*1 872 judgment support quality her Fu- initial unless it is work, tion of of in the (Examiner’s p. by Opinion, evidence.” Universal favor. “substantial mero’s 21.) Corp. NLRB, the Camera v. The examiner concluded that 340 U.S. 71 by (1951). The

treatment received Fumero a S.Ct. 95 L.Ed. 456 was management to the choice is one of humiliate and Board’s scheme conflicting quit- her two alternatives and that evi harass her so as to force into ting support (Id. job. 24.) and exist her The dence inferences to at examiner rejected rejected employer’s the is not sufficient contention that the choice refusing employee simply enforce the was determined to perform unsatisfactory her an ment. NLRB v. Certain-Teed Products duties Corp., 1968); (5th retaliation, allegedly, her F.2d 639 manner in 387 Cir. Inc., (5th disappointment Camco, NLRB v. F.2d 125 the result 369 at of the elec- 1966).1 Cir. tion. The examiner’s recommendation by the ratified Board. hinges here matter credi significant bility choices, Respondent’s decision before this be ing acceptance the trial examiner’s court supported of is Board’s order is not testimony Fumero’s downgrading as true and substantial his evidence and is clearly Young’s so of Yoshida’s and erroneous that enforcement testimony “embellished”, rejecting respond- as must be denied. “self-contra dictory” position, ordering “exaggerated”; enforcement, or ent’s and and because candor,” rely we principles Pinas showed a “lack of fundamental etc. On us, appellate review. the record before we are not so om niscient this decision declare Clearly, if the facts are as unsupported N substantial evidence. found, respondent’s conduct, examiner Inc., Waycross Sportswear, LRB F. v. 391 reprisal activities, for Fumero’s union NLRB, (5th 1968); 2d 294 v. Cir. Nabors 8(a) constitutes a violation of section 1963). (5th F.2d 686 Cir. 323 Equipment NLRB v. Monroe Auto is, therefore, Board’s order enforced. Co., (5th 1968). F.2d 392 559 Cir. An employer constructively cannot do what prohibits doing directly, act his Platers, NLRB v. Vacuum Inc., F.2d (7th 1967), causing Cir. and work ing conditions to become intolerable as a terminating employment

means of for Appellant, JACKSON, Calvin Winston bidden conduct. NLRB v. Tennessee v. Packers, Inc., Frosty Div., Morn NELSON, Warden, Louis S. Lieutenant (5th 1964). Cir. Roger Quen- and Powell Mr. of San Respondent dispute does not the valid- Prison, Appellees. tin ity principles, of these but insists that findings this court should set aside the totally the examiner and Board as Ninth Circuit. without merit. Concededly, it is within our power determinations, such Big Boy, NLRB Inc., v. Elias Bros. (6th 1964), F.2d 421 Cir. is not

an casually (Fed.R. we undertake 52(a)),

Civ.P. since we must 1. We do not credibility read (p. McGowan United run-of-the-mill choice” States, (5 1961) 255). 296 F.2d 252 Cir. The first factor was an erroneous contrary. “assumption” That case was reversed second erroneous * * * necessity.” (Id. p. remanded 255), “based on two “mathematical quite independent any factors such which two factors not here exist. *2 Jackson, appel- for Winston

Calvin lant. Atty. Gen., Lynch, Robert Thomas C. Deputy Utz, Granucci, C. R. Jerome ap- Cal., Francisco, for

Attys. Gen., San pellees. POPE Before Judges.

HAMLEY, Circuit PER CURIAM: moved to dismiss the Defendants rights plaint in this civil amended, complaint, as that the relief fails to a claim state they Alternatively, granted. can be asserting summary judgment, moved complaint frivolous. granted to dis- the motion pass upon complaint not miss the and did ap- Plaintiff motion. the alternative peals. dismissing a

An order dismissing is not final but not the action appealable, under U.S.C. § special circum unless there a court stances which make it clear that could not be determined that the action by any of the com amendment could reasona bly expected to make. Marshall v. Sawyer, 301 F.2d spe

We do not believe that such In cial circumstances exist in this case. dismissing complaint, its order district court was careful to state that “dated June 1967” a dismissed “does because it against cause of action defendants.” Moreover, complaint, examination supplemented, as conclusory reveals series of broad unsupported, for

statements by specific allegations part, the most addition, fact. the individual defend plead ants are referred to in the nowhere action, ings, other title than is, way consequently, and there of de termining defendant, any, is if being charged responsibility with grievance.

particular HENDERSON, Appellant, Edward Louis granted forma leave to America, Jackson UNITED STATES *3 pauperis Appellee. which this is a circumstance demonstrating that may accept as that the ac court determined by any amend tion could be Fifth Circuit. plaintiff ment of the 1968. expected reasonably make. could be Rehearing Pail, 9 Denied Jan. See DeWitt However, in addi 684-685. view the case, present in tional circumstances this unwilling above, we are as described this action conclusively case, establishing, in this that that the court determined amending could not be saved

pleadings. probably

There of as- are number grievances forth in

serted set will be unable to allegations

support with factual suffi- cognizable

cient to state a or claims claim Rights Act, under the Civil Rev.Stat. § 42 U.S.C. § plaintiff may

But there others

possibly able reframe in an amend- in such a fashion de-

feat a motion to dismiss. plaintiff’s There is merit in

argument that the cause should have three-judge

been referred court. pleadings present in their form not level an attack the constitution

ality gen of an administrative application representing eral considered policy. stated,

For reasons may

dismissed. Plaintiff move

district court for leave to file an amended

complaint. Judge (concur- Circuit

ring).

I concur in the above decision because

I believe the district court had not de-

termined that Jackson could not file an- complaint. other amended I realize contrary sub- has stance, I it.