# Petition for Writ of Certiorari — Rotek, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1749%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 930 ## Text ‘ 4 TABLE OF CONTENTS I III ccinstsiaicdaacuh ciation agesudseasaeinbesaldidehe 1 acacia srtpetieIncsemiaciaiuadiorspnaisaaabiasacaniones 2 GUase PRRoewaeeD ....... 2 STATUTORY PROVISIONS AND RULESINVOLVED 3 STATE: OF Tee CAR 6 REASONS FOR GRANTING THE WRIT .......02........ 9 (1) This Court’s powers of supervision should be exercised—the Sixth Circuit has sanctioned an application and interpretation of § 8(a)(1) which is directly in conflict with the decisions gE ac rene ae re re) (2) This Court’s powers of supervision should be exercised—the Sixth Circuit has created a con- flict in the decisions of the various circuits re- lating to management discretion and the man- ner of selecting employees for termination ........ 12 (3) By enforcing the Trial Examiner’s Decision, the Sixth Circuit has approved findings and con- clusions which are so illogical, inconsistent and unsupported in light of the evidence, as to amount to a denial of petitioner’s rights under BE fk _ aaaR WAAR Eine en Or eC er 13 ARREST EEN ee Or 15 APPENDIX: Decision of Trial Examiner ...........................-..-0:-:00-0c000 Al Decision and Order of the National Labor Relations IEE iehaisiaatidmandndcncnes sisal asain ciendiahlalebdabinstocieistabacceinail A28 Order of the Court of Appeals -.......0..0.......2.2:.---0+ A30 Opinion of the Court of Appeals in the Case of Rivers Mfg. Corp., 376 F.2d 511 ...............---..------- A31 II TABLE OF AUTHORITIES Cases American Casting v. NLRB, 151 NLRB 172 (1964), 365 F.2d 168 (1966 7th Cir.) Bonnie Bourne dba Bourne Co. v. NLRB, 332 F.2d 47 (2nd Cir. 1964) Louisiana Plastics v. NLRB, 173 NLRB 20,436 (1968) .... NLRB v. Fox Mfg. Co., 238 F.2d 211 (5th Cir., 1956) .... NLRB v. Hackney & Sons, 426 F.2d 943 (4th Cir., 1970) a 12, 13 NLRB v. Hinde & Dauch Paper Co., 171 F.2d 240 (1948, 4th Cir.) 10 NLRB v. Mathieson Alkali Works, 114 F.2d 796 (4th Cir., 1940) 9 NLRB v. McCormick Steel Co., 381 F.2d 88 (5th Cir. 1967) ll NLRB v. McGahaey, 233 F.2d 406 (5th Cir., 1956) ........ 14 NLRB v. Swan Cleaners, 384 F.2d 609 (6th Cir., 1967) 11 NLRB v. Whittier Mills Co., 111 F.2d 474 (5th Cir., 1940) 10 Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th Cir., 1962) 14 Rivers Mfg. Corp. v. NLRB, 376 F.2d 511 (6th Cir. pe IT ee ee 13, 14, A31 ERR OSE REAR At arora: —— Re AOE ee ERE LO OTR INI REET PER ALTE ERE SH NS IN III Statutes and Rules United States Code, Title 29, § 158 (a) cere ..2, 3, 7, 8,9, 10, 11, 13 United States Code, Title 29, § 158 (a) (3) ........ 2, 3, 7,8, 13 United States Code, Title 29, § 160 (c) ....... 2, 3, 13, 14 United States Code, Title 29, § 160 (f) 2, 3, 5, 13, 15 Supreme Court Rules, Rule 19 Se coat 5 In the Supreme Court of the United States No. October Term, 1972 ROTEK, INC., Petitioner, vs. NATIONAL LABOR RELATIONS BOARD, Respondent. PETITION FOR WRIT OF CERTIORARI | To the United States Court of Appeals For the Sixth Circuit Petitioner respectfully prays that a writ of certiorari issue to review the order of the United States Court of Appeals for the Sixth Circuit in its Cause Numbered 71- 2073, entered on July 18, 1972. OPINIONS BELOW The order of the Sixth Circuit Court of Appeals in this cause is set forth in the Appendix to this petition, commencing at page A30, infra; it has not been officially reported. 2 The decision and order of the National Labor Rela- tions Board is set forth in the Appendix to this petition, commencing at page A28, infra. The decision, findings, conclusion and order of the Trial Examiner of the National Labor Relations Board is set forth in the Appendix to this petition commencing at page Al, infra. JURISDICTION The order sought to be reviewed was dated and en- tered on July 18, 1972. Petitioner filed a timely applica- tion for extension of time in which to file a petition for a writ of certiorari which was granted by Mr. Justice Stewart in an order dated October 10, 1972. The United States Code, Title 28 § 1254(1) confers jurisdiction on this Court to review by Writ of Certiorari the order in question. QUESTIONS PRESENTED (1) Whether the Sixth Circuit Court of Appeals by adopting without comment or supporting reasons the in- consistent and illogical findings of the Trial Examiner has denied the Petitioner due process of law guaranteed it by United States Code, Title 29 § 160 (c, f)? (2) Did not the Sixth Circuit Court of Appeals in this case issue an order in conflict with the decisions of other