Petition for Writ of Certiorari — Oil, Chemical & Atomic Workers International Union, Long Beach Local No. 1-128 v. National Labor Relations Board

Supreme Court brief1968

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Text

Office-Supreme Cou

October Term; 1968

wet e

OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION,

LONG BEACH LOCAL No. 1-128,

Petitioner,

v. et

"NATIONAL LABOR RELATIONS BOARD.

. and

MACMILLAN RING-FREE OIL COMPANY, INC.,

4°

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

: _ FOR THE NINTH CIRCUIT.

~~® =~ JERRY D. ANKER

_ 1730 K Street, N.W.

Washington; D.C. 20006 °

JOHN TADLOCK .

~~ - JAMES J..CRONIN

eae 9 - 1840 California Street:

Denver, Colorado 80201

_____ Attomeys for Petitioner ___

- Of Counsel: | | Pa

COLE AND GRONER .

1730 K Street, N.W. 4

Washington, D.C. 20006 «_

“3

—

, OPINIONS: BELOW :

| JURISDICTION .

TABLE OF CONTENTS

QUESTION PRESENTED .

° od

STATUTES INVOLVED Pee es

STATEMENT OF THE CASE }

The Facts As Found By The Board .

‘The Board’s Conclusions

“The ene Of The Court Of Appeals

REASONS FOR GRANTING THE WRIT

CONCLUSION ss

_ TABLE OF CITATIONS —

: Cases:

Banner Die Fixture Co.,

109 N.L.R.B. 1401 (1954), 115 N.L.R.B. 1692

(1956), enforced, 42 L.R.R.M: 2604 sii Cir. .

-1958) ‘ ; cas ;

f _ Bowen Products Corp. bs

113 N.L.R.B. 731 pede

Dan River Mills, Inc.,” .

125 N.L.R.B. 1006 (1959) — o Seems

FTC v. Cement Institute,

333 U. S. 683 (1948)

< General Teamsters Union, Local 912,

120 N.L.R.B. eileen ee ee

TARA nse Hert nT Op GUERRA SORE tbibaicl ear £ iia oe SP OTRAS SS PMY "

COP EGO EE

a oo

Greenville Cotton Oil Co.,

92 N.L.R.B. 1033 (1950), affirmed sub. nom.,

_ American Fed. of Grain Millers v. NLRB, 197

“

International Union, United sensible Workers,

v. NLRB, 363 F.2d 702 (D.C. Cir. 1966) cert. carats

denied, 385 U. S. 973 (1966)... ae SS

Local 269, Int’] B’hd of Elec. Workers, ; ;

149 N.L.R: B-768 ities enforced, 357 F. 2d |

$F (3rd Cir. 1966) . Se ae eee le ee 26

a ‘ Local 1424, Int’] Ass’n of Machinists ‘ v. NLRB, s:

~ F.2d 451 (Sth Cir. 1952) . aa oe eee

362 U.S. 411 (1960)... . . . 4,9,13,14- 17, 18,23

News Printing Co., : |

1J6.N.L.R.B. 210(1956). . . 2. 2 2s 23-24, 25

">| Newton Falls Paper Mill, Inc.,

144N.LRB, 1470(1963) «2. oe

NLRB v. American Aggregate Co.,

305 F.26S59(Gme Cis. 1962) ww in ele ote oe t Sheed

‘ NLRB-v. Brown & Root, Inc.,

203 F.2d 139-(8th Cir. 1953)... 2). 2. «21

/ Paint; Varnish & Lacquer Makers Union,

MOULD OR

. Paramount Cap Mfg. Co., |

119 N.L.R.B. 785 Kile enforced, 260 F. 2d

109 (8th Cir. 1959) . ae p's

Philip Carey Co. v. NLRB, 2 Aone ie

331 F.2d 720 (6th Cir. 1964), cert. denied, pute. are

ee ee ere eee

Sheet Metal Workers’ Int'l Ass’n v. NLRB,

: 293 F.2d 141 (D.C. Cir. 1961), cert. denied; . .

368 U.S, 896(1961) . . . ... - see . . 17-18

Swift Service Stores, Inc.,

169 N.L.R.B. No. 33, 67 L.R.R.M. 1181 |

(Jan. 26,1968) . ... ee ie ae ke ae 27

AANA He MOE LOST OIE HM ER MI AIR AE ENN TORE, EMER IE LS RI TSRENEG SI NATIT SIE TC nope meee y eens COBRA PE CMME RE ANTAL?

i a

Tennessee Knitting Mills, Inc., —

88 N.L.R.B. 1103 (1950)...

Universal Oil Products Co., °

108 N.LR.B.68(1954) . . 6°. 5

: : Statutes: ; Me

- National Labor Relations Act

§8(a)(2), 29 U.S.C. §158(aX2) .. .

—-- §8(aX(3), 29 U.S.C. $1583). .

\” $8(a(5), 29 U.S.C. $158(aX(5) .

— §8(b)(4), 29 U.S.C. $158(b\(4)

§8(d), 29 U.S.C. §158(d) . 2s.

_ $10(b), 29 U.S.C. $1600).

«BW US.C. $12541). ..

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Ge Supreme Court eh: the United Bates

seer. October Term, 1968

No.

OIL, CHEMICAL AND ATOMIC WORKERS

- INTERNATIONAL UNION,

LONG BEACH ‘LOCAL No. 1-128, 7

‘ - Petitioner,

*. Ve

NATIONAL LABOR RELATIONS BOARD .

» and |

MACMILLAN. RING-FREE OIL COMPANY, INC.,

"- PETITION FOR A WRIT OF CERTIORARI TO

. THE UNITED STATES GOURT OF APPEALS.

FOR THE NINTH CIRCUIT =

Petitioner prays that a writ of certiorari issue to.review

. the decision and decree rendered herein by the United

‘States Court of Appeals for the Ninth Circuit on April 10, ©

' 1968, and May 1, 1968, respectively.

_ OPINIONS BELOW

The opinion of the court below is speed at 394 F 24 are

_ 26, and is reproduced in the separately bound Appendix _ aa

- this — ne cited as —_ ”) at page I. _ .

‘ w

3 >

PC ae AIRED ARUN EER RSE EEH REY. NE ITED mane _— siicacaahs sh tiie hp Mceest( Eto an memreene oars

kth ap CS : : A Bat nen Dene 1 oe 26 F

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Decision and Order of the National Labor Relations Board,

including the Trial Examiner’s Decision which the Board

adopted, is reported at 160 N.L.R.B. 877, and is repro-

‘duced at App. 18.

