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§8-53-1 Purpose. (a) As a matter of commitment, policy, and compliance with federal and state laws, the Hawaii state department of education assures that it will provide equal educational opportunity to all students with a disability in its jurisdiction, regardless of the nature and severity of the disabilities.
§8-53-3 Discrimination prohibited. (a) No student with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity operated by the department.
"Day" means calendar day unless otherwise indicated as school day.
"School day" means any day, including a partial day, that students are in attendance at school for instructional purposes. The term has the same meaning for all students in school, including students with and without a disability.
(3) Provided without cost to the student with a disability or the student’s parent, other than costs that are imposed on students without a disability or the students' parents.
"Include" means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.
(iii) Has no interest that would conflict with the interests of the student.
"Related services" means transportation and such developmental, corrective, and other supportive services as are required to meet the individual educational needs of a student with a disability as adequately as students without a disability, and includes speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
"Special education" means specially designed instruction, at no cost to the parents, to meet the unique needs of a student with a disability as adequately as students without a disability.
(2) Notify students with a disability and their parents of the duty of the department under this chapter, including the procedure to initiate a referral.
(b) The department shall establish identification procedures, that include a systematic method of utilizing referrals from teachers, parents, agencies, professional persons and members of the public, to identify students suspected of having a disability under chapter 8-56 or suspected of having a disability under this chapter.
(c) Identification and referral procedures under this chapter to determine if a student has a disability shall not be construed to limit those school site activities designed to address learning difficulties ingeneral, including the consideration and utilization of the resources of the regular education program.
(3) Receive a written notice of the department’s proposal or refusal to evaluate under chapter 8-56, including an explanation of the distinctions between an evaluation and determination of eligibility under chapter 8-56 and this chapter.
(c) If a student initially referred for an evaluation under chapter 8-56 is suspected of being eligible as a student with a disability under this chapter, the parent shall receive notice in accordance with subsection (b)(1) as soon as possible.
(2) The nature and extent of the regular or special education and related aids and services that the student needs to meet the student’s educational needs as adequately as the needs of students without a disability are met.
(B) Participate, as appropriate, in the general curriculum (i.e., the same curriculum as for students without a disability).
(c) The group described in subsection (a) may conduct its review without a meeting.
(d) The department shall administer tests and other assessment materials as may be needed to produce the data identified under subsection (b).
(2) Of the right of the parent to request an assessment to determine whether, for purposes of services under this chapter, the student continues to be a student with a disability.
(f) The department is not required to conduct the assessment described in subsection (e)(2) to determine whether, the student continues to be a student with a disability unless requested to do so by the student’s parent.
§8-53-11 Reevaluation. (a) The department shall ensure that a reevaluation of each student, in accordance with section 8-53-9 on the determination of needed assessment data and section 8-53-10 on assessment is conducted if conditions warrant a reevaluation, including prior to a significant change in placement, or if the student’s parent or teacher requests a reevaluation, but at least once every three years.
"Major life activity" means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(B) For students in the age ranges three to five and eighteen to twenty, those students with a disability who are also eligible as students with a disability in accordance with chapter 8-56-15.
(b) For a student with a disability eligible under subsection (a)(1)(B) or subsection (a)(1)(C) as having only a record of or being regarded as having a disability, the department shall not be required to identify, evaluate or provide a free appropriate public education in accordance with this chapter. The student shall be protected against discrimination on the basis of the perceived disability as set forth in section 8-53-3.
§8-53-14 Exclusions. (a) For purposes of this chapter, a student with a disability shall not include an individual excluded under Section 504 (29 U.S.C. Section 705), including a student who is currently engaging in the illegal use of drugs, when the department acts on the basis of such use.
(3) Is erroneously regarded as engaging in such use, but is not engaging in such use.
§8-53-16 Parent participation. (a) The department shall take steps to ensure that one or both of the parents of a student with a disability are afforded the opportunity to participate in developing, reviewing and revising the student’s Section 504 modification plan, including contacting the parent to inform the parent of the opportunity to participate in developing, reviewing and revising the student’s Section 504 modification plan early enough to ensure that the parent will have an opportunity to participate.
(3) Schedule the meeting at a mutually agreed upon time and place.
(2) Copies of correspondence sent to the parent and any responses received.
(d) If neither parent can attend a meeting conducted pursuant to section 8-53-17(c), the department shall use other methods to ensure parent participation, including individual or conference telephone calls.
(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.
(f) The department shall take whatever action is necessary to ensure that the parent understands the proceedings at a meeting, including arranging for an interpreter for a parent with deafness or whose native language is other than English.
§8-53-17 Section 504 modification plan meetings and timelines. (a) As used in this section, the phrase "within a reasonable period of time" means within 60 days, except when exceptional circumstances cause a delay.
(c) If one or more of the Section 504 team members believe a meeting is necessary for the purpose of developing, reviewing and revising the Section 504 modification plan of a student with a disability, the department shall initiate and conduct the meeting.
(2) If determined eligible under section 8-53-13, a free appropriate public education is made available to the student in accordance with a Section 504 modification plan.
(e) The Section 504 modification plan shall be reviewed periodically as conditions warrant, but not less than annually.
(3) Informing the parent of the date for a free appropriate public education being made available to the student in accordance with a Section 504 modification plan.
(g) A copy of the written notice required in subsection (f) shall be maintained in the student’s educational records.
(2) The results of the initial or most recent evaluation of the student.
(3) The projected date for the beginning of the services and the anticipated frequency, location, and duration of those services.
