decision und order

oard Sound. this exception to be well taken. Mn said:

* jue) that charging parties were disgriminadorals dis

chifeged ow the first day of the strike.” We Find mer

aT this-exen eyion. Wi note that the complaint herein

did. not Riete discriminatory discliarges: rather the

*. complaint alleged. that the charging parties engaged

inean®economic strike and that respondent violated

Sin) () by failing te reinstat® them. Maértower. the

ese as to whether threvs wien re’ dlisehorwed. was cnet

fully litigatedsats the hearing” Nccordimely we Go net

adopt the Trial, ‘Exaniiner’s, finding in this report,

However. we do find in ageeement with ihe Trial Rx-

oo gmther and as alleged in the compigint that the re

spondent violated Seetion Bin) 21h) of the Aet DS

failing to reemiyphos the charging warties.”"*...-

As indicated? in thy tncten excerpt, “thi, Board cid adop

nm? a" . si ‘ iad ip “ 7 ™ * .

the Trial Examiner's firiding that there was’ an unlawtu

failure to reemploy saith oben charging parties. Thi

jerees :

2, 180 NLRB. 791" at 76: , : ;

& 5 —— —- . , . ;

Respondent EXCEPTS to ihe Trial Fix: rmtner*s “fred -

o strike was an econcmic strike. is distinguished from an

unfair Jabor pract! ces strike. cae strikers are en

titled.to re Insts itement following an econortde strike -unies-

‘the employer has. replaced the strikers, Nationa? Labor

333. The

> that there

dacement!

istate

t from.

Relatiqns Board v. Mackay ( ‘Tompany,. 304,

Board eenelnded in its first -eersion. and orde

was nothing | in the record before it to iInglicate £

of the charging pArti®s prior to their requests-for re

ment. The wre spondent Wiis orderad to eease and desy

the unfair practices ‘found and, affirmatively. to offer xe

_jristatement to the charging ,arfies with hack pays Qh peti.

tien for enforce ment of its order Wats ‘filed by the Board in

this court. “heave to vol\Wntarily withilraw its petition with

out prejudice was then sA ior b¥ and ‘& rarted to the Board

by orderof the court. The Board subsequently entered its

Stpplemental Deeision and Ort Hor’ which iS featured by a

complete reversal of its original position, Upon recon

Saderatrion of the cave the Board found insufficient evidgner

ot unlawful failure fo reimstate eeonemie strikers, hunt found

“snflicae nt evidence of diseriminatory discharge of the w ithin

charging partics on the first day “i the strike . The Board’

original order was thus, for tHe most, parts. kept intatt.

Upon its reconsideration. the- Board found that the allega

liens in the. complaint were lero enough to dnelude ts

crimanatory discharge and thateat any rate, the diserimina

tory discharge peet Was fully litigated at the hearing be

_fore the Examiner, From our ex: iminatioy of the ¢ omplaint,

the ayplicab le law and the record as. a whole, ye eanno:

agree that the language of the compli int Feasonably gave

netice-of the issne of diseriminakyry discharye, Norcan We -

‘agree that the matter .ofe dtscrimimatory: discharge was

fufty litigated. |.

8.134 NLRB. 12541

x ° m4 | , — ; . j “a

The office of the complaint isstied by “the ‘Board is te

‘notify’ the adverse party of the claims that are to be

aajudieated so that he may prepare his ‘case, and to sé

a standard of relevance whigh shat govern the proceedings

at the hearimg.”” cies ! Sas riational Lonashoremein »

Assoc dation, 241 F.2d Jim CC. A. 2) 19572 The Administra-

tive Procedure Act, 9 USCA Section 10G46a). requires

that ° tp Jyersous entitled po Grice of an agency hearing

shail he litnely informed of... (3) the matters of fact

and law asserted.” In ree Board vl. B. Fletcher Gow,

pany, 298 F.2d pet. OC. A. 1) 1962. there was ne mention

of the found Violatioy iM the complaini. After concluding

that the issue there involved had also not been inigated at .

the hearing. the court observed at page GOO that ‘it wonie

derogate elemental concepts af due process to grant en

Jorcement to sie ha findits vy.’ No little juggling af theory

‘is necessary in order to new place the issue of diserimina

tory discharge m the within corp: Lint sa.as To have put

‘the responde nt on notice thereof. hr this C: mnection tiiy’

complaint asowe read.it alleges an @uomiae strike ane

failure en reinstate thefaharging parties. ‘Phe theory is

Slee There ix no réference to diseriminatory dise harge

conee rning the failure to reltstate Grius a wioli aLion im atsell.