JURISDICTION no _ “4

On April 10, 1968, the court below issued an opinion

holding. that the order issued in this case by the National

Labor Relations Board should be enforced only in part,

_and that the remaining portions of the order should be set

aside. On May 1, 1968, the court entered a decree in

accordance with its Opinion, enforcing only a part of the

Board’s order (App. 15). On June 24, 1968, Mr. Justice

_- Douglas entered an order extending the time within which

_ this Petition might-be filed to and including July 30, 1968.

This Court has jurisdiction to review the judgment of the

coutt below by writ of certiorari under 28 U.S.C. § \

12541). |

QUEST ION PRESENTED

Where the National Labor Relations Board has found,

_ on substantial evidence, that an employer failed to bargain ©

in good faith in the six-month period preceding the filing

of an unfair labor practice charge, may a court of appeals

_. set aside the Board’s decision solely because the unlawful

4 ‘purpose and character of the employer’s conduct within

the six-month. period was established primarily by examin-

"ing it inthe light of the history of the entire negotiations,

which had commenced more than three years prior to the

filing of the charge?

ST ATUTES INVOLVED

_” Section 8 of the National Labor Relations Act, 29 °

U.S.C. $158, provides in pertinent part as follows:

(a) It shall be an unfair labor ‘practice for an

* employer —

see &

4 |

(5). to réfuse to bargain — with the

representatives of his employees. .

5 **s*#**

’ -

”

(d) For the purposes of this section, to aiiiie

collectively is the performance of the mutual |

obligation of the employer and the representa-

tive of the employees to meet at reasonable

times and confer in good faith with respect to -

wages, hours, and other terms and conditions of

— OF the negotiation of agree-

ment. . .

Section 10(b) of the National Labor Relations Act, 29.

U.S.C. § 160(b), provides in pertinent part as follows:

“Whenever it is charged that any person has

engaged in or is engaging in dny such unfair

labor practice, the Board or any agent or agency

designated by the Board for such purposes, shall

have power to issue and cause to be served upon

such person a complaint stating the charges in

that respect... Provided, that no complaint

shall issue based upon any unfair labor practice

occurring more than six months prior to the

' filing of the charge with Board and the

service of a copy thereof upon the person

against whom such charge is made ‘) oe

STATEMENT OF THE CASE

On November. 10, 1964, after more than three years of

fruitless collective bargaining, Petitioner (hereinafter re-

ferred to as the Union) filed an unfair labor practice charge

against Mespondent MacMillan Ring-Free Oil Company |

(hereinafter referred to as the Company), alleging a refusal

to bargain in good faith. The National Labor Relations

Board reviewed the entire record of the negotiations, and

found that the Company had not bargained in good faith

at any time, including during the six months prior-t6 the

filing of the charge.. The court below set aside the Board’s

decision. on the ground that the finding of bad faith was

o . CO ALLO DOLL NAO

vue . “ = eee

DB: a

supported primarily by evidence ‘of events which had .

occurred outside the six-month limitation period pre-

scribed by Section 10(b) of the National Labor Relations

Act, 29 U.S.C. 8 160(b).

This case thus squarely présents the question which this

Court expressly left open in Local 1424, Int'l Ass’n of Ma-

chinists v. N.L.R.B., 362 U.S. 411, 421-22 (1960)-whether

a finding that a unfair lavor practice has been committed

within the limitations period can be sustained where “the

merit of the allegations in the complaint is shown largely

by reliance on earlier events.”

In order to understand the decision of ‘the court of

appeals, it is necessary to review the findings of fact on

' which the Board. based’ its conclusion that the Company

had failed to bargain in good faith. We turn, therefore,toa

summary of those findings.! |

‘The Facts As Found By The Board

At the time this case arose, the Union was the collective

bargaining representative of the préduction, maintenance,

and plant clerical employees at the Company’s oil refinery

at Signal Hill, California. 2 The parties’ first collective

Lr a

Board and in the court below, the court did not disturb any of the

Board’s fact findings, and the Union does not challenge any of them

here. It should also be noted that there are a number of factual

issues discussed in the Board’s decision which relate to violations

other than the alleged refusal to bargain in good faith, or which

relate to defenses raised by the Company other than the defense

i based on Section 10(b) of the Act. Since this Petition is directed

solely to the court’s refusal, on the basis of Section 10(b), to affirm

the Board’s finding of a failure to bargain in good faith, we will

‘ summarize only those findings of fact which are relevant to that

2 The Board actually found that the Union’s parent organization,

Oil, Chemical°and Atemic Workers International Union, was the

bargaining agent (App. 27), but for present purposes the Local and

its parent International can be treated as one.

FO Ere (Oe UE ea > ee ee et Oe ee ee een G+ eae

bargaining agreement was executed on November 18, 1960

_ (App. 24), and was terminated by mutual agreement on

June 13, 1961. The parties agreed at that time to “meet as

quickly as possible for the purpose of negotiating a new

agreement. ” (App. 29)

.At the outset of ‘the negotiations, the Union proposed _

that the parties readopt their prior agreement, with a single

amendment to provide four rather than three weeks of

- vacation to employees with twenty or more years of

_ service (App. 30). The Company rejected this proposal, - |

and on July 27, 1961, tendered its own draft of a

proposed agreement (App. 30-31). ;

The Company’ s proposal contained a number Of drastic

departures from the terms of the parties’ prior agreement,

all of them detrimental to the Union and the employees.

For example, the Company’ Ss proposal would have elimi-

nated the checkoff of Union dues, replaced the former

“union shop” provision with a “maintenance of member-

ship” clause, deleted a provision for compensating “em-

ployees for time spent in processing grievances or partic-

ipating in collective bargaining negotiations, and imposed

greater restrictions on leaves of absence for Union busi-

ness. It would also. have authorized the Company to

discharge or discipline employees for any of thirty-five

specified “rule infractions” without recourse by the Union

or the employees to the grievance procedure or arbitration.

_In addition, the proposal would have sharply reduced the

circumstances in which the Company would have to pay ~

premium wage rates for shift work. or work ona regularly _

. scheduled day off, and would have increased manage-

ment’s unilateral authority to subcontract work or to

layoff, promote or recall.employees without regard to

their seniority. Finally, the Company proposed substantial

changes in the no-strike clause, including the déletion of .

language which allowed employees:to refuse to work unter

unsafe conditions (App. 30-33). :

Not surprisingly , the Union was unwilling to agree to

these terms, but the Company refused to recede from

a ree ;

them and the negotiations dralieed on for more than a year

without any discernible progress. ..