Courts of Appeals and sanction an application and interpretation of United States Code, Title 29 § 158 (a) (1,3) which is not supported by the language of the statute or by the intent of the Congress? athe Eonaaps yond STATUTORY PROVISIONS AND RULES INVOLVED (1) The National Labor Relations Act, 29 United States Code, Section 158(a)(1, 3); hereinafter § 8(a) (1, 3): “(a) It shall be unfair labor practice for an employer— (1) to interfere with, restrain, or coerce em- ployees in the exercise of the rights guaran- teed in section 157 of this title; * * * ‘* * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” (2) The National Labor Relations Act, 29 United States Code, Section 160 (c, f); hereinafter § 10 (c, f): “(c) The testimony taken by such member, agent, or agency or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall is- sue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative ac- tion including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter: Provided, That where an order di- rects reinstatement of an employee, back pay may _—— P a pret, rite tis te ett os eatin tie 4 be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him; And provided further, That in de termining whether a complaint shall issue alleging a violation of subsection (a) (1) or (a) (2) of section 158 of this title, and in deciding such cases, the same regulations and rules of decision shall apply irrespec- tive of whether or not the labor organization affected is affiliated with a labor organization national or in- ternational in scope. Such order may further require such person to make reports from time to time show- ing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individ- ual was suspended or discharged for cause. In case the evidence is presented before a member of the Board, or before an examiner or examiners thereof, such member, or such examiner or examiners as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed.” 5 “(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit, wherein the unfair labor practice in question was al- leged to have been engaged in or wherein such per- son resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Board, and thereupon the aggrieved party shall file in the court the record in the proceeding, certified by the Board, as provided in section 2112 of Title 28. Upon the filing of such petition, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e) of this section, and shall have the same jurisdiction to grant to the Board such temporary re- lief or restraining order as it deems just and proper, and in like manner to make and enter a decree en- forcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board: the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be con- clusive.” (3) Supreme Court Rules, Rule 19 (1) (b): “(b) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter; or has decided an im- portant state or territorial question in a way in con- flict with applicable state or territorial law; or has de- cided an important question of federal law which has not been, but should be, settled by this court; or has decided a federal question in a way in conflict with applicable decisions of this court; or has so far departed from the accepted and usual course of judicial pro- ceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court's power of supervision.” STATEMENT OF THE CASE The petitioner (Rotek, Inc.) is a corporation engaged in the manufacture of bearings for the heavy equipment industry. Due to a devastating depression in the capital goods industry, which had a direct effect on Rotek’s busi- ness as a supplier, President John Weber determined that a recession plan would be necessary if the company was to survive. The course of action chosen by Mr. Weber in- cluded a 35 percent reduction in expenses, abandonment of a research and development program on which $160,000.00 had already been spent and a 25 percent re- duction in personnel, including both white and blue collar workers. This recession plan was implemented on August 12, 1970, following a complete reorganization of produc- tion personnel pursuant to Weber's attempt to retain only the most highly qualified, capable and industrious employ- ees. This reorganization plan later became a focal point in the instant case, and therefore demands closer scrutiny. Early in August of 1970 Mr. Weber convened a meet- ing of all department heads at which an organization chart was posted listing Rotek personnel by department and marking 27 individuals for termination as excess employ- ees. Mr. Weber then said “Anyone who is listed in an excess category is available. As you walk around and talk to the other department heads, if you see a good man - By 7 there, you take him and you have some one put into your excess category” (R. 189).