344 F2d 948 National Labor Relations Board v. Tennessee Packers Inc Frosty Morn Division

344 F.2d 948


No. 16061.

United States Court of Appeals Sixth Circuit.

May 4, 1965.

Paul J. Spielberg, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Warren M. Davison, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.

George V. Gardner, Washington, D. C., Frederick F. Holroyd, Charleston, W. Va., Gardner, Gandal & Holroyd, Washington, D. C., on brief, for respondent.

Before WEICK, Chief Judge, MILLER, Circuit Judge, and McALLISTER, Senior Circuit Judge.


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The National Labor Relations Board seeks enforcement of its order of February 27, 1964, directing the respondent to cease and desist from certain unfair labor practices found by it to exist on the part of the respondent, to reinstate three of its employees to their former or substantially equivalent positions, and to make them whole for any loss of pay suffered by reason of the respondent's discriminatory conduct. Its brief in support of its petition for enforcement reviews the evidence and authorities in support of its order.


Respondent's brief makes no response on the merits, and relies solely on the contention that the unfair labor practice complaint involved in the case occurred more than six months prior to the filing of the charge with the Board, by reason of which, under Section 10(b) of the Act, Section 160(b), Title 29, United States Code, the Board was barred from issuing the complaint. In support of this contention, the alleged unfair labor practice is analyzed and discussed at some length.


The Board, in response, points out that this objection was not raised before the Board and that under Section 10 (e) of the Act, Section 160(e), Title 29, United States Code, shall not be considered by the Court. We agree with this contention of the Board. N. L. R. B. v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 7 L.Ed.2d 312; N. L. R. B. v. Globe-Wernicke Systems Co., etc., 336 F.2d 589, C.A. 6th.


Since respondent's brief failed to challenge the Board's order on the merits, that issue is considered as having been abandoned and will not be considered by the Court on this review. N. L. R. B. v. Kentucky Utilities Co., 182 F.2d 810, 814, C.A. 6th; Mid-Southern Foundation v. Commissioner of Internal Revenue, 262 F.2d 134, 139, C.A. 6th, cert. denied, 359 U.S. 991, 79 S.Ct. 1120, 3 L.Ed.2d 979; Viles v. Commissioner of Internal Revenue, 233 F.2d 376, 379, C.A. 6th.


Decree of enforcement will be entered.