Z, There was no change in the Company’s position until

October 18, 1962, when it submitted a second proposal

which. was even less acceptable to the Union than its earlier

one. This draft omitted even the “maintenance of member- _

ship” provision of the prior r proposal, and provided instead. . A

f “open shop.” It also omitted the provision which |

ae been contained im both the prior agreeient and in the oer

Company’s .prior proposal, providing that discharge or oa

disciplinary action “shall be only for just cause.” Finally,

it contained a new provision, not found either in the prior .

agreement or in the Company’s prior proposal, which

stated that “where arbitration is sought and the Company .

claims the matter is not subject to the arbitration

provisions of this Agreement, then the matter of arbitrabil-

ity shall first be decided by a court of law.” In all other

‘ respects, the Company’s proposal of October 18, 1962,

was substantially identical to its prior proposal (App. 36).

At some point in 1962:— the precise date does not

appear -in the record — the parties agreed to defer any

discussion of wages until the negotiations in the oil

industry, which were then in progress, had reached the

point of establishing an industry wage. pattern. By Sanuary, ——__ .-——_>

1963, such a pattern_apparently had emerged, and the .

- parties then agreed to a 5% wage increase (App. 38). The

parties remained deadlocked, however, on the other issues

in dispute. Five further meetings in 1963 ‘produced no

"progress toward settlement (App. 39). | }

At a meeting on December 13, 1963, the Union asked

the Company whether it would submit “a final proposal.”

The Company replied that it was not ready to do so at that

time, but that it’ would prepare such a proposal and’

: contact the Union “right after Christmas” to schedule a

meeting (App. 39).

The Company did not contact the Union as it had

* promised. Instead, on February 27, 1964, the Company

distributed to all the employees a letter, nominally

: 7 Biss |

addressed to the Union, stating that as part of its “policy”

to .“‘improve: its employee program,” it had decided to

grant a four-week vacation to ‘all.émployees with 20 years

_ or more of service (App.- 40). This action was taken

entirely unilaterally, witholt any, prior notice to or —

discussion with the Union. The letter did not mention the |

fact that the Union had proposed this identical vacation

improvement at. the: beginning of- the negotiations. It

simply stated:

“Unless we hear from you to the contrary, we

shall assume this change in employees’ benefits

‘meets with your approval. However, shov!d you

not wish for MacMillan to grant this new

benefit, please advise us and we will be happy to"

discuss the matter with you.” (Gen. Counsel Ex. ©

3(1).)

Since the Union itself had originally proposed this benefit,

the employees readily accepted it, and, at the Union’s

request, it was reduced to writing in a signed letter of }

agreement on March 3, 1964 (App. 41), &-

By March 18, 1964, the Union had still lieard nothing

_ fromthe Company concerning its “final proposal” or the

resumption of bargaining. It therefore submitted to the

“Company on that date a new written proposal of its own.

In\ response, the Company, in a letter dated Marcl¥ 30,

stated that it needed time to study the Union’s new pro-

posal and would communicate further with the Union when.

it had done so. By late April, 1964, the Union-had heard

nothing further, and it therefore called the Company to

request a meeting. As a result, the parties held their first

bargaining meeting in more than five months on: May 7,

1964 (App. 41).

This meeting was devoted’ primarily to a discussion of

the Union’s proposal. At the end of the meeting,- the

parties agreed to defer further discussions until after a

settlement in the new round of industry-wide negotiations;

which were then either in progress or imminent (App. 42).

g |

By September, 1964, a pattern had emerged from these

renewed industry negotiations, and, at the Union’s request,

a bargaining session was scheduled for September 2, 1964

- (App. 45). Just prior to the meeting, the Union negotiating

‘ committee decided that in light of the fact that the

Company had still not submitted the contract proposal it

had promised to send “right after Christmas,” the negotia-

tions ought to be brought “to a head. ~ Accordingly, the

"committee decided to call a strike on September 8, if no .

- adequate. progress: was made in the. negotiations by that —

date (App. 46). ’ aes

At the meeting of September 2, 1964, the Union asked ©

the | Company for the “final proposal”. which had been

promised at the meeting. of December 13, 1963. The

‘Company’ responded _by giving the Union a draft of a.

- contract which was in all material respects identical to the .

—Company’ 'S prior proposal of October 18, 1962. After

examining the draft, the Union informed the Company

that it was no more acceptable than its prior proposal, and

that unless an agreement was reached by September 8, the

Union would strike (App. 46-47). :

_The parties met again on September 4, 1964, witha

federal mediator, but no progress toward agreement was

made (App. 51). There wére no further meetings prior to

the strike, which commenced as scheduled on September

8. The strike was still in progress at the time of the sei

in this case in November, 1965.

The parties continued to meet during the strike, but the

Company adamantly adhered to its position. Indeed, at a

* meeting on December 4, 1964, the gulf between the

parties was.widened even further as a result of a new Com-

pany proposal which would have required the Union, inany

future strike, ‘to pay the strikers the full wages they would

otherwise have earned.? The Union rejected this proposal

3 This proposal read as follows:. “The Union agrees that any time

a strike, work stoppage, or interruption of work or other concerted

: activity occurs by the employees covered hereunder during the term

LEDS LLCO TILE PIO LE POE II TE Fae LE PTT 2 ~ ee a a a a

a ae ann a ena prams 6 ar rs ane

— manners on page od

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with the comment that it knew of no union in. the United

States that could possibly agree to such a provision.

The Union indicated a willingness to meet’ again

promptly, but the Company said that it would be

unavailable until after the cemeies ien 4 ™ nomeaye

(App. 55).

The parties met on six different Occasions sehen

January 12, 1965 and April 2, 1965, but no substantial

* progress was made in these meetings, nor was there any.

change in the Company’s position on any of the issues in

dispute (App. 55-57). No further meetings were held after

April 2, 1965.

. The Board’s Conclusions ._

The Board recognized that the ultimate question to be

decided was whether the Company failed to bargain in

good faith in the six-month period preceding the filing of

_ the charge. It held, however, citing this Court’s decision in

@local 1424,-Int'l Ass’n of Machinists v. NLRB,362 U.S.

411, .416 (1960), that the parties’ prior discussions and

contract proposals could be considered “to shed light on

the true character of matters occurring with the limitation _.

period.” (App. 30.) Accordingly, ‘it based its decision on “-

an examination and. analysis of the Company’s conduct

and attitude throughout the entire oe of the negotia-

tions.

