M.P.C. Plating, Inc., Cross v. National Labor Relations Board, Cross

through and followed petition 2953.21 of Supreme to the Court his claim remedies, a or her exhaust his Ohio. To relief corpus for federal habeas petitioner before to raise his claims only required

is highest The fact

the state’s court. of the merits court does not address

state finding of preclude

the claim does 1168, Rees,

exhaustion. Harris v. Supreme refinements

Whatever Ohio area of makes in this

Court Ohio state are, course, matters

procedure habeas federal purposes

law. For requirement, corpus’s exhaustion present- adequately Manning

we hold appellate assistance

ed his ineffective Supreme Court to the

counsel claim result, Supreme Court

Ohio. As a opportunity to had a full and

Ohio Manning’s pe- the claims raised

consider corpus relief. Conse-

tition for habeas requirements of 28 exhaustion

quently, the Lundy, v. U.S. 2254 and Rose

U.S.C. § 379, L.Ed.2d Manning.

fulfilled judgment

Therefore, court’s the district is remanded for and this case

is reversed in Man- the merits consideration of

full corpus habeas

ning’s petition for federal

relief. Petitioner, PLATING, INC.,

M.P.C. Respondent,

Cross RELATIONS LABOR

NATIONAL

BOARD, Respondent, Cross

Petitioner. 89-5869, 89-6040.

Nos. Appeals, Court

United States

Sixth Circuit. 4,May 1990.

Argued Sept.

Decided wholly-owned corporation

It of its is wife, His Rose- president, Albert Walcutt. ann, secretary-treasurer serves as MPC’s bookkeeper. company’s and also acts as plating son-in-law and fore- The Walcutts’ Piwarski, Strozier, man, Benny long- David buffing department, time foreman of the Roth, engineer, Joseph a chemical are and employed only three individuals at the supervisory level.

During period, the relevant MPC em- thirty production approximately and ployed workers, approxi- whom maintenance mately permanent- fifteen were fourteen or ly payroll. remaining em- on MPC’s ployees temporary employees, through Temps, an MPC hired Ger-Mar agency Nigro employment owned Geri Marge Nigro Neither nor Martens. Martens have other connection to MPC or to the Walcutts. temporary employees worked