* No specific persons were earmarked for termination at this point and the super- visors spent sometime moving employees on and off the excess lists in an attempt to retain the most valuable ones. Efficiency and competency were the only criteria consid- ered in making the decision as to whom should be termi- nated. Billy Fowler was one of the employees who moved into and out of the excess or termination category several times before the reorganization was complete, at which time he was in the former with 26 others. On August 12, 1972, the twenty-seven employees were notified of their termination and informed that, although it was effective immediately, they would be paid until the end of the month. Of these affected employees, only six joined with Billy Fowler in the fourth and final amended charge, filed February 8, 1971. The National Labor Rela- tions Board issued a formal complaint on that date against petitioner alleging that these seven employees had been discriminatorily discharged because of their union sympathies and desires in violation of § 8(a)(1, 3) and had been subjected to unlawful anti-union interrogation and pressure in violation of § 8(a)(1) while still employed at Rotek. These charges came to be heard on May 25-26, 1971, before the Trial Examiner appointed by the NLRB and, of the numerous charges, only three were held to be valid. Of the three specific violations of the National Labor Re- lations Act found by the Trial Examiner, two concerned alleged unlawful interferences with employees’ attempts to exercise their rights under the Act and the third dealt *“R.” references are to the printed Appendix filed in the Court of Appeals, certified as the record herein. with the alleged unlawful discharge of Billy Fowler in vio- lation of § 8(a) (1,3). In order to reach this conclusion the Trial Examiner was forced to completely disregard the evidence presented at the hearing as well as the clear meaning of the statute and judicial precedent in this and other Circuits. The NLRB affirmed this gross injustice as did the Sixth Circuit Court of Appeals, both without any comment, support, explanation or arguments in favor of their action. A review of the record shows that all the charges contained in the original complaint stemmed from vir- tually identical facts but the Trial Examiner chose to draw illogical and inconsistent conclusions therefrom and to rule that Billy Fowler’s case was different from that of the others and that he, and he alone, had been discrim- inatorily discharged. This special attention is not war- ranted by the facts or even by the Trial Examiner’s find- ings and represents an attempt to pacify both sides in the dispute rather than an independent and impartial de- cision based upon the evidence presented. REASONS FOR GRANTING THE WRIT (1) This Court’s powers of supervision should be exer- cised—the Sixth Circuit has sanctioned an application and interpretation of § 8(a)(1) which is directly in conflict with the decisions of other circuits. The Trial Examiner ruled that Rotek was guilty of violating its employees’ § 8(a)(1) rights on two separate eccasions. In both instances the violations stemmed from discussions between supervisory and non-supervisory per- sonnel, during which the latter allegedly were questioned concerning their union sympathies, general complaints, tool and equipment needs and suggestions for improving working conditions (pp. A4-A6, infra). The first alleged violation, that by Foreman Welling, concerned a threat to close Rotek’s Ravenna plant and transfer operations to Iron- dale rather than allow a union to gain control. Not only was this unequivocally denied by Welling (R. 131-132) but it was impossible to do for reasons generally known among the employees (R. 177-180). In fact Irondale was an empty plant being prepared for the future production of large-size bearings not made in the Ravenna plant. Fur- ther, the Trial Examiner discredited the testimony of two of the three witnesses who claim to have heard the con- versation as unreliable (p. A6, infra). Finally, other circuits have held that such expressions of anti-union senti- ment on the part of a foreman are totally insufficient to support a cease and desist order unless the General Counsel can prove that the comments were attributable to or authorized by company personnel. NLRB v. Mathie- son Alkali