*2 Judgе, part. Chase, Circuit dissented HAND, N. Before AUGUSTUS L. CHASE, Judges.
HAND and Circuit HAND, Judge. Circuit AUGUSTUS N. Relations Board The National Labor peti- Board) has (hereinafter called the its order of Feb- tioned for enforcement of 15, 1951, Company, ruary directing Childs Childs), (hereinafter called a restaurateur Employees Local 42 of the Restaurant Union) (hereinafter called the Union specified unfair la- from cease desist provides practices. The order bor further Russell R. that Childs offer requires employment and Potter immediate make Potter whole Childs and the Union to any have suffered loss 1948, 28, because of the refusal to hire him. Septеmber 1948 Potter filed with the
In discharged him charge that Childs Board a 23, January ground on shop agreement between Childs a closed power latter gave de- and the Union discharge though his dues were mand 29, 1948, paid to date. On October alleging in addi- an amended filed been denied reinstatement tion he had 28, requestеd it on October The Trial Examiner and the and the Union en found that Childs agree bargaining into tered a collective shop provision containing on a closed ment ex its terms December pired September and that on renewed on agreement was May 1, 1950. continue until The closed Counsel, Bott, .illegal shop agreement unquestionably General David George J. subsequent passage Counsel, it was made Findling, Associate General A. since P. Counsel, Somers, Law. Asst. General U.S.C.A. Norman jurisdiction Frankel, 158(a) (3). E. Board’s U. Reel and Marvin Frederick § shown, Bldg. R. Washington, C., N. B. v. Denver & D. Marvin all of E. Fran- Council, kel, C., counsel, 341 U.S. Trades Washington, for Const. D. much 95 L.Ed. and so petitioner National Labor Relations Board. S.Ct. Potter’s cause Union conceded requires and the January discharge of entering action based into desist from to cease and Examiner security The Trial provi- barred. giving effect the union requested new agreement also held thаt Potter bargaining sions of collective *3 employment except as conditioned should be enforced. position and reinstatement his former to the argue that The Union and Childs pay. seniority rights of and back em- grants in so far as it erroneous Board, however, held that Potter a letter ployment Pоtter because and back to 1948, 23, to on had uncon- Childs Act, Taft-Hartley 10(b) Section ditionally new asked for “* * 160(b) provides that: U.S.C.A. § discrimination, thus found a new time this complaint upon any un- issue no shall based respect hiring, with to which occurred on practice six occurring more than fair 28, 1948, when refused Childs em- prior chаrge with filing months the to to Potter of its closed * * undisputed that the shop contract with the Union. In our discharged on by Potter was Childs Janu- finding the Board’s the letter 23, 1948, the ary at and that this done expulsion after Union’s of October constituted demand the the Union anti-union As activities. for supported the by new is not held his Intermediatе Trial Examiner record. Report: “Any whatsoever all Briefly facts are as On the follows: flowing illegal discharge ex- from the were a letter to Mr. Potter wrote by tinguished reason Potter’s failure to of Frank, the chairman of the board direc- file his charge based thereon with the Childs, is set forth text of which tors of thе period required Board within the 6-month July Section the Corn- 10(b) margin.1 Act.” The Board On in the just recently “You recall date of March under of directors one the bourd you assured the In fact most con- Chairman in office. restored back always ship Company, Childs took Since ex- the strike. doned liberty writing introducing myself cоrresponding salary you, pected and received simultaneously every as a stockholder and a former after de- increases years. of same for than all .more it was for stock- Which mand. And sad hung opera- on, for some has reason acknowl has that war holders that edged being beguile рrofits received. them inable to tion you my (over “In same I informed Trustee the recom- Court company report severance from the was due their mendation of S. E. C.’s management up responsibility attempt- to a cooked conviction ‘that I held year. company) bankrupting ed to break the strike’ into last Which my operating storing caused union officials charge. back into to demand dis- slate office obsolving past recommending (cid:127)by came them of Which to without company’s management personnel de- blame. partment putting objections. “Whereby judge by new stock the least if we Department Bloomingdale market, lows, Such in a bull fearlessly protect turning again so did to out another white Store three employees against expense crop discharge elephant individual new accepted post their demands union officials. holders who stock you ‘Which, projections if and still hold have followed the on. war investigation “Any way injustice papers, an has caused to be in face of the Washington by management Repre- company’s has soon started abuse Hartley to out officials deal the cards sentative employers ferret ‘those union condoned guts try against who haven’t had the I have desided to me. up Hartley’s Representative and be counted under the stand Hartley Taft- interest investi- provisions.’ complaint along gation into case and Law news “And since are one of the new other chain stores his cast of with company, I will date stockholders mentions. great difficulty say, have I would like have one would “Of course companys management goodwill of all New Directors the mat- find another played sure. more so ball and less ‘Guts’ over Who I am No than ter. rampant, life of unionism’s than the by the 1948, I Com- tober was informed pany receipt of this letter acknowledged ex- complaint pany pursuant the terms 'and that his advised Potter contract, not rein- they could Apparently isting labor receiving no consideration. position.” state me until Oc- further communication was had again wrote tober Mr. was a letter last communication Frank as follоws: April 10, 1949, as fol- Potter to bring your atten- again “This will lows : tion fact that have inquiry “This is an to ascertain comply failed to with the assertion become whether this time your Which July letter to me of 8th. Act, familiar with the respond was made to mine of *4 June New recognized you submitting in that erred you In I as 24th. which voiced to my the Union’s demand to terminate to Company Leader, complaint agaifist my employment Company with Childs at loss at of with you officially 109 West Street. As 42nd Especial- demand Local 42 officials. 28th, in stated letter October ly Company’s Person- that the the.fact n ‘Pursuantto you union was contract re- nel Director floutеd the quired to do.’ complying Act in with demands. such you may “In have detected the event disposi- “Any way, no further since except same was made in error. Please received, I desided was tion of of same request this as another to be reestab- complaints to National to take such comрa- employment lished in the of the airing. for Labor Relations Board rights. ny with well as com- former As may you not Which know pensary losses I have suffered as so I had contacted about. since And you perhaps results. Which are aware might I be sure I on the matter felt pending claims have with Na- of same.” arе made aware tional Labor Relations Board.” foregoing letter It that is to noted April The letter was excluded from con- original filing of Potter’s followed the sideration the Board on the September in Board charge theory that it was not indicative of Potter’s Company replied On October intent at time of the letter October as follows: Potter’s letter in which Board found that 23rd, 1948, “Your letter of October requested Potter had new Frank, has been re- addressed to Mr. any justification We cannot see for the situ- to me. I have reviewed the ferred conclusion of the that Potter Board was find, pursuant tо the ation and employment asking for new rather than re- Compa- between the terms contract instatement to his former Em- Restaurant ny Chain Service rights. 23, 1948 His.letter Company Union, Local ployee’s (1) things: fers to two his letter of June required your employ- terminate was complained in generally 23' which he оf the Under these circum- ment with it. Company’s oppose failure to the Union’s stances, Company cannot restore request discharge, (2) for his your position.” former charge Sep- he filed with the Board his day tember, next filed amended only complained of the which he reiter- charge with the illegality disсharge. How either ref- his September original filed his ated erence can construed as a demand 1948 wrote “On and added: new rather than one res- requested rights beyond that I be former to the toration of our position. comprehension. former On In Oc- the amended charge- reinstated Bloomingdale did; bring Chairman, con- Would same to the directors attention fight careing union acts officials’ of all directors. done without Outside Mr. kicking already stock- Finn have individual who I informed same.” iolders around. add, you, like will would “I to, in, his reinstatement and restoration himself said filed October original position with back seni- fоr reinstatement letter April ority. em- merely asked for new position. Had he The letter to his former his de- dating utter- from the time of ties with all mand, independent interpreting and been an it would have ances and is to be read him, al- conclusively practice” shows “unfair labor to refuse reaffirming them. original though the refusal were for seeking times reinstate- that he was all e., unlawfully de- reason: i. the union and not rights ment to his former said, possible to read already manded so employment. As is indeed it. new words, so but it seems to me that do was barred to these restoration limitation, purpose there- be- charge in time and defeats the to file his failure required making to ac- a new “unfair fore cause results practice” repeated the Third Circuit out of each refusal cede So demand. Inc., Pennwoven, L. R. B. v. retract. held N. relent and necessary consequence the initial where the same issues here indеfinitely, presented. persist wrong can be made to have been seem employer finally unless the recants and though Pot- argues The Board that even *5 the union. same must be also true as to he was ter more than demanded is in National true that the Third Circuit bound to offer Company entitled to the Inc., Pennwоven, Labor Relations Board v. employment. him new had But Potter point, 194 