These permanent alongside the paid performed similar work. MPC temporary an for each hour $4.40 employee, a rate that covered unemployment wages, ee’s minimum com- pensation, and workmen’s coverage. permanent em- Unlike MPC’s F. William L.S. Ross and Donald Wood- ployees, temporary received Calfee, Griswold, (argued), Halter & cock fringe benefits. Permanent MPC em- Cleveland, Ohio, Plating, for Inc. M.P.C. ployees earned between $3.75 $4.50 Armstrong, Deputy Associate Aileen A. hour and received time-and-a-half over- Counsel, (argued), F. Mace Gen. Robert permanent employees also time work. Jr., Donnelly, M. P. William Bern- Charles paid hospitalization policy, a life received a Counsel, stein, N.L.R.B., of the Gen. Office days, plan, certain vacation insurance D.C., Washington, and Frederick Calatrel- benefits, fringe including partic- other N.L.R.B., 8, Cleveland, lo, Director, Region profit-sharing program. ipation in a Ohio, N.L.R.B. Shareef, per- In June of Rashad rolls, WELLFORD, employment manent MPC distressed KENNEDY and Before JOINER,* perceived unhealthy Judges, and with what he Senior Circuit working plant, at the Judge. unsafe conditions District organizing gan discussions about a union. WELLFORD, Judge. Circuit vacation, taking Prior to his Shareef asked (“MPC”), Strozier, foreman, Petitioner, Plating, for the name of the M.P.C. Inc. represented previously Relations union which had charged by the National Labor (This union had decer- practices, is a MPC workers. been Board with 1982.) plating engaged in tified in also told Strozier that small metal business He orga- plating parts. planned he to contact the union about buffing, polishing, and metal * Joiner, Michigan, District of sit- Charles W. Senior United Court for ting by designation. Eastern the Honorable Judge, United States District States District Rostrum, meeting. supervi- tion for Davis’ told Violet nizing. Shareef sor, Piwarski, orga- the list saw Davis with his desire employee, about another inquired union. its contents. Davis claimed former bring back the nize or to personal, list but Piwarski hearing, Shareef testified Board At the office and continued to called into an of the unionization beginning that at the question subsequently it. him about Davis asked Mr. and Mrs. Walcutt both efforts to view the list after Pi- allowed Piwarski eye on the keep an him to him he allegedly warski told would “acting strange.” also He they were cause allow him to leave until Walcutt talked to him questioned that Mrs. Walcutt testified Later, him. was to Davis admonished prospect discontent and employee about supervisors, grievances to his his union; she organizing a writing Before rather than them down. her” of these him “to report asked organizational meeting, Walcutt the union Shareef, divulged activities. questioned problems Davis about July nothing employers. his list, grievance stating that he would vacation, met with he while Shareef was concerns, he “correct” of Davis’ some Freeman, togeth- agent, and Terry union refused to accede to others. meeting for MPC planned a er time, informed given Shareef during ees that month. same Davis was About this rep- a union violating company he warning allegedly Strozier that had for temperature resentative. of certain regarding rules plating process. solutions used after his vaca- returning to work Upon temperature was be- Davis noted Mr. Walcutt’s tion, directed to Shareef was on the lab and so indicated low normal Shareef about questioned Walcutt office. imme- neglected he to advise his report, but Although organizing a union. the workers’ parts As a supervisors. consequence, diate nothing of the knew stated that he Shareef dam- thousand dollars were worth several efforts, told Shareef organizing Walcutt employee was aged. other involved The plant, rather down the that he would shut discharged, July and on subsequently to unionize. Shar- his than allow workers warning his for Davis received a written day, later that that eef also stated episode. part him that she knew Mrs. Walcutt informed underway. was organizing effort that an organizational the union Davis attended Shareef discover requested that She card. meeting signed an authorization cam- organizing the union was her who other work- attempted to solicit Davis any employee that also stated paign. She Later that sign ers to authorization cards. fired. be effort would the union behind angry allegedly day, Mr. became Walcutt he then called testified Strozi- that Shareef another em- overhearing Davis and after had Mrs. er, that Walcutt told him in the restroom. the union ployee discuss (Strozier) interrogate Frank him asked later, fired Davis. days Walcutt A few poten- regarding employee, Billip, another why he terminated questioned was Davis (Walcutt subsequently activity. tial union happened about which had for an incident he knew because not to bother told Strozier that this hold him week earlier. Walcutt begun.) had organizing efforts that attention; he to his just come incident had Billip that Strozier discuss testified just had learned that he also told Davis Af- organizing efforts. him the previously received that had Davis efforts, Billip admitting organizational ter Davis work. inattentive warnings “A1 then told that Strozier stated for his fired he was instead claimed that it” and was (Walcutt) already about knew provided rules union activities. something it too.” “going to do discharged when employee making any denied and Strozier Walcutts three viola- committed employee had attributed them. these statements to be tions, had the second however, an unem- writing. Subsequently, Davis, employee, draft- an MPC Everett determined referee ployment complaints prepara- employee a list of ed if it had proposal as designed the good cause discharged for Walcutt that Davis was any union activi- prior to way formulated discharge in no con- been his and that however, Nigro hearing, ties. At activities. nected to they had stated Martens orga- days after the union Within a few of MPC em- the transfer never discussed pro- meeting, majority nizational prior to payroll to the Ger-Mar ployees at MPC and maintenance workers duction April only evidence July 23. authorizing cards authorization a letter concerned discussions their Local 507 collective- Teamsters insur- certain Ger-Mar carried whether agent A union bargaining representative. re- discussions (There had also been ance. facility to visited the MPC promptly then temporary labor at Walcutts’ garding recognition from request union MPC.) business, at not plastics new talked to management. Walcutt position that he took the reception Mr. Walcutt separating the through a window employees to transfer An to MPC’s plant. wanted the interior of area from declining eco- because of MPC’s sign a letter Ger-Mar attempt to have Walcutt accountant, MPC’s The nomic circumstances. ignored. recognizing the union was Newcomb, had advised Wal- Douglas left a on a representative then letter temporary rely heavily on recogni- more ledge demanding cutts to nearby window measure, during saving and a cost did not labor as claimed that he Mr. Walcutt tion. by em- prior to the strike MPC then week a letter. receive such cash ployees, there had been insufficient demanding letter to MPC a certified mailed pay- the MPC meeting. their account to cover bank recognition and by July 22 let- roll. Walcutt testified accept delivery of the Mr. to MPC refused their immediate determined that he had ter. only problem could resolved cash flow be time, Walcutts At about transferring employees to Ger-Mar. by Temps Nigro of Ms. Ger-Mar met with employees to inform met with his Walcutt proposal to the Walcutts’ and discussed plan; proposed Ger- them the transfer permanent employees to transfer all MPC meeting. this principals also attended Mar immediately. Under payroll Ger-Mar’s that unless employees told the Walcutt put employees proposal, would this MPC Ger-Mar, they would to they transferred would con- payroll of Ger-Mar but on the Despite MPC. not allowed to work at MPC, weekly working receiving tinue admonition, only employees MPC this unemploy- and and workmen’s paychecks agreed to transfer. In through Ger-Mar. ment day, again