DUBIN-HASKELL LINING CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 10242.
United States Court of Appeals Fourth Circuit.
Decided Nov. 10, 1967.
Argued Oct. 3, 1967.
We conclude that the District Court erred in holding that appellant has failed to exhaust his State remedies. Once an issue of asserted constitutional violation has been presented to the State‘s highest court, the doctrine of exhaustion of remedies does not require future repetitive presentations to such court by additional attempts through a variety of successive motions. Coleman v. Maxwell, 351 F.2d 285 (6th Cir.).
It is our opinion that the complaint in his present case presents factual issues requiring an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
We therefore reverse and remand for an evidentiary hearing on the issue of whether appellant was an indigent at the time of his conviction in 1954 and whether the denial of his efforts to appeal in forma pauperis and to obtain a free transcript deprived him of constitutional rights under Griffin v. People of State of Illinois.
For the guidance of the District Court on remand, we point out that appellant does not complain of deprivation of any constitutional right in the original trial of his case in the State Court. The only basis for his application for writ of habeas corpus is that he was deprived of his right of appeal to the Kentucky Court of Appeals. If upon remand, the District Court should conclude that failure to grant appellant an appeal in forma pauperis from his original conviction and to furnish him a free transcript violated his constitutional rights under Griffin v. People of State of Illinois, it would appear sufficient for the District Court to grant the writ of habeas corpus unless the Kentucky Court of Appeals, upon appellant‘s application within a reasonable period of time, declines to grant him a delayed appeal from his original conviction, a remedy which that Court seems to have allowed in other appropriate cases. Hammershoy v. Commonwealth, 398 S.W.2d 883 (Ky.); Davenport v. Winn, 385 S.W.2d 185 (Ky.). Only in the event the State Court of Appeals should deny an application by appellant for a delayed appeal would the District Court be required to grant the writ conditioned upon failure of the Commonwealth of Kentucky within a reasonable time to initiate proceedings to try appellant again for the offense for which he formerly was convicted.
The Court expresses its appreciation to Mr. William K. Engeman of the Cincinnati bar for his services as court-appointed attorney for appellant.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Elliott Moore, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., N.L.R.B., on brief), for respondent.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges.
WINTER, Circuit Judge:
In Dubin-Haskell Lining Corp. v. National Labor Relations Board, 375 F.2d 568 (4 Cir. 1967), a panel of this Court granted enforcement in part, and denied enforcement in part, of an order of the National Labor Relations Board. The order concerned a certain Fred Cox, an employee in the shipping department of the company. The Board found that Cox had been interfered with, restrained and coerced in the exercise of his
Thereafter, the Board petitioned for rehearing or, in the alternative, for rehearing en banc, limited to the
Briefly stated, the facts are that Cox was discharged on Saturday, July 25, 1964. Three days later, Cox filed charges with the Board, alleging that the company had violated the Act by terminating his employment for union activity, and by other acts and conduct which interfered with, restrained and coerced employees in the exercise of their statutory rights. The next day, the company was served with a copy of the order, at its Collierville, Tennessee office.
On July 30, Cox telephoned Jones, the plant manager, and asked if he could see him. Jones consented, and Cox went to Jones’ home.
What transpired at the meeting was the subject of conflicting testimony. The trial examiner found, and his finding was adopted by the Board, that Cox told Jones that he was there to see him about getting his job back, and that Jones told Cox that the home office would not let him hire Cox back because Cox had filed a charge against them. Cox told Jones that he would drop the charges if Jones would give him his job back. Jones told Cox that Droxell (another manufacturer in Moscow, Tennessee) had called him about an application Cox had made for employment, that he (Jones) could not recommend Cox, and that Cox should not have hopes of ever getting back to work for the company. Cox further inquired of Jones whether Jones had talked to the home office in New York. Jones replied that he would do so, but that Cox should not have any hopes of ever getting back to work with the company. Accordingly, the trial examiner concluded that Jones had revealed that the company “*** was not and would not consider Cox for reemployment because Cox had filed unfair labor practice charges” — conduct in violation of
Cox did testify as the trial examiner found, but Jones testified to the contrary. He claimed that he refused to reinstate Cox for the same reasons that Cox was discharged, although the record is not clear that he communicated the reason for the refusal to Cox. He testified further that his only reference to Cox‘s having filed unfair labor practice charges was that Cox could not drop the charges before the investigation had been made. Jones was specific in stating that Cox was the one who brought up the subject of the charges, but that he, Jones, did not. The trial examiner found, from Jones’ testimony and a previous inconsistent affidavit, from his demeanor as a witness, and from his testimony as a whole, that Jones’ testimony was not reliable and, accordingly, did not credit his version of the incident.
Matters of credibility are essentially questions for a trial examiner and the Board. Demeanor as a witness is an important element affecting credibility, but one which is not reflected in the ordinary transcript. There is, however, in this case, an affidavit of Jones which, at the hearing before the trial examiner, Jones admitted was true and correct at the time it was made. In the affidavit, Jones stated that Cox arrived at Jones’ home at 4:30 P.M. on July 29 and asked for his job back. It continued,
From the premise that Jones disclosed the company‘s reason for not considering Cox for reemployment was because he had filed unfair labor practice charges, it necessarily follows that
Enforcement granted in part.
BOREMAN, Circuit Judge (dissenting):
I dissent. With respect to the alleged
Judge BRYAN has authorized me to state that he joins in this dissent.