Works, 114 F.2d 796 (United States Court of Appeals, Fourth Circuit) (1940). The Fifth Circuit has also adopted this view by holding that isolated speeches or comments by low-level supervisors which are not —F authorized, encouraged or even known to the manage- ment should not be imputed to the employer as a breach of this section. NLRB v. Whittier Mills Co., 111 F.2d 474 (1940); NLRB v. Hinde & Dauch Paper Co., 171 F.2d 240 (1948). As the record is totally void of any proof that Rotek had knowledge of this violation, if indeed, it ever occurred, it is insufficient to support a claim of an § 8(a) (1) viola- tion and in hopeless conflict with holdings in other cir- cuits. The second incident is equally incapable of support- ing the allegation that it constituted an § 8(a)(1) viola- tion. In spite of a history of regular plant-wide employee- management meetings held to solicit complaints, encour- age management-employee dialogue and uncover griev- ances, which the Trial Examiner found were non-coercive and not violative of the Act (p. A8, infra), a meeting at the departmenta! level which not a single witness de- scribed as unusual, coercive or threatening (R. 48, 49) was held to violate § 8(a)(1). This finding is totally unwar- ranted by the evidence. In both cases had the Sixth Circuit reviewed and followed the precedent in virtually any circuit the Trial Examiner’s Decision would have been reversed. One of the outstanding cases in the area of § 8(a)(1) violations is Bonnie Bourne dba Bourne Company v. NLRB, 332 F.2d 47 (United States Court of Appeals, Second Circuit, 1964) in which the court stated that in similar circumstances a five-part test should be applied: (1) The background, ie., is there a history of em- ployee hostility and discrimination. (2) The nature of the information sought, e.g., did the interrogator appear to be seeking information 11 on which to base taking action against individual employees. (3) Identity of the questioner, how high was he in the company hierarchy. (4) Place and method of interrogation, e.g., was the employee called from work to the boss’s office. Was there an atmosphere of unnatural formality. (5) Truthfulness of the reply. Applying these guidelines to this case, the record shows that: (1) there is no history of hostility or discrimina- tion; (2) the information sought was completely innocu- ous; (3) the interrogators were the lowest-level super- visory employees; (4) the conversations took place at nor- mal plant meetings and; (5) the replies were truthful and candid indicating no employee apprehension. There sim- ply is no § 8(a)(1) violation indicated by these facts in light of the relevant case law. The conflict between other decisions and the Sixth Circuit becomes apparent when some of the instances in which the courts have refused to find violations are men- tioned. Inquiries, just prior to a union election, as to how an employee intended to vote was not a violation in NLRB v. McCormick Steel Co., 381 F.2d 88 (C.A. 5, 1967). Deferring a normal annual wage increase until after the union representational election (Louisiana Plastics v. NLRB, 173 NLRB 20,436 (1968) ) was not unlawful. Even the Sixth Circuit in an earlier decision, NLRB v. Swan Cleaners, 384 F.2d 609 (1967), held that questioning an employee about attendance at a union meeting was per- missible. In short, the instant decision represents a radical departure from relevant precedent with no word of ex- planation. The order is completely contrary to both the evidence and the law and should be corrected. 12 (2) This Court’s powers of supervision should be exer- cised—the Sixth Circuit has created a conflict in the decisions of the various circuits relating to manage- ment discretion and the manner of selecting employees for termination. The recession plan adopted and implemented by Rotek, as more fully outlined hereinabove, resulted in the ter- mination of twenty-seven employees. The Trial Examiner conceded that this reduction was in response to economic pressures (p. Al4, infra) but stated that petitioner’s totai disregard of seniority rendered the plan suspect (pp. A20- A21, infra). It is worthy of note that this conclusion com- pletely ignores the finding that five of the seven com- plaining employees had more seniority than did Billy Fowler, which deflates the argument that his case alone was exceptional for any reason. In accepting the Trial Examiner’s arguments, the Sixth Circuit completely disregarded the Fourth Circuit’s holding in NLRB v. Hackney & Sons (426 F.2d 943 1970). That decision held that although