After reviewing in detail the Company’s contract pro- ©

posals, and the explanations offered by the Company for

its adamant insisten¢te upon so many drastic revisions of

the parties’ prior agreement, the Board concluded that the

Company’s real negotiating aim

(continued from page 8)

of this agreement or within one (1) year fins its termination, the

Union shall pay each striking employee eight (8) hours per day and

forty (40) hours per week at his then hourly wage rate for all the

time he is on strike, including time and one-half (1%) for all hours.

spent picketing, in. excess of eight (8) hours per day and forty (40)

hours per week with double (2) time for Ces and holiday

picketing.” (App. 54-55)

. was to prevent the conclusion of a ‘new |

labor agreement,’ and’ the purpose appears clear-

ly in the Company’s negotiating tactics directed

to matters of vital importance to the Interna-

tional’s representative status: and capacity. The

__. basic method used was not to-retain as much as

_ possible of the 1960 contract, as Becker claims

in his testimony; but to take away much, by

omission or substitution, related to that capacity

(not to speak of the scaling down of employees’

-. benefits); to inject proposals into the negotia-

tions carrying an aura of inhibition upon the -

_ International and the employees it represents,

_and. then/increase the climate of inhibition and

disparagement. of the bargaining representative,

as the meetings and years wore on, with the

injection of additional. restrictive proposals that,

especially in the light of prior discussions, were

predictably unacceptable to the Union, and

/ foreseeably spas cecie of arcaetrs 28 (App.

81-82.)

The Board found further evidence of the Company’ S bad:

faith in the fact that it: repeatedly delayed the negotiations

by the use of dilatory tactics. In addition, the Board found

it significant that when the Company finally decided to

grant the vacation improvement which the Union .had

requested, it did so in a manner which would “reasonably

lead employees represented by the International, even if

they had prior knowledge: of its vacation proposal, to

believe that the benefit was an. act of grace by the

Company ‘for all MacMillan employees’ ‘in pursuit of its

‘policy,’ rather than the product of the International’s

representation.” (App. 68). 3

The Board summarized its conclusions on the issue of

the Company’ S refusal to bargain in good faith as follows:

“Summarizing\the matter, the Respondent’s

bad faith in the negotiations: is abundantly

established by the evidence of a purpose to

pee AR PLE IES REE LSE LIE IETS DEO GAL OSL LLG AIA

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ALOE IE IE DOLE IO IE SO PIO SEL IELTS LE IY way PESTA . . nF eS pL b tah RAO AS. Hp he 3

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prevent agreement through its progressive injec-

tion into the -negotiations, as time went on, of

- mounting proposals for inhibition of the Inter-—

_ national’s representative capability and status;

the method used in 1964 to announce and put

into effect the vacation benefit proposed by the

- Union almost 3 years earlier; and the Company’s |

foot-dragging in arranging a meeting and sub-

mitting a ‘final proposal’ following the session of i

December 13, 1963, as evidenced by the broken

promises to arrange one made. at that session,

and in the Company’s letter of March 30, 1964,

by the fact. that no meeting was held. between

December 13, 1963, and May 7, 1964, and then ~

— only upon the Union’s initiative, and by the

Company’: s failure to submit a ‘final proposal’

until September 2, 1964 (which, apart from the.

. oral 4'%4-percent offer that’ followed the indus-

_ try’s bargaining pattern in amount, was substan-

tially the same, for all practical purposes, as its

contract: ‘proposal i in 1962.)” (App. 89-90).

On the issue of whether the Company’ s unfair labor

practices had occurred within the six month period prior

to the filing of the nen the taal found ‘it to be

“abundagpy clear

. that the Respondent's negotiating attitude

and goals regarding ‘2 new labor agreement’ have

not been materially — different within ‘the

' 6-month period preceding the filing and service’

of the charge, and since ‘then, including the

period since the current strike began, from what.

they were prior to May 10, 1964, evidencing the

same design to frustrate the bargaining process

and prevent the conclusion of such .an agree-

ment, and by the same methods, exemplified by

_ continued insistence, within the 6-month period,

and since, upon propositions born of that design

and variously embodied in the Company’s con-

tract, proposals of July 27, 1961, October 18,

1962, and September 2, 1964; and by the

‘ proposal of December 4, 1964.” (App. 90-91).

’ The Board further found that “the origin of the strike,

"cand its ‘prolongation, are rooted in Respondent’s conduct

aimed at preventing ‘a new. labor ‘agreement’ to replace the

1960 contract” (App. 90).

Accordingly, it held that the strikers were entitled to

reinstatement upon their unconditional request and that

the Company: was obligated to disgharge any strike.

replacements it may have hired if such action was

. necessary to- ‘provide reinstatement to the strikers + (App.

98, wee

The Decision Of The Court of Appeals

The Court below acknowledged that “the long history -

of the parties’ negotiations, heavily relied upon by the

Board, casts a certain amount of doubt on the ‘good faith

_ of the company” (App, 7). By way of illustration, the

court cited, as indicia.of the Company’s bad faith, the fact.

that. it had “moved with a pronounced lack of prom>tness

_ in certain portions. of the negotiations,” the fact that it . -

, had unilaterally ‘announced the improved vacation benefit —

“in a manner and using language calculated to raise doubts _

in the minds of the employees as to whether the union was

effectively: representing them,” and the fact.that the .

- Company was “to some extent contradictory and evasive

when responding to questions concerning the reasons for

some of [its] more severe proposals” (App. 7-8).

The court emphasized, however, that the ultimate

~ question presented was whether the Company had failed

to bargain in good faith after May 10, 1964, which was the

- beginning’ of the '6-month period of: limitations. It noted .

that because the parties had suspended their negotiations

from May 7,. 1964 to September 2, 1964, to await.the

- outcome of the industry negotiations, the only significant:

event which had occurred between May 10, 1964 and the

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commencément of the strike was the negotiating session of

September 2, 1964 (App. 4). Although at that meeting the.

Company had resubmitted:as its “final proposal” the same

proposed contract which the Board found was deliberately

w designed to frustrate the negotiations, the court said that

- the Company’ s conduct on September 2, “standing alone

... is’ plainly insOfficient to support the Board’s conclu-

.. Sion that: the company violated section 8(ay(S)” (App. 4).