next the Walcutts consideration, pay On the was to Ger-Mar MPC them to Nigro and asked twenty percent each em- with Martens premium of above July 23 letter of July to 16 the hourly rate. While Ger-Mar backdate ployee’s request- understanding: Mr. Walcutt its tem- provide insurance for medical Nigro prepare two Martens and Nigro ed that employees, Ms. porary stated alleged discus- MPC, additional letters possibility look into she would place regard- earlier had taken they would sions assured her which and the Walcutts wanted to plan. ing transfer Walcutt insurance associated offset costs original Al- as letters. pass the letters off profit-sharing plan was coverage. MPC’s copy Nigro prepared though Martens employees would scrapped, and MPC to be they July backdated 23 letter which policy their life insurance lose their 16, they it to MPC. Mr. July never sent bereavement leave. telephoned Ger-Mar later Walcutt under- Nigro prepared a letter of Ms. carry through with the they not asked that meetings or standing referred letter scheme. backdated and MPC which contact between Ger-Mar employ- refused to allow Walcutt place in November When allegedly had taken up to work July had not instead of ees who April plant, both payroll to enter place. they actually taken Ger-Mar’s 1985 when found that a She further employees initiated and MPC required if months; lose substantial benefits conse- strike, several which lasted payroll and that to Ger-Mar’s to transfer jobs. their employees lost most quently, justification theory was MPC’s economic following production the MPC resumed not credible. temporary week, using Ger-Mar per- began using ees, and then later fact, findings reviewing the again. manent if accept findings below this court must supported by substantial evidence. Board, are agreement 8(a)(1) Corp. v. Camera (1) Universal MPC had violated (1951). 95 L.Ed. surveil U.S. by requesting Shareef Act record, satis reviewing the we are After threatening to close by employees, findings of fact are unionized, the AU’s by fied that down if the workers plant evidence, includ by supported substantial union activi- interrogating Shareef effectively finding dis ing Billips making ties, by statements them charged requiring impression him the giving P.E. payroll. transfer to See Ger-Mar’s surveillance; (2) MPC violated under Pelt, Inc., (1978), and 238 NLRB 794 Van (1) by firing Davis for 8(a)(3) and §§ 1 Casting v. 831 Rapids Die Grand constructively dis- activities and Cir.1987). 112, (6th 117 to trans- who refused charging employees (3) en- and MPC payroll; fer to Ger-Mar's of dis types constructive There are practices in violation in unfair labor gaged The first is the “classic” charge cases. the the Act. Unlike 8(a)(5) (1) of working conditions are so §§ where the case the that because of Board found effectively employee is intolerable practices it would labor severity of unfair a situa discharged. The second involves parties. order on the bargaining impose a an employer in “an confronts tion which and desist a cease also issued The Board ei the Hobson’s employee choice with interfering from MPC prohibiting foregoing the continuing order or to work ther 7 of the rights under employees’ 7 him under guaranteed with Section rights perma- Oltmanns, Inc., hire a that MPC Remodeling by and ordered Act the Act.” force, (1982), offer reinstatement 1420 enf'd, 719 F.2d nent work NLRB 1152 263 discharged had been substantial evi employees We find four engaged finding in strike-related MPC con support a that but who dence employees under misconduct, discharged other relief. it structively and various theory type of constructive or this second effect, was, joint it argues that MPC discharge. that the trans- with Ger-Mar employer organiz- engaged payroll, employees were to Ger-Mar’s fer of its under the union, right guaranteed receiving virtually the ing a time, well aware and MPC was dis- Act at the benefits, not constitute a efforts. employees’ unionization discharge within charge or constructive addition, strong was evidence that there The AU meaning of Act.2 these ef- strong opposition to employ- Walcutts’ discharged” the “effectively MPC specifically informed forts. Walcutt to transfer to Ger-Mar’s refused ees who transfer they if did not 8(a)(3) employees that violated payroll and therefore §§ al- not be payroll, Ger-Mar’s Act, further that (1) and found of the Finally, Walcutt MPC. pay- lowed work MPC while Ger-Mar’s working at had not actually prohibited workers who working MPC. as not the same roll was argument it because an has such challenged waived appears MPC has not that 1. It appropriate exception with the an did not file incident. Davis Framing, Inc. Woelke & Romero AU. See NLRB, argues its that MPC has waived Board 2. 2071, 665-66, 102 U.S. file employer because it did not joint argument Nonetheless, (1982). 2082-83, L.Ed.2d 398 decision exception ALJ’s to the an argument. briefly address the will we agree argument. We and hold such bargaining against issuance of the or- to transfer to Ger-Mar enter agreed argues der in the case. MPC work. plant to it error for Board to reverse the was jus- may been some economic There have bargaining that no order AU’s conclusion effecting plan, the transfer tification the Board failed should be issued because rejec- error ALJ’s we cannot find findings as to make detailed factual re- totality under the this defense tion of Co., quired by Packing NLRB v. Gissel ques- There is a serious circumstances. L.Ed.2d U.S. 89 S.Ct. moreover, tion, whether the as to transfer circuit, (1969). In this there are three re- would have employees to Ger-Mar quirements which must be before the problem. There is MPC’s cash flow solved may bargaining Board issue order: the MPC clear evidence has autho- The Union fact obtained activity, and engaged protected in a majority employ- from rization cards (1) Act 8(a)(3) and violated §§ ees appropriate in an unit discharging its by constructively misrepresentations or other un- without ees. part request- has that it not re MPC contends bargaining; ed recognize bargain quired to signifi- employer dissipated 2. The has did not because the union follow by the cantly majority the Union’s com- establishing bar preferred method for violations; 8(a)(1) mission of section relationship. argues It gaining 3. A fair election be had under cannot conducted a secret employees should have particular all the circumstances of the election, merely signing than rather ballot case. to indicate choice of authorization cards Cal-Pro, Inc., F.2d at 1300. Indiana 863 representation. While elec the union v. See also NLRB Priced-Less Discount method, preferred it is tion is indeed the Foods, (6th F.2d In mandatory requirement. employ An not a a reaching its determination to issue bar recognize bargain er who fails to order, gaining the make factu Board must by majority a supported awith findings support al and must its conclusion may subject cards to un authorization there is causal connection between practice charges. fair labor practices probabili the the ty held. that no fair election could be Cal- Board, reversed the AU not Pro. 1300-01. This court will en bargain the and ordered that MPC bargaining supported only by force election, order cited Indiana union absent “conclusory statements.” Id. Cal-Pro, F.2d Inc. v. Cir.1988), support in of the decision to issue case, AU, relying the this bargaining As the Board cor order. lapse and the turnover high of time rate noted, rectly process is the the election employees, that she “would among method; in preferred extreme in engage speculation have rank as- prospect holding cases where the prac- labor sume 1985 unfair that [MPC’s] has elections been so diminished enduring, coercive ef- tices had and [sic] persistent employer’s unfair practic labor Therefore, declined to she issue fect. ...” es, may the Board order the employer to rejected The Board order. bargaining bargain with the based on majori reasoning, reversed the AU’s ty employees’ signing election cards and bargaining order. We believe issued majority strong sup other indicia was erroneous under circum- do so port. at 1300. stances. present employees passage of MPC’s