seniority was the most common consideration in selecting employees for termina- tion, it was not the only valid consideration which could be utilized. The standards used in Hackney were quite similar to those adopted by petitioner, and the conflict between the two circuits is quite obvious. Hackney stands for the proposition that management has some discretion in determining who it will retain and who will be termi- nated when the company is faced with a bleak economic future requiring reduction in the number of employees. The effect of any other decision would be to force every employer to layoff and fire employees on the basis of seniority alone, and this result is clearly not the intended purpose of the National Labor Relations Act. See also: 13 American Casting v. NLRB, 151 NLRB 172, 178 (1964) 365 F.2d 168 (1966), 7th Circuit. The Hackney case is further applicable to the instant case since, in the former, the employer exerted a chilling influence on the employees’ exercise of their right to or- ganize in violation of § 8(a) (1), an allegation in this case. The Court nevertheless held that absent proof of dis- crimination with respect to the manner in which employees were selected for termination, a finding that the plan vio- lated § 8(a) (3) could not be inferred from the § 8(a) (1) infraction. The inference which the Fourth Circuit would not permit in Hackney is the only basis on which the Rotek decision could have been based. It, too, cannot be permitted to stand. (3) By enforcing the Trial Examiner’s Decision, the Sixth Circuit has approved findings and conclusions which are so illogical, inconsistent and unsupported in light of the evidence, as to amount to a denial of petitioner’s rights under § 10(c, f) of the Act. The evidence presented at the hearing of this case was totally incapable of sustaining the subsequent finding that Rotek had violated any provisions of the National Labor Relations Act. Nevertheless, in spite of this clear absence of evidence of a violation, the Trial Examiner overruled this petitioner’s motion to dismiss the complaint, which petitioner supported by reference to a 1967 decision by the Sixth Circuit, Rivers Manufacturing Corporation v. NLRB, 376 F.2d 511 (R. 118-119), a case which should have been controlling. During the course of the hearing, the General Counsel failed to present any reliable evidence of the violations as- serted and was unsuccessful in presenting a prima facie anette nd | ee ee tad Sips MARE aC aD 14 case. Even more prejudicial to the petitioner were the ac- tions by the Trial Examiner who, in his findings, repeatedly stated that a witness for the General Counsel had pre- sented testimony which was unbelievable, unsupported, erroneous or uncreditable and then, a few paragraphs later, reversed his position and accepted integral portions of this same testimony to suport his decision. It must be beyond dispute that the Act places the burden of proof on the General Counsel, who must prove his case by a preponderance of the evidence. NLRB v. McGahaey, 233 F.2d 406 (Fifth Circuit 1956); NLRA § 10(c). Rather than follow these rules, however, the Trial Examiner chose to ignore his own findings that the union had engaged in no organizational activity prior to August 10, 1970, and that there was no such activity between that date and August 12 when the discharges were made (p. All, infra). He further overlooked his finding that the dis- charges were not unlawfully motivated (p. Al4, infra) and ignored well-supported and obvious inferences that petitioner had no knowledge of union activity or unlawful purpose. In short, he inferred the violations from the tes- timony of discharged employees, which is clearly in vio- lation of all applicable case law. Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th Cir., 1962); NLRB v. Fox Mfg. Co., 238 F.2d 211 (5th Cir., 1956); NLRB v. McGahaey, supra. On appeal to the Sixth Circuit, this petitioner argued that, in light of Rivers supra, it was entitled to a review of the record and, if unsupported by substantial evidence, a reversal. Rotek received neither. There is no indica- tion that Rivers was considered and, if it was, whether it has been abandoned as the law in this jurisdiction. A mere affirmance without comment in case where the bulk of the evidence is disputed and the Trial Examiner’s find- 15 ings are attacked as inconsistent, illogical and unsupported by substantial evidence on the record as a whole does not comply with Rotek’s undeniable right to review by the Board and the Sixth Circuit as provided in § 10(f) of the Act. In