Diveriminatory discharge inal violation of Section Sta) fy

and failure to reinstate oh reque st followipg a diseyiminia

tory ise harge is yet another wiolation, but the ‘esti abtrsl

ment of the fatter finds ine vitable focus Upen the diserimi.

natory.disqaarae We would avoid the obvious were we to

eerloGK. int-ontinsidn of any reference to disc rrp ays

discharge in the’ complet, whith, when the ‘allegation-

that are: present are considered, toads to port away prom

‘ contemplation ot otthv ‘theor i of diseriminators: alise vec

It must be borne in mind rhitt we are here deahng with a

question of fundamentid fairness. Reasonableness ~ th

’

ov)

“

touchstone. While the Board is certainly free in pretection —

of the public iiterest entrusted to it to change its collective

mind, it appears rather indieative that clear doubt’ as to

notice of this issue must have existed upon re dition of its

‘initial Decis “lol and Order. Was responde lil ap prised or

steould it re’isonably have been apprised: by the complaint

of ‘the issues Tt was obligated to meet” The answer must

be in the ne ative. The vaapene of ple ading in and

indictment, declaration at law, or bill in equity is not re-

quired ‘of a-complaint faa the Board. Cousnmers +

£ ow er€o.e. Labir Boarth As iad OS (CAL 6) 1940. How

ever the principal function of the ceomplaint is notice and

it did not Serve that purpose here. er 4

Was the issue of discriminatory dischatye: fully litigated ! a

liso, the respondent caimot be heard to complaint of jack of

opportunity Lo meet the charges against it even though the

complaint be found. lacking: for a complaint may be ame mnded

to conform to proot adduced on the hearing. Laker Board

Puerto Rico Rawow Miils, 295 Fd S4b COL AL 1) 1961

"At Several points in the course of the bearing counsel for

oe -spondent objected to evidence or testimony Derarin own

matters not allege vi in the complaint. The Trial Examiner

overruled the “objections but assured the respondent. that

Dike. evidence was being admitte d for background purposes

oniy; that if theré was no corresponding allegation in the

complaint the evidence admitted would Hot be-considered

us the basis for a‘tinding of unfair labor practice. The

“evidence upon which thie Board pleccd” greatest emphasis *

caneerning discriminatory discharges was the notation

upon the employment cards yt the strikers to the effeet that

they had voluntarily quit on the tirst day of thy strike. “1

is to be noted that one’ of re ~pondent’s management repre

‘sentatives testified that these notations were made for

. ai

, ‘ ;

orw i tistanding

these possible references fo the difchatge is\ue, ups con

sidering the record as a whole, We ennnot akoid the cor

clusion the discriminatory discharge was an /ssue unrecoy

nized by the respondent and net one Mould have bee

readily perceived from the progress of the proceedimes. We

cannot dind trom this record as did the Supreme Court trom

the pecord before ittin Labor Board ce. Mackay ¢ OM Pun),

. . . ° e

fyprc. that there Was wo misunderstanding as to the basis -

‘of the Board ’s complaiied. The Covet observed in that case:

‘ ; ‘ ee

White the erespondent was centitied to know the

chasis of the compdaiot against it, aimed to expla it-

“conduct inoan effort te -smeect that complanit, we find

from the record tat 1 HieTeteod The issue and wa-

aiforded full opportunity fio justify. the wetion of it

officers as innocent rather than discriminatory."

The His QiVvines entertaiied tA “The Board as to Motice spel

full hearmg upon its initial consideration of the case we

fine controlling now.

The “Board found “cortain conde! on the par of ore

spondent = represegtatives Le Comstitute - elon aT Viol

lien ef Section Sta) (1) of the Net. We detect ne prejuds

-claberror in this findings atid consider them to be sapported

by substantial evidence. Caecersa! Camera Corp. 0. bate:

Board, 340 U.S, 474. <* i |

To that portion of the Board’s order requiring cessation

of such COPTELVE aetivats and the posting of notices relating

to these violations we grart satorcenent. Mnforeesnent ol

that part ofthe order reqniding the respondent to offen

reinstatement to the charging parties hergin amd to make

‘said parties Whole is denied.

3 a

Lat page 300 . =

hae ;

7 ?

acted

;

e ‘mrlove y-

1A :

APPENDIX C 5

The relevant provisions of the National Libor Relation-

Act, as amended (61 Stat.,136, 73 Stat. 519, 29 ULS.C., Sees

liliet seq.) are as follows : ‘ae s

* > # * . * He. * "’

_° ‘Rights of Employees

‘ ~ . . eS 7 . °

Seo. 7. Employees shall have phe right to s@if-organiza

Lion, to form, join, or assist labor o: ganizations, to bargain

‘collectively through representatives of their own choosing,

and to engage in other concerte ul activities for the: purpos:

of collective bargaining or other mutual aid or protection,

and shall also have the right te refrain from any or ali ot

such activities execpt to the extent that such right may bé

affected by an agreement requiring membership inea la}er

organization as a condition of @uployment as authorized

in seetion-:s (a) (3).

