*1 142 Oliver, 257, analysis, In re 68 basis I 333 U.S. On the above
Black (1948): 499, L.Ed. 92 682 submit there was no re- intentional S.Ct. right linquishment by petitioner guar- other benefits “Whatever public imputable to a trial to him because trial to an accused that his antee object of the failure of counsel his may public confer conducted exclusionary order. guarantee always society, has our recognized safeguard against The fact that defense know- been as ingly any attempt employ object courts did not our exclusion or- as persecution. support peti- not der does a claim that instruments himself, knowingly knowledge tioner, every failed criminal trial also is object. may subject contemporaneous review in We are instructed that we presume has, by public opinion forum of is an ef- that an accused silence, possible waived constitu- fective restraint abuse of a fundamental right 270, judicial power.” tional and are instructed that we U.S. indulge every presump- reasonable S.Ct. at 506. against Carnley v. such a waiver. 25, n. authorities cited id. at 270 See Cochran, 506, 884, 82 S.Ct. U.S. right Therefore, as when S.Ct. at L.Ed.2d 70 involved, one basic as this Judge Foley. require I would affirm reason to that counsel con- sound choosing not sult with accused before enjoy that his benefit insist client of it. closing majority
In the sentence peti-
opinion, implication there is an produce proof spe- specific
tioner must prejudice may cific before he claim INC., TEXACO HOUSTON PRODUCING public DIVISION, because he did not trial Petitioner, have a he meaningful deprivation. suffered a Con- v. trariwise, maintain, Eighth I as Cir- NATIONAL LABOR RELATIONS early 1917, cuit maintained as BOARD, Respondent. right public when the to a trial has been No. 25502. violated the United States Appeals Court of “ ** * violation of the constitu- Fifth Circuit. right necessarily implies preju- tional March ap- dice more than that need pear. Furthermore, would be diffi- Rehearing En Banc impossible, cult, in such cases 9,May Denied any point for a defendant def- inite, personal injury. require To him destroy impair
to do so would
safeguard.” States, v. F. 398-
Davis United 1917). L.R.A.1918C, (8 Kobli, 172 F.2d United States v.
Accord: Tanksley (3 Unit States, 58, 59,
ed 10 Alaska (9 See 156 A.L.R. supra Note, also N.Y.U.L.Rev. 1149; supra Note, 49 Colum.L.Rev. exceptional
Lastly, here there were no pressures
circumstances of the sort
encompassed within fourth variable. *2 Jr., Houston, Tex., Butler,
Oliver J. Mitchell, City, J. M. York New Obediah Miller, Houston, Tex., petitioner. R. for Tex., Dixie, Wolf, Houston, James P. Houston, Dixie, Hall, by Wolf & Chris Tadlock, Tex., intervenor, John R. Counsel, Oil, Atomic Chemical and Gen. Denver, Union, International Workers Colo., of counsel. Mallet-Prevost,
Marcel Asst. Gen. Counsel, Giannasi, A. Robert C., Atty., NLRB, Washington, D. Arnold Ordman, Counsel, L. Gen. Dominick Manoli, Counsel, Assoc. Gen. Michael N. Atty., N.L.R.B., respondent. Sohn, Kleiman, Chicago, Ill., Bernard Elliot Bredhoff, Gottesman, George Michael Washington, C., Cohen, D. for United AFL-CIO, America, Steelworkers amicus curiae. BELL, Before and Circuit GEWIN Judge.
Judges,
BOOTLE,
District
Judge:
GEWIN, Circuit
peti-
This case
us
is before
Producing
Inc.,
tion
Texaco
Houston
Division,
finding by
review
Board that
National Labor Relations
8(a)(1)
Texaco violated sections
8(a)(5)
Labor Rela-
National
Act,
By cross-peti-
tions
as amended.1
the Board
enforcement
seeks
finding.
pursuant
the order issued
to its
deny enforcement.
We
employee Gilberto Alaniz was
Texaco
suspended by
his foreman on
5, 1965,
Al-
observed
after
foreman
two-gallon
leaving
plant with a
aniz
belonged to the
can of kerosene which
Company.
action was
foreman’s
compliance
company policy
which
employee suspected of
required that an
immediately suspended with the
theft be
understanding
no
that he
suffer
pay
subsequent
loss of
support
suspicion.
failed
suspension,
Following
Alaniz’
comptroller
Company’s
commenced
alleged theft and
of the
Alaniz
scheduled an interview
U.S.C.
seq.
et
§§
Alston,
practice.5
bargaining”
R.
an auditor
November 17.
J.
“Collective
assigned
department,
8(d)
perform-
defined
section
“the
investigation.2
obligation
At
outset
make the
ance of the mutual
requested
employer
Alaniz
representative
of the interview
and the
representative
permitted
to meet at
reasonable
times
*3
request
good
was denied but
respect
This
and confer
attend.3
in
faith with
wages, hours,
advised that he would not
Alaniz was
to
and other
terms and
* *
6
required
inter-
employment
to continue with the
be
conditions of
Alaniz,
if he
to
view
did
wish
do so.