. The Court also referred to the proposal tendered by the

‘Company on December 4, 1964, while, the strike. was in

progress, which would have required ‘the Union to pay

Strikers their full wages in any future strike. The Court

‘recognized that “the extreme or’ bizarre character of a

-. party’s propcsals” may be evidence of a lack. of good faith, -

but held that this single proposal, since: it was only

mentioned on one occasion, could not in itself support the

Board’s decision (App. 5-7). }

The court therefore concluded that the rnc subse- §

quent to May 10, 1964, when viewed in isolation, were

insufficient to support the Board’s unfair labor’ practice

finding. It ‘thus became necessary for the court to

- determine whether the inference drawn from events which

_ occurred prior to May 10, 1964, could properly be relied: —&

‘ upon to support the Board’s finding that the Company had | &

failed to bargain in good faith after that date. i

In search of guidance on this issue, the court examined

in detail the decision of this Court, in Local 1424, Int'l

Ass'n of Machinists v. NLRB, 362 US. 411 (1960). The

court acknowledged that the Machinists case was “not —

directly in point,” and had in fact “expressly refrained

from passing judgment” on the question presented here: —

Nevertheless, the court; while admitting that “the question

is not without difficulty,” concluded that “‘the-thrust of ©

the Court’s reasoning” in that case required reversal of:the

Board’s decision in the present case (App. 11-12).

‘The. Court conceded that evidence. antedating the

limitations period can be relied upon to “shed light” on

more recent events, but held that “the. nee of a

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14,

. “violation drawn from within. that period must be reason-

o ably substantial 1 in its own right” (App. 13-14).

REASONS FOR GRANTING THE WRIT

Introduction

q Twenty years ago, this Court reaffirmed “the estab-

lished judicial rule of evidence that testimony of prior or

subsequent transactions, which for some reason. are barred

from forming the basis for a suit, may nevertheless be —

introduced if it tends reasonably to show the purpose and

character of the transactions under scrutiny.” FTC vy.

Cement institute, 333 U.S. 683 (1948). Both the National

Labor Relations Board and the courts of appeals have long

struggled with the ‘question of whether, and to what

extent, this principle permits reliance on events which

occurred outside the six-month.,limitations peridd pre-

’ scribed by the National Labor Relations Act to determine

whether an unfair labor —- has been committed

within that period.

One aspect of that problem was before this Court in:

* Local 1424, Int'l Ass’n of Machinists v. NLRB, 362 U.S.

411 (1960). In that case, a union and an eniployer had

_ entered into a colléctive bargaining agreement at a time

when the union represented less than a majority of the -

employees involved. More than six months after the -

execution of the contract, a charge was filed alleging that”

the union’s original lack of a majority rendered the

contract itself unlawful, and that the continued enforce-

ment of the contract was therefore an unfair ‘Jabor .-

practice. Aside from the circumstances of its original ©

- execution, the contract was entirely valid and lawful.

. Nevertheless, the Board had held that the mere existence —

of the contract was a “continuing violation,” and that the |

charge was therefore timely even though it was filed more

than six months after the date on which the contract was _

first executed. This Court reversed; holding. that the

4 P

- .

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;

six-month limitations period had begun to run upon the

execution’ ‘of the contract, since the union’s lack of ©

majority status at that time was the real —_ for the

charge. '

In reaching this result, the Court dietinguiebod between _

two different kinds of situations: °

“The first is one where occurrences within the

six-month limitations period in and of them-

selves may constitute, as a substantive matter,

unfair labor practices. There, earlier events may

be utilized’ to shed light on the true character of

matters occurring within the limitations period; .

and for that purpose §-10(b) does. not bar-such

evidentiary use of anterior events. The second

situation is that where conduct occurring within

‘ the limitations period can be charged to be an

unfair labor practice only through reliance oh.an-

earlier unfair labor practice: There the use of the

earlier unfair labor practicegs not merely ‘evi-

dentiary,’ since it does not simply lay bare a

putative current unfair labor practice. Rather, it

serves to cloak with. illegality that which was

otherwise lawful. And where a complaint based

upon that earlier event is time-barred, to permit

the event itself to be so used in effect results in

reviving a legally defunct unfair labor practice.” ;

(Id. at 416-17)

The Court concluded that the case before it fell into the -

second of thesé two categories, “for the entire foundation

of the unfair labor practice charge was the Union’s

time-barred lack of majority status when the original

collective bargaining agreement was signed.” Jd. at 417.

* The present case, on the other hand, falls into the first

« category. Here the charge alleged, and the Board found,

that the Company had failed to bargain in good faith

within the six-month limitations period. Such conduct, in

and of itself, constitutes an unfair labor practice, without -

regard to any prior act or event. However, in order to

determine the “true character” of the Company’s conduct -

within the limitations period — ie., whether it was acting

in good faith or in bad faith, whether it was bargaining

-with a sincere desire to reach an agreement or with the

object of avoiding agreement — the Board reviewed the

whole history of the parties’ relationship, and particularly

‘the history of the negotiations. On the basis of its review

of the Company’s entire course of conduct, the Board

concluded that the Company had failed to bargain in good

faith throughout the negotiations, both before and during

the six-month period preceding the filing of the charge,

' and thereafter.

The Court below did not disppte the contention that

the record in this case, viewed as 4 whole, “would provide

_a sufficient foundation. for the Board’s finding of a refusal

to bargain” (App. 9). It also acknowledged that “the

violation found by the Board ‘occurred’ within the

specified six-month period before the filing of the charge.”

(App. 9). Nevertheless, it held that the Board’s finding

could not stand, because it was based primarily on

inferences drawn from evidence of events which: had

occurred prior to the limitations period.

The question thus. presented was adverted to by this

Court in the Machinists case, but the Court expressly

refrained from deciding it at that time: ~

“Indeed, some Board cases have... held §

ae 10(b) a bar in circumstances when, although .

“. none of the material elements of the charge in a

complaint need necessarily be proved through

" reference to the barred period — so that utiliza-

‘ tion of evidence from that period is ostensibly

only forthe purpose of giving color to what is

involved in the complaint —. yet the evidence in

-fact marshalled from within the six-month pe-

riod is not substantial, and the merit of the

allegations in the complaint is shown largely by

reliance on earlier events. News Printing Co., 116

N.L.R.B. 210, 212; Universal Oil Products Co.,

108 N.L.R.B. 68; Tennessee Knitting Mills, Inc.,

88 N.L.R.B. 1103. However, we express no view

on the problem raised by such cases, for here we

need not go beyond saying that a finding of

violation which is inescapably grounded on

events predating the limitations period is direct-

ly at odds with the purposes of the § 10(b)

proviso.” 362 U.S. at 421-22.

The question which this Court thus left open in ~-

Machinists is now squarely presented by this case. As we .

‘shall demonstrate below, it has repeatedly arisen in a

variety of contexts, and has léd to conflicting and

inconsistent decisions by both the courts of appeals and

the Board. Since this is an issue of fundamental impor-

tance in the administration of the Act, it should now be

settled by this Court.