Unfair Labor Practices i

arc. s: (a) Tt shall be an unfair labor pr etic: ‘for an

(1) to initerter re. with, restrain, or coerce emplovees i

the eXETCISE of the rights enarantecd Im section 7 =

te . tig oe . ° .

(3), by diserimination in reward to hire or tenure of em

ployme Mt or any terior commtion of employmer nt to en.

courage or discourage Rie ‘mber ship in any labor organizgi

tion.

Prevention of Unfair Labor Practices

Sec. 10 (a) The Board i ix empowered, 2s heréinaftes

provided, fo prevent any person from engaging in any une

fair labor prac lice (listed in seetion 8) affecting commerce.

This dah #2 Pxtiall not be attected by any other means o!

-adjuetmernt or prevention that has-been or mag be estab

+Qed by agreennt, law, or otherwise : :

—

“the day of his discharge. Any sue

(h) Whenever it ix-charged that any person has engagéd

in or is engaging in any such unfair jabog practice, the

Board: or anv agent or ageney designated by the, Board

for sneh. purposes, shall have power to issue and cause te

‘be served upon such person a complaint stating the charge:

‘mm that aie te and containing a notice of hearing before

‘the Board or a member thereot, or before. a designated

agent pr agericy, at a place therein fixed, not.less than fixe ——~—

,iays after the serving of said complaint» Provided, That

ner complaint shall issué based upon any untair labor prac

;

tiem ocenrring more than six mouths prior to the fing of

the charge with the Boafd and th. service of a copy thereot

upon the person agamst w hom such charge is made, unless

~”

the person aggrieved thereby was prevented from filing

such charge by reason of servier in tbe armed forces, 1m.

whieh event the six-month period. shalffhe computed from

complaint may be

amended by the member, agent, or ageney condneting the

hearing or the Board in its discretion at any tine prior te

the issnance-of an order based thereon. rn

fc) * * * Tf upon the preponderance of the testimony

taken the Board Shall be of the opinion that any ‘person

named in the complaint has engaged in or js engaging in

any suth unfair labor practice, then the Board shall. state

its-findings of tact and shall issue and canse to be served

on such person an order requiring snech person to cease and

desist from sneh nafair laber practicon, and 16 take snel

affirmativ e action ineluding reinstatement ot « mpleye es

with or without hagk pay.as will effectuate the policies of

thia Act: * * °

° ° ° . , , : : ,

te) The board. shai have power to petition any conyt.

of appeais of the United States," ° * within any cireuit’

"* * wherein the unfair labor practice niquestion Ge

curres| Or whereih such person. resides or transa tts busi

Hess, tor the chforcetent of such order and tor appropriate’

temporary relief or restraining order, and shia) fiteg im the ”

court the recor in thee proceedings. us provided i section

ZIZ ov titte 2s, Us Listed Nuaiy> lode Lopon the tiling of such

“petition, thes court sdial! “ise “pretgce thereat fo te serted

: a pen such per sor, and thereupon shall have jirisdie Tot ot

. the proceeding and of the duestion determined therein, anc

_ ing order as it cee mes just und prrenpeer, and te mathe ane

enter a decree enforeing, modifying, atid entore INL as se.

mioditied, Or eettine aside in Whole or , part the order a

the igh No olyjeetion that iat tet as irge do betore th

Board, its member. agent. or agener, dhisli-be considered by

the court, Unless the failure or tewiegt 1 tinue sueh olf

; “ * yeetion shall be exeused because of extraordingery cireum

‘ stances. The findings of the Board with respeer te ques tioti

ae aft fact if SUP partes! bys ~ aber Taanitdaa ae m thie recare

ae considerpd as a whole shali be er ee thier party

~hali apis te the court for tease te i ape pec evie

ile: nee eis Chall show to the <atisfaetifn of the courd that

7 Srensonable growurds for the fuiitire te acdc stich ev dence

~ in the hearings before the Board. its memes agent. or

Rieecieemees Say courLoamay verder such addition: ecidenes le

* he te before the Board. its member. agent, or ageney

= wed wer de made a part of the reeard °° ° Upon tite filing

of the record with at. the jurpsedte toate at the Gourt stall te

7 a - » e » 2 ‘ : ‘ ae . Dae

5,4} exelustVe atid tle padument abel decree stale te Hal, EXCEPT”

PEE iat that the ‘samme <hiiil! ive: subject to vevaew bs the | i

Supreme Court of the Dnited State. upon writ of eertiorar

aan aes or eertifieation a- prongs eel WN sere nent WAV of tithe 2s

: ‘ ‘See. 18 Nothing in thes Act) exept as sjiecifionlly pre .

