# Petition for Writ of Certiorari — Oil, Chemical & Atomic Workers International Union, Long Beach Local No. 1-128 v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0064%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 914 ## 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) | 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). .. - oly as é CS) e+ Nee . ooo tee ~*~ ia Da - ad . = e te . . 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F3 r . > 4 ‘ . ” ‘ Pd . ae - = om . .* ° 54 A . f z ¢ ‘ p ee - . . . :/ » . . - x ‘ ° * . a or ¢ “ s [ah +4 : . - : ae 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 ». nee 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 ; 6 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 3 . 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 oo, 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) 10 . 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.) ae 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 ~ fae ALOE IE IE DOLE IO IE SO PIO SEL IELTS LE IY way PESTA . . nF eS pL b tah RAO AS. Hp he 3 | oan - 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 ~- Q@rrger . ” Sr a take ee LPBEL ELLIE de calid 5 Seo tin i: = ? e tne She a 9 = 2 2 =— | ¢. aa nee . ig] 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 9 . = — NT ae a « s , rene Pee eae ea ee ee ee = pili ticllabasctd | Kins aaa get 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 . - . ‘(\omntethe tern . . - — _rectheperrue ‘ - yore _ . @-- ~~——- & — ‘7 sl — . ; 15 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 - - 16 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 17 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. I 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 a 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. 19 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 416, S.Ct. at 826. In effect what was © 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 20 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 « . 21 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- 4 eS | 22 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 - . : Z ; , = ? ° 7 ; . * : * * e 7, . . : a - : ; * z . s : ‘ » e : =i . ° . . A ° ° - : - . of . ‘ ‘ * wi * ° . ° : . . . o e ’ . ’ ae > -. Pad ° ° ° . “ gt *. ee . Py . ‘ ° ° im . ae : : a . . P : . . 7 = : ’ . ° . e a ’ . e ; a .- ode ° ° ° ° f : * d © © . ° a . R . ° ° . ° % ° . * . . ‘ ; : a . . ° a *. ° . ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0064%3A1. Public record. Not legal advice.