MPC contends None during the unfair alleged the worked for MPC labor time from violations to (four practices, severity MPC’s years), high rate viola turnover (over 100%), likely known to union tions would present employees. bargaining order picket line all militate misconduct require- three not warranted under the There is miss- ments set out Cal-Pro. SEARS, Sears, Dorothy John H. M. Wil analysis consideration ing from the Board’s Sears, Sears, liam J. Connie J. Todd A. test: element of the of the second Cal-Pro Sears, Christopher Sears, J. Herman T. practices MPC’s unfair labor whether Hinshaw, Hinshaw, and Ruth A. Plain significantly the union’s dissipated tiffs-Appellants, “ha[ve] findings to There are no majority....” support third element of this test: LIKENS, George Earnhart, R. Don B. all the fair election cannot be had under “a Jr., Hensley, Skiles, Louis S. Steven R. circumstances,” leaving the Board with Inc., Company, Ayres, Pendleton James persuasive justification for the conclusion Lapel Banking Company, and Pendle not have been that a fair election could Banking Company, Defendants-Ap ton had. pellees. accordingly de- We AFFIRM Board’s except respects order in all termination and No. 89-2926. bargain direction that MPC Appeals, United States Court of therefore union concerned. The ease is Seventh Circuit. such further orders and REMANDED for order, conditions, except for a Argued May 1990. may appropriate the Board deem Aug. Decided conclusion, light supported by

evidence, guilty that MPC was of unfair practices.

labor

KENNEDY, Judge, concurring. Circuit opinion except

I concur Court’s states: “There is miss-

the sentence which analysis

ing from the Board’s consideration element of the second Cal-Pro1

test: whether MPC’s unfair labor dissipated significantly the union’s

‘ha[ve] added.) (Footnote

majority_’” There really dispute regarding this second

element once MPC was found to have ef-

fectively discharged guilty practices

it was of the unfair labor

alleged. opinion, As stated Court’s jobs

most of the lost their prac- employer’s

cause of the

tices. With almost all of the gone, the

who authorization cards majority of those obviously lost the signed the The second element cards. must as of the

of Cal-Pro be measured occurred.

time the unfair labor Cal-Pro, (6th Cir.1988). Indiana Inc. 863 F.2d 1292

Case Details

Case Name: M.P.C. Plating, Inc., Cross v. National Labor Relations Board, Cross

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 4, 1990

Citation: 912 F.2d 883

Docket Number: 89-5869, 89-6040

Court Abbreviation: 6th Cir.