; ; vided for hevein, shalf Ve coustried so us either qe rein

with or impede or diminsh many wei, the righ? te <trik

i or to affert the Hinitiftionrs or qumlitiest ions Por hist ih?

oe ‘ ‘ -

sie “ i e ‘5 | ;

shall have. Srower te grant such temporary relie! or restrain

ewe ts.

amrcnaoe

; ; "APPENDIX D

UNITED STATES COURT OF APPEALS

YOR THE SIXTH CIRCUIT - °

Ot Sang

Tye de dK WEL \TIONS BONED,

Petitions r.

2. : Vs.

* a z

GED AH. JOJENSON, TRUSTER UNDER THE WILL.

OF “CLAY M. THOMAS. DECEASED, Db BON

ATLAS LINEN AND INDE STREAL aPPLY.

Respondent

ORDER

: (Filed November 29. 1465 .

Hetore \\ Kit K. Chief Ards, Kell, and 4eSULLI

VAN, Cirenit Padie-

This cause came on te te heared Or tha gunsoticons fibect tes

Mollie S Tavier, Mary 7, Ween? frey L.. Bostic. Puanita

iMorakedson, Grace Narne-. Pisitliy by Me dbes iow Hag:

Minta bustier. OM Ki G3 Dovid Wo. Phadi. DMete Do Newedi

Vieforia Branham. Mar “Hs Gialbredth, Delia M (i lae<or

bheetubaadi Kuli. Magic. ti aibesak: Adie rt @ Rucker Poetts

all. Tarot lates | omer anil branes ( Burkard ten

peegaves Tas rnervene Si~ poet rt iestaect =. Teet thie Lat pnerSe cot pre?

beevtidigr aal tip epneat tae thee SSuaperetge: fcomgrt, aati came The meme

* ; vs ’ : ov .

vsepechiam~ cof thee veespeonvchenst gapea bine Poured a opment ia

thieveter 0 fcobeveicdes Tat bend whrerect., the (oon ha

. °

ruestiaet: tar FRafervetie I> yeeel taken wane ~ fperrartete orrvant:

. y " : os ; PR We

“International Union @ Mine. Mal and Smelt SR ook arial

Ai ; beetle .

Lowin 7 hag RPicheor Mista ave S jae TD erage peel | Pin”

Rs 338 ede

The wrotion Sor legaye fo intervene ied ta begdign oi

lietriet DO, Tnited Mine Workers in. berepy denied

7 - : : = I’, os AA RICK

/ } » Ui i lol “]

—

. é > -

APPENDIX E

COMPL MINT ORDER CONSOLIDATING | CASES

AND, NOTICE OF HE ARENG

Vaiair. later. (pragice charge Arnal Amended (harge-

having berg fifa bv Mollie So Tavtors Mary J. Wagner;

Inez’ L. Bostic; ‘Fuanita Donaldson, Grace Karties, Phillip:

kb. MeBee, Flove Hall, Mints Justice, Otis Kinney, David -

We Hall, Pesae 7 Newell, Vietora seeped Mary ” area f

iYit

Gilbreath, Della M. Gleason, fomial uli, Ma

brook, Albert To Kueker, Betts J Hall, Harold James

Comer ana Nenisni C) Barnard, against Pred H. Johnson.

‘ ruster Hider the wiltgot ¢ ‘lay M. OT! Loti i~- deceased, doing

business as Atlas Linen and Incustrial Sapply, herem called

the Respedent. which Charge- and Amended Charge-

liave beer duke se. -d npot the Respondent, a> @pwcitically

allearer! below, pursaant te Bection 1a (hy of the National

Labor Relations Net, GJ S1at. 126. herein called the Net and

Section, 102.15, Series 7. as amended, of the Rutes ane

Re gulation= of the National Labor Reiations Board, herein

@alfod the Boara, tng General. Comusel of the Board. by the

indersigned Regional! Director, issues this #’omplaint -

against the Responstent. and Noties of Hearing thereon, and

alleges that: : . Aes

1) The Charge- And Amended Chatge- were served on

the Respondent by mailing two copies thereof to -him via

Registered Triited: States Mail on the daté< indjeated in’

Schednuie Ay attached hereto and made apart hereof.