The decision of the Court below is in direct conflict

with decisions of other courts of appeals. For example, in

Sheet Metal Workers’ Int'l Ass’n v. NLRB, 293 F.2d 141

(D.C. Cir. 1961), cert. denied, 368 U.S. 896 (1961), the

court was confronted with a Board finding that a union

had violated Sections 8(b)(4)(B) and (C) of the-Act; 29

U.S.C. $8. 158(b)(4)(B), (C), by inducing employees of

certain other employers to refuse to handle or install

‘products manufactured by Burt Manufacturing Company.

Under the ‘statutory provisions involved, such conduct

- would constitute a violation only if “an. object thereof”

was to force Burt “to recognize or bargain with” the

union. Although fhe allegedly unlawful conduct occurred

within the limitations period, “the Board’s finding that an

object of petitioners’ conduct was to compel Burt to

recognize Local 70 was based exclusively on evidence of.

events antedating December 5, 1956,” the date on which

the six-month period commenced. Id. at 146 (emphasis

meee.

Na 8 ens per we en ame tae ot tome

The union in that case, like the Company here, argued ©

that the Board may not rely wholly on events which

‘occurred outside the six-month period even to prove the

| unlawfulness of conduct occurring within that period. The

District of Columbia Circuit, however, unlike the Ninth

Circuit in this case, held to the contrary. After reviewing

and quoting at length the opinion of this Court'in the

Machinists case, the court concluded:

“In this case the Board has relied upon events

occurring prior to the limitation period to ‘shed

light on the true character’ of. the objective of

petitioners’ conduct within that period. Thus,

such events are ‘merely evidentiary.’-As such,

they are admissible in support of charges under

8(b)(4)(B) and (C) and their probative weight is

for the Board’s determination .... It follows

that the Board’s finding that an object of the

Local’s conduct was to: obtain recognition is

supported by substantial evidence.” Jd. at 147.

' The issue in that case is strikingly similar to the question ©

presented here. In both cases, the legality of conduct ©

occurring within the- six-month period depended entirely

_ on its “object” or purpose. In the Sheet Metal Workers

_ case, the question was whether thie “object” of certain

actions taken by the union within the six-month period

was to force Burt Manufacturing Company to recognize

and bargain with it. In the present case, the issue was

whether the “object” of the Company’s b g activ-

ities within the six-month feriod was to,frustrate the

negotiations and prevent the consummation of an agree-

ment. In both cases; the Board found-the unlawful object

on the basis of evidence which antedated the limitations

- period. The District of Columbia Circuit held that it was

. proper for the Board to rely on such evidence, the Ninth

Circuit held that it was not. Both courts relied on their

respective interpretations of the opinion of this Court in

the Machinists case. The conflict could not be more clear.

Another more recent decision of hs District of Colum- ;

bia Circuit is also inconsistent with the result reached in

the present case. In International Union, United Automo-

bile Workers v. NLRB, 363 F.2d 702 (D.C. Cir. 1966); °

cert. denied, 385 U.S. 973 (1966), an employer, after.

refusing a union’s demand for recognition and bargaining,

proceeded to engage:in a variety of unlawful activities in»

an effort to dissipate and undermine the union’s support’

among the employees. The Board found that the union -

represented a majority of the employees at the tirhe of its ~®

original demand for recognition and at all relevant times

thereafter, and ‘therefore held .that the employer had

unlawfully refused to bargain: However, the union’s

demand for recognition, and the company’s express refusal .

to bargain, had both occurred more than six months prior

to the filing of the charge, -and were not repeated

thereafter. The company therefore argued that the charge,

insofar as it alleged an unlawful refusal to bargain, was -

barred by Section 10(b). The court disagreed and upheld

the Board’s finding that the company’s subsequent con-

_ duct constituted a “‘continuing refusal” to bargain with the

union:

“The Company contends that the con-

tinuing offense theory is impermissible in

light of Local Lodge No. 1424 Interna-

tional Assoc. of Machinists v. NLRB, 362

U.S. 411, 80'S. Ct.«822, 4.L.Ed.2d 832

(1960). That decision cannot be viewed so

broadly. When within the six-month period

there has been active conduct, as. con-

trasted.with mere passive inaction follow-

ing an old offense, it is open to the Board

‘to refer to previous acts “to shed light on

the true. character of matters occurring

within the limitations period.” 362 U.S. at

involved here was a basic Company ap-

proach started more than six thonths prior

to the charge, but carried forward by more

Pr eta OP ene soeneene nh aE pot — eee ca ies CS eee te

-.8

recent actions. The Board in effect viewed

the actions within the six-month period as

reiterations by deed of the underlying

refusal to bargain and hence as establishing

a violation of Section 8(a)(5). We think this

was within its authority under the a ” Id.

at 706-707. ;

This reasoning is plainly at odds with the approach token

by the court below. In the present case, the.court held that

it was impermissible ‘for the Board to ‘treat conduct

occurring within the six-month period as a continuation of

“‘a basic Company approach started more than six months

prior to the charge,” ‘in the absence of some substantial

evidence, drawn from the six-month period itself, that the

company was guilty of the unfair labor practice with

which it was charged. In the Auto Workers case, the

actions taken by the company within the six months,

although unlawful for other reasons, could not in them-

selves provide the basis for a finding of an unlawful refusal

to bargain. Only when viewed in the light of earlier events

was such a finding possible. Nevertheless, the Board made

such a finding, and the Court of —— in that case

sustained it.

Also. in conflict with the decision below are the

decisions of three other circuits on the question of

whether the Board may find an unlawful. refusal to

_ reinstate “unfair labor practice” strikers in a situation in

which the underlying unfair labor practice which caused

the strike occurred more than six months prior to the

filing of the charge. The Board has long held that when a

strike is caused or prolonged by an employer’s unfair labor

‘practice, it is a violation of: Section 8(a)(3) of the Act for

the employer to refuse to reinstate the strikers upon their

unconditional request, even if permanent replacements

have been hired in the ‘interim. The Board has also held,

however, in a case which arose shortly after the enactment

of the limitations proviso of Section *10(b), Greenville

Cotton Oil Co., 92 N.L.R.B. 1033 (1950), affirmed sub.

- ne ee ee ere a easieenmnmennntl - Dd « .

nom., American Fed. of Grain Millers v. NLRB, 197 F.2d

451 (Sth Cir. 1952), that a charge alleging an unlawful

refusal to reinstate unfair labor practice strikers is untime-

ly if filed more than six months after the occurrence of the .

original unfair labor practice which provoked the strike.

