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05/12/69 United Packinghouse, Food v. National Labor

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


May 12, 1969

UNION, AFL-CIO, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT. FARMERS' COOPERATIVE COMPRESS, INTERVENOR. FARMERS'

COOPERATIVE COMPRESS, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT. UNITED

Before PRETTYMAN and DANAHER, Senior Circuit Judges, and WRIGHT, Circuit Judge, in Chambers.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1969.CDC.142

United Packinghouse, Food and Allied Workers International

Packinghouse Workers of America,

AFL-CIO, Intervenor.

Nos. 21,627, 21,825

May 12, 1969.

Order

PER CURIAM: On consideration of petitioner's petition for rehearing in No. 21,825 and intervenor's petition for rehearing in No. 21,627, it is

Ordered by the Court that petitioner's and intervenor's aforesaid petitions are denied.

Separate Statement of Senior Circuit Judge Danaher As To Why He Votes To Deny Rehearing

DANAHER, Sr. C. J.: I vote to deny the petition for rehearing filed by Farmers' Cooperative Compress. I believe the Intervenor-Petitioner has misapprehended the import of the court's opinion and the representations made to us are irrelevant in light of our holding.

We had specifically pointed out on this aspect of the case that the question of refusal by the company to bargain in good faith over racially discriminatory practices involves several elements which cumulatively can culminate in a violation of the Act. For example, has the company developed and practiced a policy of discrimination against its employees? Is that policy, so practiced, "invidious"? Does it reflect discrimination "on account of race or national origin"? In essence "can" that policy and practice constitute a violation of the Act? We did not say that such a violation had here been demonstrated. But if so established, and in the manner and by such means as we have discussed, the employer's policy and practice can violate the Act. That is what we said.

Our remand, in short, called for hearings and a determination as to whether this employer actually had evolved a policy and had put that policy into practice so as to result in invidious "discrimination on account of race or national origin." Such is the inquiry which is to be conducted, and properly in my view, with an ultimate conclusion to depend upon the Board's findings. There may not be, but assuredly there "can" be a violation in the respects under discussion, and that is what our opinion says. I adhere to it.

19690512

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