(a) Atlas Linen dnd Industrial Supply isa busines

oftorprise operated by Freal bb Jehwson under a testamen.

» tary trust established by the will of Clay M. Themas, del.

coased, As such trustee. the Respondent i- engaged in

“Cotnmbns, Ohio. in the Jusiness of supplying linen, uni

form~ and industrial cloths ny te business enterprises and

°°

-H. Hoi ¢ -

’

the Respondent ta reemploy then

“ 24

individuals i in i the Columbus area. Durjng the calendar veut

LDS, a representative: period. his gross voltime of business

exceerled $5 000,000,007 arid he pure hased in exeess of FIO

“MKOO worth of Tren ane industrial clothing from’ supplies

Jocated outside of the State of Ohio. “3 Sika

(by Now and at all tines matePial te the j issues here i,

the tt tapreigs is and has been. an Employer a- détined in

Section 2 | 2) of the Act, engaged in “eommeree”” and or in

operations “affecting Commerce” as defined in Seetion 2

(6) and (7) of the Act respective ‘ly ;

3. Now ma at all-times material fo the issues herein

District 50, United Mine Workers: of America and Inter

national Brotherhood of Teamsters, hauffeurs, Warehouse

‘Toamsters, respectively, are and have been, labor organize

tiapS as detined in Section 209) of thie Wet. eta

ah Ae times material te the Gsues herein. LeRov

Houck Jester. Yerian, Charles Allen and Howard Smith,

herent called Houck. Yerian, Allen, and Smith: tr<pi-e tively,

have heen emploved by the Re pendent as. supervisers a

detined if Seefion 2 (1Libieet the Net.

. e- od . , . *s ae *

eT, From or about Npril Oo. 150 te April D4. Pot, th

employer ~ of Re ~ponde nt kh mplover, rates! Wn Se here} ule B.

attached hereto aired peytele co part hereat, engaged iti aa

- * Spy: - € .

economic strike. °

7. thi of abont April 14. 1050) said striking eliplever-

reepuestenl this Respondent ter veiustate thom teiersi at don thi

same date. and continuousiv thereafter. they alse rediaiested

Sofa) On or abant April 1 15. and ‘aooall time-

‘thereafter. the Réespondeit refused te retustate: said stk

ing emplovees; eS ms

~ emplovees; :

Be Mat ae 30

(>) Oni or about April 14, 195 mh, and ai aif times there

after, the Respondent - refitsed ty “eemploy said striking

nn 6

fe} Onor shout April 14: 1959, and-at alk times there-

after, the Responde mt refused ti reinstate.and or to reeni.

‘ploy said striking empjoevees beeause of their activities

described in Paragraph 6 above and: because of their mem

bership in, svinpathy ‘for’ and ‘concerted activity on behalf

cof District hand or the Teamsters.

3 By the acts and condnet alléged above, the » Bespond

cent has engaged in and as engaging in unfair labor -nrae

tices as defined in Section Stay(1) and (3) of. the Act,

affec ting “ecommerce” as detined in Seefion 2 6) of the Act.

. * eo As We a, AN * __ davies as * * .

-“@

r Sd | ‘% * * : y

PROOF OF SERVICE. .—-—- ~~.

The undersigned ‘hereby certities that onthe —_. laay of

January, 1k, he served copies od the foregoing Petition

Re Writ of Certiorari on the Attormey~ fer the Respond

ent, Fred: He Johnson, trustes, dba Atlas Linen and Tih

dustrial Suppiy by wersanally serving Robert EL Newson,

Attorney, S Kast Broad St.. Columbus. ad ty mailing it

vopy by United States Mail, postage prepaid, te Jack Gi.”

Yivans & Thomas S. Calder, Kay. Dinsmore, Shohl, Din-

more & -Todd, Union Central Lite Building Cinejunati bee!

Obie. rhagt ge

The undersigned furthe: certilies that on the same ahat

he served COP LES of the Petition herein on the/ Nationa!

Labor Relations Board btumailing a Hopy of, the Poaitte

herein bie CLS. Mail, postage prepaid. te Mareel Meller

Prevost, Assistant General Cainsel, Natt lonai Lasihvon “Re

‘lations Soar, Washington. a ie and to. The: Solicitor

C’ * Srewartr-R. SPRY,

: *. ullforney form Pett onvve

oe ng . . <

e :

‘ .

o%®

. : .

= .

° + {[%e;, 0

— oe o ”

4% {)

4 ; “

ry =

Fs : rs

‘General ofthe United States Denartuient vit Niastiden ;

Washington, be | S 70m fe aioe a

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