# Petition for Writ of Certiorari — United Aircraft Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1508%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 951 ## Text . MEDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus. 15, Ohio ae ee / _ ||. Office Supreme Court, U.S. “ih Picea... 3 7 d = -Ts 29 1964 oo, JOHN F. DAVIS, CLERK IN THE f CH eas "Supreme Court of the United States ay ee aa oe ° 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 4, ~~—PETITION FOR.WRIT OF CERTIORARI — Srewart R. Jarry, . 42 East Gay St, Columbus; Ohio 43215, — .. Attorney for Petitioners. RB . : : st . My pe ; i . ; 2 e - INDEX 5 : eyecare 2 Q (jtation te Opinion Below 427. - COLOR ECE S gal, _Juriadiction ...--------:s¢2°° Seances oe% Ks Be (Juestions Presente ‘ a the 6, a Cause on September 4, | esemeerefgnentn omemnenansrenys ates Gonmei nee ee ee . * — . e 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 = = ~ - = . 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 a .* 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- vfischaree SOTHO! Me whe | rbsent witht eathmw Mhe Witres re fort af Causes ia eirhe it get to the phere De talk it ont awa them." at . . "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) oO te | a) ‘. 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. ), 5 “ 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 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, ae 3° | “” ——— a . 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 . 4 . 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 ty f pabrlies clyies . xf _ hi iat i “~ . 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 i> baatix te aiiewe Vipkatee! or afbawes the or IMictake, Ho 11) etoe- prevent the. Board Drom: eon soy Eee padead.?” . c 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 . © 7 . 2 ‘ . . ev 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 "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 ‘ . “v a . _ . : * ~ . = ° * ? . 7 . « - Sa be lo - - . ‘ 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 4 ; carey \s ~~ ° . ‘ Se = - - ‘36- aq 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 ee "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- s . 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 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 ’ a 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 i . 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. # * . * 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, y 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 : : a — “the day of his discharge. Any sue 0 ~~ (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 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 “] i, me ° ° > © — a eh . 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) 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 * * . - - -“@ 'e 3 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, fe 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 ” a 4% {) : * 4 ; “ ry = ? Fs : rs ? ‘General ofthe United States Denartuient vit Niastiden ; Washington, be | S 70m fe aioe a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1508%3A2. Public record. Not legal advice.