this case it amounts to a denial of due process of law. CONCLUSION This Court should issue the writ of certiorari prayed for and set aside the order here under review, not only to correct the injustice worked upon petitioner but also for the public good which would result from deciding the im- portant questions presented, concerning the interpretation and application of the National Labor Relations Act. Respectfully submitted, M. REESE DILL 2150 Illuminating Building Cleveland, Ohio 44113 Tel: (216) 523-1500 Counsel for Petitioner LILO LOL ELE AGE AVE IID ELIAS LEBEL IEL OPIOID IP ES PO Set ae ina ee ~ SOE oe BPE NS ER a REY Ra Ro net to) a IEE AILERON A BEEP INL: SORT OO einem, 1 = z A39 F of a labor organization was plainly well known to man- agement, since he had admitted on his application form, when hired, that he was a member of a union, and while employed always had a union sticker dis- played on his car in which he rode to work.” (Em- phasis supplied.) {2, 3] As to the October 2 discharges, the above in- ferences were, in our view, impermissible. We have held that the Board and its examiner may, without direct proof, infer illegal and discriminatory conduct by an employer. N. L. R. B. v. Bendix Corp., 299 F.2d 308, 310 (C.A. 6, 1962), cert. den. 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65; N. L. R. B. v. Power Equipment Co., 313 F.2d 438, 441 (C.A. 6, 1963); N. L. R. B. v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (C.A. 6, 1964); N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 596-597, 61 S.Ct. 358, 85 L.Ed. 368, 378 (1941); N. L. R. B. v. Nevada Consolidated Copper Corp., 316 U.S. 105, 107, 62 S.Ct. 960, 86 L.Ed. 1305, 1307 (1942), but a right to infer is not a right to create. We have the responsibility to inquire whether there is substantial evidence to support the conclusion reached by the examiner and affirmed by the Board, N. L. R. B. v. Murray Ohio Mfg. Co., 326 F.2d 509, 513 (C.A. 6, 1964), even assuming that all of the above outlined testi- mony provided by the witnesses Mayberry and Sanders is true. That testimony, alone, does not provide sufficient factual background to allow an inference that the com- pany knew that a union campaign was in progress, that the dischargees were active in such campaign, and that the terminations were made to frustrate the campaign and dis- courage membership in the union. Nor would the exam- iner’s apparent view that the company’s assigned reasons for the October discharges were neither valid nor credible provide the needed evidence of discriminatory motivation. See Lawson Milk Co. v. N. L. R. B., 317 F.2d 756, 760 (C.A. 6, 1963). 2 why . — 7 . —— . 7 cama LR RRE Ra SEC ele ene ne ES EE PNET EL LE OEE SOS LITE SSE EEC ELS ETE FLEECES EELS as | A40 [4] It was the burden of the General Counsel to prove the allegations of its complaint, to demonstrate that the company’s action was motivated, at least in part, by anti-union bias. N. L. R. B. v. Cleveland Trust Co., 214 F.2d 95, 99 (C.A. 6, 1954); Lawson Milk Co. v. N. L. R. B., supra; N. L. R. B. v. Murray Ohio Mfg. Co., supra. That burden has not been carried here. The examiner’s state- ment that, “The evidence sustaining General Counsel’s allegations that these October 2 discharges were designed to dis- courage further self organization is overwhelming.” (Emphasis supplied.) ; is without foundation. We therefore hold that the finding that the October 2 discharges were violative of Sections 8(a) (1) and (3) of the Act is not supported by “‘substan- tial evidence on the record as a whole.” This disposition of the matter renders moot petition- er’s motion that we remand the case to the Board to hear evidence upon its claim that the October 2 dischargees had not in fact signed union cards on September 23 and 24. The motion was supported by the affidavit of R. T. Rivers that one of the October 2 dischargees (Mayberry) was pre- pared to testify that the cards purportedly signed on the September dates were in fact backdated after the dis- charges; it was further supported by an affidavit of another dischargee (Haley) that a representative of the union had arranged for such backdating. Without any investigation of these charges of false swearing, the Board denied the motion primarily upon procedural grounds. The order of the Board so far as it relates to its find- ing that the October 2, 1964, discharges were violative of the Act is vacated and denied enforcement; in all other respects its order is enforced. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1749%3A1. Public record. Not legal advice.