*1 course, to Air is, free cretion of the Force of Force. We therefore Air lation. both, 35-3, or to conclude that the district 11-1 or AFM court should re- AFR amend jurisdiction pending its notions tain the outcome of a past practice and reflect proceeding grant But the new waiver it can so that procedure. administrative salutary sought Mogave- and must the relief forthwith should plain is as now written regulation ro obtain a waiver. withdrawn. until amended be followed 683, 695- Nixon, States 418 U.S. United jurisdiction Retention of will also facili- 3090, (1974). 96, L.Ed.2d 94 S.Ct. decision, review of Air tate Force’s challenged, it be should to insure that IV has been proper inquiry made the waiver argues the district Mogavero proceedings that board. before the waiv- board, Mogavero’s the Air Force both remedy qualifications court’s to еr —remand availability of a proceeding vacancy new waiver board which for a —con must be he is suited considered as of accordance with AFM 35-3 in ducted was initially sought a waiver inadequate. He seeks imme time 1970. is AFR justice requires reinstatement, Specifically, Mogavero back that relief of judicial diate prejudiced in not be consideration of his retire credit toward and constructive pay request because present of his age waiver outright relief grant to such But ment. post-1970 manpower or because cutbacks Mogavero would that presume be to would reduced the Air have Force’s need for per- a in 1970 had granted waiver been have age qualifications. sons of his While As procedures been observed. appropriate realize retrospective we that such a evalua- noted, grant a waiv the decision to have we difficult, may tion be we think it within the speci to committed the discretion er of the Air capability Force’s administrative Mo accept To Air Force commanders. fied process. to required we be argument, would gavero’s an abuse it would have been conclude PART, AFFIRMED IN VACATED IN grant a waiv Mogavero not to discretion PART, and REMANDED WITH IN- cannot do the record before This we er. ; STRUCTIONS MOGAVERO TO RECOV- Davis, Law See K. Administrative us. ER COSTS. Thus, we think that 7.10 Treatise apprоpri remedy court’s is the the district one.
ate those
The Air Force admits having authority grant to
commanders credit pay or cannot award back waivers PRODUCTS, DENTAL LITTON DIVI- However, suggests retirement. toward LITTON SION OF INDUSTRIAL Mogavero’s receives a application if PRODUCTS, INC., Petitioner, remand, can ob disposition favorable from the Air Force Board full relief tain Records. We do Military the Correction NATIONAL LABOR RELATIONS Mogavero put be think that should not BOARD, Respondent. his already He has exhausted burden. No. 75-2239. once, including ap remedies administrative If he Appeals, to the corrections board. United plication States Court of waiver, obtaining he should Fourth Circuit. succeeds proceed through required to further not be Argued June properly He has channels. administrative Decided Nov. review, we right judicial his invoked only be case to the Air Force remand we court neither nor the district
cause dis- judgment our for the substitute
should *2 Dee,
Francis X. for petitioner. Sewell, Atty., G. Robert Wash- Jr., (John Irving, ington, D.C. S. Gen. Coun- sel, Jr., Higgins, E. Deputy John Gen. Coun- Moore, sel, Deputy Elliott Associate Gen. Counsel, N.L.R.B., Schmier, Michael K. N.L.R.B., Washington, D.C., brief, Atty., respondent. BRYAN, Judge, Senior Circuit CRAVEN, Judge, Circuit and J. CALVITT CLARKE, Jr., United States District Judge.* BRYAN, ALBERT V. Senior Circuit Judge:
Enforcement of the National Labor Rela-
Board’s decision and order of
tions
Novem-
14, 1975, finding Litton
ber
Dental Prod-
ucts,
Products,
Division of Litton Industrial
Ohio,
Inc.,
Brookpark,
in breach of Sec-
NLRA,
8(a)(1),
158(a)(1),
tion
29 U.S.C. §
judgment
be denied.1 The
will
was entered
complaint
that Litton
Board’s
in an
engaged
practice
unfair labor
in that
employees’ rights by
interfered with its
attempting
on-going
to disarm and stall an
organizing
by removing
drive
Union
employee grievances
causes
further
promising still
relief.2
charge
recently
The nub of
is that
daily
failed to allow two
“cоffee
telephone privileges,
and certain
breaks”
only
five
employer,
after the Un-
recognition,
ion’s demand
reinstated
indulgences
employees,
and invited
these
remedies,
report
assurance
*
Warehouse,
by designation.
charging party
Sitting
2. The
was the
In-
Union,
Employees’
dustrial & Service
Local
here rests on
Jurisdiction
The Vice President of
Rela-
tions,
Byram,
facility
Robert
went to the
recount,
This factual
taken from the
investigate
suрervisory
14 to
October
findings,
Board’s
of itself irrefutably dem-
to ascertain its effect on the
problem and
that the Frick discipline
onstrates
had been
he talked
employees. While there
individu-
voluntarily by
rescinded
Litton before ever
employees
some of thе
and his
ally
having
the proposal
word of
of a union.
the causes of the
interrogations
turnover
& Co. v.