Three courts of appeals have disagreed with this view, and

have held instead that a charge is timely if filed within six

months of the denial of reinstatement.

The first of these decisions was NLRB v. Brown & Root,

Inc., 203 F.2d 139; 145-46 (8th Cir. 1953), in which the

court expressly disapproved the Board’s.decision in Green-

ville Cotton. The Board itself had distinguished Greenville...

* Cotton Yon the ground that, in Brown_&-Root, the unfair

labor practice which had ‘provoked the strike had been the

subject of a separate charge, which had been timely filed

and which had been adjudicated in a separate proceeding.

The Eighth Circuit, however, expressly disclaimed reliance

on this distinction, and instead enforcéd the Board’ s

decision on the ground that Greenville Cotton itself was an

- “illogical”? decision. Id. at 145-46.

The Sixth Circuit reached ‘the same result in Philip

Carey Co. v. NLRB, 331 F.2d 720 (6th Cir. 1964), cert.

denied, 379 U.S. 888 (1964). The court in that case, after

noting the conflict between the Board’s decision in

Greenville Cotton and the Eighth Circuit’s decision in.

Brown & Root, held that “the more logical approach” was

that reflected in the latter case. /d. at 732.

Finally, the Fifth Circuit, which had originally affirmed

Greenville Cotton, appears to have reversed its position in

NLRB vy. American Aggregate Co., 305 F.2d 559, 563 (Sth

Cir. 1962):

“In a § 8(a)(3) striker reinstatement case

the significant thing is not when the strike

started, or how long it has gone on. What is

important is the status of the returning .

striker, This is because an employer’s re-

sponsibility of reinstatement is quite differ-

eS |

ent for those who struck to gain economic

bargaining power than it is for those who

struck as a protest against an employer’s

unfair labor practices. Determination of the’

; employees’ status must therefore necessar- .

- ily depend on the causes of the strike. It is.

inescapable that such evidence will have to

go back to the beginning, or at least to the

time the character of the strike changed.

But § 10(b) does not bar evidence. It bars

’. charges. The charge under review was not

the Company’s actions giving the strike its

‘ unfair labor practice character. It was that,

within the 6 months’ period; the Company

refused to reinstate an employee then

having a ‘significant status entitling him to

different treatment.” ,

Plainly, ‘the decisions in Brown & Root, Philip Carey,.

and American Aggregate are: all inconsistent with the |

decision of the court below in the present case. Indeed,

one of the Board’s findings in this case was that the: .

strikers here were unfair labor practice strikers entitled to

reinstatement upon their unconditional request: The court —

reversed that finding on the ground that the underlying

unfair labor practice itself, although it admittedly occurred -

within the six-month period, could be established only by

reliance upon evidence which antedated that period. In the

three cases cited above, on the.other hand, the courts held

_ that even -if the underlying unfair labor practice itself

occurred outside the limitations period, the Board could

still find that certain strikers were unfair labor practice

strikers, and order their reinstatement.‘ ,

4- It should be noted that this Court, in Machinists, cited -

Greenville Cotton a% one example of a Board decision holding that a

charge is barred -by Section 10(b) “where the gravamen of the unfair

_ labor practice complained of lay in a fact or event occurring during

the barred i ” 362 US. at 420. It is therefore possible to argue

_ (footnote <a on page 23)

23°

II | :

' The Board’s own decisions have not been consistent on

_ .the question presented in this case, and have thus - _

contributed to the present confused state of the law.

In Machinists this Court cited three Board decisions as

holding that a-charge is barred by Section 10(b), ¢ even if it

alleges a violation occurring ‘within the limitations period,

“if the evidence in fact marshalled from within the -

six-month period is not substantial, and the merit of the

~ allegations... is shown largely by’ reliance on earlier

events.” This rule, with respect. to which this Court ;

expressed. “no view,” is the one which the Court _—

applied in the present case.

The three cases referred to were News Printing Co.; 116

N.L.R.B. 210 (1956); Universal. Oil Products Co., 108

N.L.R.B. 68 (1954); Tennessee Knitting Mills, Inc., 88

N.L.R.B. 1103 (1950). Two of these cases presented a

quite different problem than that involved here. Both

Universal’ Oil’ Products and. Tennessee Knitting Mills

‘ involved” charges which- alleged that the employers had

unlawfully assisted or dominated a labor organization in _

Violation of Section 8(a(2) of the Act,.29 U.S.C. § —

158(a)(2). In both cases, the evidence showed considerable

unlawful conduct prior to the six-month period preceding

the filing of the charge, but no significant acts of assistance

or domination .with that period. The Board concluded i in

(continued from page 22)

that this Court has impliedly approved Greenville Cotton, and that

the court of appeals decisions to the contrary are therefore in

‘conflict with the decision of this Court. On the other hand, since

both American Aggregate and Philip Carey were decided subsequent

to Machinists, it is apparent that at least two courts of appeals are

‘not persuaded that this Court has-settled the issue. Thus, whatever °

the merits of those decisions, they at least demonstrate that there is

considerable conflict and confusion among the circuits as to the

extent to which the Board may rely upon events which occurred

more than six months prior to the filing of an unfair labor practice

_ Charge in order to determine whether a violation has occurred within

that ‘six-month period. -

ne ccc aslilinaeiieioeate athdoabaalcamaiel eiahehnie PPT ER PIER ITS ac a ace aac Ses Sl

"ee ae

- each case that such allegedly unlawful acts as hiad occurred

in the six-month period were too “insubstantial” to

‘ ‘precluded a finding of a violation based entirely on the

- earlier events: These cases merely stand for the proposition

that there ‘can be no unfair labor practice finding in: the

six-month period which constitutes a violation of the

. 4 stafute. They do not involve the question presented in this

case, which is whether the Board may look to earlier

events to determine’ whether an act (or failure to act) —

which has occurred within the- six-month period was or

was not unlawful.

Of the three cases referred to site: only News Printing

Co., 116 N.L.R.B. 210 (1956), dealt with this issue. There

the allegation was that the employer had discriminatorily

‘denied wage jincreases to certain employees because of

their union activities. The evidence drawn from the

six-month period showed only- that certain employees had

in fact been denied wage increases, but not the reason or

motive for that denial. However, a prior Board decision in

an eaflier case had found the same employer guilty of

discriminating against the same employees, and others,

because of their union activities, and such prior discrimina-

tory conduct had included refusals to grant wage increases

* to union supporters. On. the basis of these prior findings,

the Trial Examiner concluded that the employer had

3 absence of some act (or failure to act) within the —

simply repeated. the same pattern of unlawful conduct...

