National Labor Relations Board v. Brown & Root, Inc.

• Citation: 206 F.2d 73
• Decision Date: 08 July 1953
• Docket Number: No. 14680.,14680.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BROWN & ROOT, Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

206 F.2d 73 (1953)

NATIONAL LABOR RELATIONS BOARD v. BROWN & ROOT, Inc., et al.

No. 14680.

United States Court of Appeals Eighth Circuit.

July 8, 1953.

Harvey B. Diamond, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose, Atty., National Labor Relations Board, Washington, D. C., on the brief) for petitioner.

Ben H. Powell, Jr., Austin, Tex. (William A. Brown and Powell, Wirtz & Rauhut, Austin, Tex., on the brief) for respondent Ozark Dam Constructors.

Ben H. Powell, Jr., Austin, Tex. (W. Morgan Hunter, William A. Brown and Powell, Wirtz & Rauhut, Austin, Tex., on the brief), for respondent Flippin Materials Co.

Woll, Glenn & Thatcher, Herbert S. Thatcher, J. Albert Woll, James A. Glenn and Joseph E. Finley, Washington, D. C., amicus curiae for American Federation of Labor, Building & Construction Trades Department, A. F. L., and Fort Smith, Little Rock and Springfield Joint Council, A. F. L.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

In a petition for rehearing the National Labor Relations Board has asked that this Court remand so much of this case as will enable the Board to investigate and determine whether employees of Flippin Materials Co. were unlawfully discriminated against because of their participation in the strike against Ozark Dam Constructors.

In its petition the Board says:

"* * * The Board made no finding with regard to whether there were vacancies for Flippin strikers at the time they applied for reinstatement because, having found that Ozark and Flippin were one employer, it concluded that the Flippin employees were unfair labor practice strikers just as the Ozark employees were. Consequently the Board did not reach the question whether the Flippin employees, although not unfair labor practice strikers, were economic strikers entitled to protection against discrimination for having taken part in the strike. A remand of the cause to the Board, therefore, is appropriate to enable the Board to pass upon the question of the rights of the Flippin employees as economic strikers, a question which neither the Board nor the Court has as yet considered."

The purpose of a petition for rehearing, under the Rules of this Court, is to direct the Court's attention to some material matter of law or fact which it has overlooked in deciding a case, and which, had it been given consideration, would probably have brought about a different result. It is not contended that in deciding this case this Court failed to consider any issue which was before it for review. However, we have had no desire to deny the Board's petition upon technical grounds, and for that reason we invited the parties to file briefs to assist us in deciding whether the petition should be granted or denied.

This controversy has been long drawn out, bitterly contested, and has involved much labor and expense. It has been before this Court twice. National Labor Relations Board v. Ozark Dam Constructors, 8 Cir., 190 F.2d 222; 8 Cir., 203 F.2d 139. The Board throughout the proceedings has been diligent and aggressive in protecting the rights of the employees involved. The controversy must sometime and in some way come to an end.

The issues which the Board now wishes to investigate and determine are highly controversial. Flippin denies that its striking employees, who were comparatively few in number, were economic strikers and insists that their status was not such as to entitle them to any preferential treatment with respect to reinstatement to jobs, if jobs were available. The Board's position in the proceedings culminating in this Court's last decision was that the status of the Flippin strikers was that of unfair labor practice strikers. That contention was controverted by Flippin and decided adversely to the Board by this Court. The Board now seeks to change its position and to explore the question whether, at the time the strike against Ozark was terminated, Flippin had jobs available to which Flippin strikers were preferentially entitled and which were denied to them. There is no assurance that the Board's proposed investigation...