the be- did not decide rein- right, claimed different to wit: a employees cause asked there too the statement, and it failed to assert “reinstatement,” so the court or at least only prevents The time. statute discrimina- held, respect reversing the Board. that regard tion in hire the where discrimi- However, arguments, the on which the encourages discourages member- nation opinions of the their construction based ship organizations. in labor 29 U.S.C.A. § section, apply grant equally to a refusal 158(a) (3). apparent not to us how is emрloyment de novo refusal to re- a Company the was bound under statute the corollary were that it was instate. These a give right Potter that he never asked discharged of the Board’s that right failing give for and how him such a wages; employee future could never recover by constituted discrimination forbidden there could be an end to never Act. controversy because in the Board’s view petition granted for enforcement is wrong continuing tort.” was a 1(a) (1, 2 3), 1(b) 4), as to (3 and (1, 3), 2 and 11(a) 11(b) (l,2 3) part by abating I do not believe that order. Enforcement of remain seniority original of his and back relief— dealing der of the Bоard’s Pot keep pay “unfair can alive an —an ter’s reinstatement and back is denied. practice,” employer con- labor agree adhere. of course that if tinues to HAND, Judge. Circuit employer Potter refused concur, interpretation but ground, an a new which also constituted § 10(b) Labor-Management “unfair labor the statute would practice,” Relations an quite apply; Act1 not the same me as that of but seems to the not condition, question discharged chief. as to the Potter was without “any meaning done him should be in- wrong words unfair deemed labor practice divisible, occurring more than construe six months the statute prior and, charge”, privilege to the filing keeping him the alive giving as as opinion, though part grievance, limitation not understand ran a his whole, .against only not conduce to that would industrial demanded portions 2. Those notices deal with Potter’s that are Union which reinstate- posted by Company be and the be deleted. ment shall 160(b),
1. § Title U.S.C.A. peace which purpose really it is the overall haven’t want denied what Act to seniority secure. reinstatement with and back
pay. You right have lost to make us do all that ignore and so we will CHASE, (dissenting in Judge Circuit your application for the same reason that part). fired place.” the first Thus Pot- I think the decision of the Board should ter’s failure to act within the time limited entirety. be affirmed in its This record legal for the wrong put redress of one leaves no doubt whatever that Potter de- him apart. application class While an sired to work for thе Childs by other job waiters for a with this em- his letters of June ployer only need give the to un- reasonably 1948 were read the Board as wanted, must, derstand that a if application an job. for a Failure to hire sound, this decision is enough skilled was, by itself, him in October discrimina- labor law to language making ap- choosе tory practice and an unfair as the plication which will give him under Board held. said, As the Board “Examina- only the Act not to show that he wants a tion of reveals, however, these letters job but disclaimer, to amount to a drawn, are inartistically while writ- abandonment, an of everything of seeking er was relief in form concrete which he deprived. had been unlawfully Any doubt the Absent such approach a narrow to the in- might have had about Potter’s wish terpretation application, letters of following receipt hired finding of the clearly Board was not er- dispelled by must have letter his Octo- roneous and given should be effect on letter, ber 23 which was written after the principles. familiar *6 Indeed, the more liber- filing the initial the Com- al attitude toward interpretation pany’s disposition failure make a mat- demands of those unskilled in stating them ters discussed in the letter. The prevailed which in our recent decision in Company’s reply of October clear- N. L. R. B. v. Equipment Co., Electronics ly shows that it considered Potter’s October Cir., 194 F.2d dec’d February 18, 1952 request letter to be a should be followed here in upholding what waiter it the refused to the Board has done. him position, although store his former it was at time hiring According- waiters.
ly, find on October
requested employment by Company.” justified
Its refusal tо hire .cannot request denial of for rein- AMERICAN CRYSTAL SUGAR CO. v. rights. statement with N. B.R. MANDEVILLE ISLAND Pennwoven, Inc., Cir., v. FARMS, Inc. et al. 4, 1952, distinguishable dec’d on that Feb. No. 12946. request ground. Such a for reinstatement coupled was not for em- Appeals, United States Court of long until afterward in his letter Ninth Circuit. Moreover, April 10, the letters of March obviously in the a laborer unskilled niceties May 26, 1952. Writ of Certiorari Denied laws the labor should not be read with See S.Ct. 1052. the strictness old-fashioned way legal pleadings. to construe
enough told that the to be
man wanted hired and it is most
harsh to allow the to flaunt the him, though “Well,
law said to
we know have asked for a as a and we are hiring
waiter waiters but