The Board held; ‘however, that while the earlier decision |

“was admissible as background evidence, it was improper

for the Trial Examiner to give it- independent and

controlling weight in \ determining whether the Respondent .

_ had discriminatorily denied wage increases to the Charging

Parties in violation, of the Act.” Jd. at 212.

On: the other hand, the Board, in subsequent cases, —

has reached the. opposite result on almost identical facts.

For example, in Paramount Cap Mfg. Co., 119 N.L:R.B.

785 (1957), enforced, 260 F.2d 109 (8th Cir. 1959), the |

PTDL LY PRL ALES LTT PELE REE LEONE AA ING AE POLARIS NO eS . « de is

employer was found guilty of discriminatorily . denying

re-employment ‘to two laid-off employees, although the

- only evidence of a discriminatory motive was contained in

_/ the record of a prior Board proceeding which showed that . an

_ more than six months prior to the filing of the charge the

empléyer had expressed hostility toward the Union, and —

had threatened reprisals for union activity. The only

difference between Paramount and News Printing was that

in the former case the employer had offered an innocent

explanation for his actions, which the\Trial Examiner had

discredited, while in th¢ latter case the employer had

offered no évidence at all: The Board attempted to use this

difference as a basis for distinguishing the cases, but it is

Clear that in both cases the only affirmative evidence of

the discriminatory motive, which. was an, essential element

of the violation, consisted of actions or ‘statements of the

employer which had: occurred prior to the Section. ‘10(b)

period. Yet in one case the Board found a violation, and in

the other it refused to do so... ‘two subsequent cases

involving essentially similar,facts, the Board followed

Paramount rather. than News Printing..Dan River Mills,

Inc., 125 N.L.R.B. 1006 (1959); Newton Falls Paper Mill,

Inc., 144 N.L.R.B. 1470 (1963). See also Banner Die

Fixture Co., 109 N.L.R.B.: 1401 (1954), 115 N.L.R.B.

~ 1692 (1956); enforced, 42 L.R.R.M. 2604 (6th Cir. 1958).

In other types of cases the Board has similarly found

unfair ‘labor practices to have occurred within the limita-

tions period, although essential elements of the violations ..

involved could be proved only by using evidence which =

antedated that period. Thus, for example, the Board has

held picketing to be unlawful because its ‘“‘object’’ was to

obtain recognition, although the unlawful object was

proved entirely by evidence of events occurring more than

six months prior to the filing of the charge. E.g., General

Paint, Varnish & Lacquer Makers Union, 120 N.L.R.B.

1425 (1958). The Board has also held unlawful a job

referral system which ‘gave preferential rights to em-

ployees with longer service, ‘because it was om that the

parties in the past — prior to the Section 10(b) period —

-had discriminatorily given preferential employment rights

to union members. Thus, what appeared on its face to be a

non-discriminatory seniority system was shown, by evi-

dence of events which had occurred outside the limitations

period, to constitute a method of perpetuating a discrimi-

natory system. Local 269, Int'l B’hd of Elec. Workers, 149 -

N.L.9B. 768. (1964), enforced, 357 F.2d 51 (3d Cir.

1966). On the other hand, in Bowen Products Corp., 113

N.L.R.B. 731 (1955), the Board reached the opposite

result in an analogous situation.

In short, this eckiliian ot this Dod wes so euntitgt ent:

inconsistent as the decisions of the courts of appeals. Itis

thus apparent that this important area of the law can be

clarified only by this Court.

| in | he

The importance of the question presented in this case is

demonstrated by the frequency with which it has arisen in

litigatién under thé National Labor Relations Act. As the

cases canvassed above make clear, there are many unfair

labor practices which are difficult or impossible to prove

without reliance on evidence of events which have oc-

curred prior to the six-month limitations period. There are

at least two reasons why this is so. First, there are many

-unfair labor practices which require a showing of motive,

intent, object, or purpose. These elements cannot usually

be proved by direct evidence; they must be inferred from a

pattern or course of conduct, which frequently extends

over a long period of time. Second, the problem. is

exacerbated by the fact that the limitations period

prescribed by the National Labor Relations Act is only six

months, whieh is much shorter than that prescribed by

most statutes of limitations. The issue involved in the

present case, therefore, is much more likely to arise under

the National Labor Relations Act than under most other

_ Statutes.

provisions of the Act will likely be seriously hampered

until the issue presented here is finally resolved. The .

present confused state of the law tends to encourage

litigation even in cases where the substantive violation is

clear, simply because of the possibility that the Board ora |

court may ultimately find that the case is time-barred.

Moreover, the General Counsel of the Board himself is not

now in a position to determine with certainty whether a

cases, therefore, he may .erroneously refuse to issue a

complaint when one is warranted, thus finally foreclosing

the .enforcement of the Act in the particular case. An

example of a situation in which this almost occurred is

Swift Service Stores, Inc., 169 N.L.R.B. No. 33, 67 .

L.R.R.M. 1181 (Jan. 26, 1968), where the charge was

originally dismissed by the General Counsel on the ground ~

that it was time-barred: Thereafter, the charging party

took the unusual step of requesting the General Counsel to

reconsider his action, whereupon the General Counsel

reversed his earlier decision, and issued a complaint. /d. at

1183-1184. The Board ultimately found a violation, but in

doing so it ‘hhad to struggle not only with the Section 10(b)

issue, but also with the question of the General Counsel’s

power to reverse himself ‘ater originally dismissing a

charge.

The limitations proviso of Section 10(b) has been a part

of the statute since 1947. Although it has been the subject

of much litigation, the cases have served more to. confuse

than to clarify the issue of whether, and to what extent,

the Board may rely on evidence dating from before the

limitations period to determine whether a violation has

occurred within that period. This Court decided one aspect

of that problem in the Machinists case; the present case

presents the other aspect of the problem, which was

expressly left open in Machinists. This issue, as we have

seen, has arisen frequently, and has been the subject of

inconsistent and conflicting decisions by both the Board

and the courts. It is a question of Sendumental importance

in the administration of the National Labor Relations Act.

_ It should now be decided by this Court.

CONCLUSION

For the reasons stated above, this petition for a writ of

certiorari should be granted.

* Respectfully submitted,

JERRY D. ANKER

| 1730 K Street, N.W.

7 Washington, D.C. 20006

JOHN TADLOCK

JAMES J. CRONIN

¢ _ 1840 California Street

Denver, Colorado 80201

Attorneys for Petitioner

COLE AND GRONER

1730 K Street, N.W.

Washington, D.C. 20006

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.