The
Company
Board found that
the
vio-
during
however,
proceed,
provisions
by
chose to
and
lated these
of the Act
re-
fusing
had
the
confirmed
that he
request
repre-
interview
Alaniz’
for union
use,
personal
taken the
for his
kerosene
sentation at
the interview.
find-
This
by
ing
premised
but
foreman
denied an accusation
was
the
the Board’s view
company property
Company sought
that he had
during
taken
that
the
the
previous occasions.
interview to deal with Alaniz concern-
ing a
employ-
term or condition of his
in-
of his
results
reported the
Alston
ment.
manager
the Hous-
vestigation
of
disciplinary
record,
Producing
No
study
Division.
ton
a careful
After
the
recommended
in
taken
fact nor
action was
neither basis in
can find
we
report
examining the
a
After
interview.
that
the
conclusion
Board’s
law
supervisor of
consulting
the
representative
and
with
have been
union
manager
relations,
during
the division
employee
present
the inter-
permitted to be
manager
general
overwhelming
of
the
to
recommended
The
evidence
view.7
Department
Producing
that
investigatory
the Domestic
the interview was
one-half
and
suspension
absolutely
sixteen
of
evi-
no
there is
nature
and
appropriate
dis-
days
sought
working
comptroller
dence that
the
accepted
manager
general
consequences
cipline. The
the
Alaniz about
deal with
suspension
the
and
alleged
the recommendation
The function
of
misconduct.
his
Alaniz
Alaniz,
to the date
retroactive
question
was made
the interview was
of
by
duty
foreman.
his
bargain
of
was relieved
him.8
not to
recog
of
Act invests
properly
7
Section
the
The Board has
collectively
bargain
right
right
employee’s
with the
to union
nized
an
representatives.4
through
apply
their
chosen
deal
representation
to all
does not
provide
8(a)(5)
8(a)(1)
may
and
ings
employer
Sections
which
even
with his
respect
employer’s
refusal
ultimately
tually
an
the terms
affect
labor
right
an unfair
employment.9
constitutes
In
this
and conditions
investiga-
charge
Brennan’s,
Inc.,
1966) ;
2.
was
366
Alston
NLRB v.
it,
apparently
but
(5th
conducted
and
NLRB
F.2d
Superintendent
Ass’n.,
Fore-
Pall and
District
Milk Producers
v. Central Okla.
present
(10th
were also
man Witcher
interview.
Board con-
It
is noted that while
He
a union member.
Alaniz
interview
November 17
was
cluded that
was, however,
part
part
simply
a unit
em-
an
“was
bargaining
ployees
recognized
alleged
whose
and decided
into some
theft”
4-367,
agent
and
Company
was Local
Chemical
deal with
undertook
“affecting
International Union.
Atomic Workers
matters
Alaniz
employment,”
terms
and conditions
(1964).
4. 20 U.S.C.
§
nevertheless,
Board,
elsewhere
(1)
(5)
(1964).
158(a)
5. 20
&
§
U.S.C.
opinion, stated:
its
158(d)
(1964)
(emphasis
6. 29
§
U.S.C.
Company
under-
controller's office
The
added).
investigate
and
matter
took to
meeting
scheduled a
Co.,
Mfg.
v. Walton
See NLRB
[Emphasis
added.]
7 L.Ed.2d
U.S.
S.Ct.
Corp.
(1962) ;
Ford,
Inc.,
Universal
Camera
9. See
Jacobe-Pearson
474, 487-88,
(1968) ;
71 S.Ct.
340 U.S.
Oil
Chevron
N.L.R.B. No. 84
(1951) ;
L.Ed. 456
NLRB v.
Co.,
Each
No. 84
N.L.R.B.
Brennan’s,
(5th
Inc.,
by
For herein reasons order is
forcement denied. REHEARING FOR PETITION
ON REHEAR- FOR PETITION AND BANC EN
ING
PER CURIAM: *5 denied is The Petition Judge panel nor this no member on the Court regular service active polled
having requested the Court be banc, (Rule rehearing 35 Federal en Procedure; Local Appellate Rules 12) the Petition Fifth Circuit Rule denied. En banc properly discretion an abuse of be declined consider this See, theory con- grant thus additional of violation. motion and the Union’s 287, B„ Respondent’s v. L. R. 395 F.2d Cutler N. action whether sider 2317, (C.A.2, 1968) representa- LRRM refusing a union to allow and cases cited. present at the to be tive Moreover, Trial Examiner made a unilateral amounted to following determination which was not change condition in an established disturbed the Board: reason, and, employment for that agreed [H]e [General Counsel] 8(a) Section violative of my correctly statement I under- was act Counsel It is clear General position stood his that a “de- authority. scope within parture prior joint practice from NLRB, Wellington Mill Division v. investigation is not an element 1964) ; (4th 579, Cir. Cutler F.2d allegation 8(a) of violation of Section (2d NLRB, 287, 289 Cir. v. 395 F.2d (5).” Plainly, counsel for the Union 1968) ; Elec. International Union seeking scope broaden NLRB, Workers v. Radio and Machine complaint and to include therein (D.C.Cir. F.2d allegation which, previously though Corp. NLRB, 280 Aircraft v. Piasecki urged by for the Union 1960). (3d appeal F.2d Regional from the Director’s originally complaint, refusal issue Fabricators, Engineers Inc. v. & See adopted by was not the General Coun- (5th NLRB, issuing complaint, sel 1967). hearing, response or in his to the Un- Wellington posthearing ion’s Mill Division In See motion. these cir- (4th persuaded cumstances I am 330 F.2d