J. P. Stevens
461 F.2d
with a consensus:
(4
1972),
were answered almost
Judge
Cir.
for the court
was Frick.
phrased
question
the center of the disaffection
Boreman
next before
Although
company’s general policy
us in these words:
another,
and set
also found that Litton’s conduct
the Union
3. The Board
been defeat-
by
subsequent
present
a
election
interfered with
ed in the first. The
case does not
19, 1974,
employees
any
questions.
vacatеd it
on December
involve
of these
Company’s
telephone
is the
feebreak and
problems
in such cases
issue
within a
“The
is whether there
week
question
appears
after his arrival
motive.
to be an
support
finding
to
expected
prior
evidence
conclusion to these
substantial
events
granting
intent
employer’s
response
rather than a
to union activity.
timing the announcement
benefit or
His
to employees
invitation
discuss
re-
benefit was to
of the
granting
problems they might have is a normal
freedom of choice
employees’
strict
to the redress
concomitant
of employee
infer
the bene-
cause to
giving them
morale problems.”
withdrawn
future bene-
might
fit
be
It is
why
not clear
the Board wanted to
they select a union to
should
fits withheld
“get
into
Seemingly,
the act”.
it would
represent
them.”
[Citations omitted.]
intra-company
an
prefer
solution of an in-
obligat
Board
this issue the
On
tra-company difficulty. Furthermore,
that the restorative acts of the
prove
ed
employer was in an unenviable predica-
*4
to sway
were undertaken
the em
company
heal
ment. Had it not moved to
the em-
accepting
rejecting
union or
ployees in
hurts,
ployees’
it would have been open to
so declared in Monroe
ganization. We
obligations;
neglecting
criticism for
but
(4
1972),
124
460 F.2d
Cir.
it
apply
whеn
did
a cure the Board accused
Judge Young:
District
through
saying
practices.
it of unfair labor
employer]
come
“Once Monroe [the
repeat,
opinion
To
we are of the
not to
legitimate
and
with a substantial
forward
uphold the Board’s sanctions.
сonduct,
for its
the
justification
business
Order not enforced.
Board
was on the
to show
burden
granted
were
the
improvements
the
for
CRAVEN,
Judge (dissenting):
Chief
influencing the outcome of the
purpose of
Industries,
brothers,
N.L.R.B. Gotham
election.
it is
clear
Paraphrasing my
not
Inc.,
(1st
1969).”
Cir.
why
“get
аct,”
My draw an in- they can
brothers’ belief better well or than Board as
ference as empow- are belief that
it is with their
ered to do it. September all of
For most of October griev- company employees’ knew its changed not. On November 1 it
ances activity
learned of Union and claimed ma-
jority representation. Five later the Company unilaterally giving acted — they sought. Coincidence, what
employees say. To thwart
my brothers Union Board, points to the
campaign, says the testimony that he did manager’s
new not making changes until after
consider Surely, demand. man-
November 1 Union
agement’s testimony constitutes substantial
evidence. in vain
Having sought authority *5 viewpoint
of the court to substitute its for Board, I respectfully
that of the dissent. Louthian, Columbia, Herbert W. C., S. America, Appellee, UNITED STATES of appellant in 75-1715. Ruschky, Eric William U. Atty., Asst. S. SIMS, Appellant. Dennis Columbia, (Mark Jr., C. Buyck, S. W. U. S. Atty., Simpson, Thomas P. U. Atty., Asst. S. Amеrica, Appellee, UNITED STATES C., Columbia, brief), appellee S. 75-1714 75-1715. Reginald WILLIAMS, Appellant. Nos. 75-1715. HAYNSWORTH, Judge, Chief BUTZNER, and WINTER and Circuit Appeals, United Court States Judges. Fourth Circuit. Argued Sept. PER CURIAM: Decided Nov. Reginald Williams and Dennis Sims were 10, 1977. Certiorari Denied Jan. guilty by jury found of armed bank rob- See S.Ct. 764. bery in violation 2113(a) U.S.C.
(d) and each was prison sentenced to a term years. twenty-two challenge Both defendants giving of a jury instruction common law confedera-