(2) Place a student with a disability in the regular educational environment unless it is demonstrated by the department that the education including special education if necessary, of the student with a disability in the regular educational environment with the use of supplementary aids and services cannot be achieved satisfactorily.
(c) Whenever the department places a student with a disability in a setting other than the regular educational environment pursuant to subsection (b), the department shall take into account the proximity of the alternate setting to the student's home.
§8-53-20 Nonacademic and extracurricular services. (a) The department shall provide nonacademic and extracurricular services and activities in such a manner as is necessary to afford students with a disability an equal opportunity to participate in such services and activities.
(4) The placement of the student with a disability is made as soon as possible after the development of the Section 504 modification plan.
(2) Refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.
(3) Upon receipt of a request for due process under section 8-53-27.
(2) The initial provision of special education or related services to a student with a disability.
(b) Consent for initial evaluation under subsection (a)(1) may not be construed as consent for initial placement under subsection (a)(2).
(4) Administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.
(d) If a parent revokes consent, the revocation of consent shall be effective on the date the department receives notice of the revocation, and does not negate an action that occurred after consent was given, but before receipt of the notice of revocation.
§8-53-26 Mediation. (a) Parties to disputes are encouraged to seek resolution through mediation. The mediation process is intended to be an informal process conducted in a nonadversarial atmosphere to resolve issues relating to the identification, evaluation, or educational placement of a student with a disability or the provision of a free appropriate public education to the student. (b) The department shall offer mediation to parties to disputes involving any matter described in section 8-53-23(a) to allow the parties to resolve the disputes whenever a hearing is requested under sections 8-53-27 or 8-53-39.
(3) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(d) A party’s participation in a mediation conference shall not be a prerequisite to the right to a due process hearing under sections 8-53-27 or 8-53-39.
(e) Each session in the mediation process shall include the party or party representative with the authority to resolve the issues which are the basis for the request for a hearing under sections 8-53-27 or 8-53-39. (f) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
(3) Be set forth in a written mediation agreement.
(h) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process shall be required to sign a confidentiality pledge prior to the commencement of the process.
(i) If the mediation process fails to resolve the issue or issues to the satisfaction of the parties, the mediator may assist the party requesting the hearing to identify the precise issue or issues to be heard in the due process hearing and the relief the party is seeking.
(3) Select the mediator on a random (e.g., a rotation) basis from the list described in paragraph (1).
§8-53-27 Impartial due process hearing. (a) A parent or the department may initiate a hearing on any of the matters described in section 8-53-23(a)(relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the student).
(b) The department shall inform the parent of any free or low-cost legal and other relevant services available in the area.
(C) The selection process for the impartial hearing officer and contact information.
§8-53-28 Notice of request for a hearing. (a) All requests for a due process hearing shall be filed in writing with the district superintendent of the student’s district of enrollment. The party initiating a due process hearing shall provide the other party to the hearing with a copy of the request at the same time as the request is filed with the district superintendent.
(5) A proposed resolution of the problem except, for the parent, the proposed resolution to the extent known and available to the parent at the time.
(c) The department shall provide a model form, upon request, to the parent to assist the parent in filing a request for a due process hearing that includes the information required in subsection (b).
(2) By any person having a personal or professional interest that would conflict with the person’s objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under subsection (a) is not an employee of the department solely because the person is paid by the department to serve as the hearing officer.
§8-53-30 Pre-hearing and hearing. (a) The hearing officer shall conduct a pre-hearing conference. The hearing officer may conduct all or part of the pre-hearing conference by telephone if both parties or party representatives have an opportunity to participate in and to hear the entire proceeding while it is taking place. The pre-hearing conference shall include the identification of the precise issues to be heard under section 8-53-27(a).
(b) Hearings conducted pursuant to section 8-53-27 shall not be conducted according to the technical rules of evidence and those related to witnesses. All testimony shall be under oath or affirmation which the hearing officer is empowered to administer.
(3) Obtain a written or electronic verbatim record of the hearing; and(4) Obtain written findings of fact and decision.
(d) Prior to a hearing conducted pursuant to section 8-53-27, each party shall disclose to all other parties all evidence that the party intends to introduce at the hearing within a reasonable period of time prior to the hearing.
(e) A hearing officer may bar any party that fails to comply with subsection (d) from introducing the relevant evidence at the hearing without the consent of the other party.
(2) Open the hearing to the public; and.
(b) A hearing officer may grant for good cause specific extensions of time beyond the period set out in subsection (a) at the request of either party. Any extension shall be documented in writing and extend the time for rendering a final decision for a period only equal to the length of the extension.
§8-53-32 Civil action. (a) A decision made in a hearing conducted pursuant to sections 8-53-27 or 8-53-39 is final, except that any party involved in such hearing may appeal such decision under subsection (b).
§8-53-33 Student’s status during proceedings. (a) Except as provided in section 8-53-39(g) on discipline, during the pendency of any administrative or judicial proceeding regarding a complaint under section 8-53-27, unless the department and the parent of the student agree otherwise, the student involved in the complaint shall remain in the current educational placement.
(3) The student is a ward of the State under the laws of the State.
(1) Is not an employee of the department, or any other agency that is involved in the education or care of the student, except that an individual who is an employee of a private agency that only provides non-educational care for the student and who meets the standards in this subsection may be selected;(2) Has no interest that conflicts with the interest of the student the surrogate parent represents; and(3) Has knowledge and skills that ensure adequate representation of the student.
(c) A person who otherwise qualifies to be a surrogate parent under subsection (b) is not an employee of the agency solely because the person is paid by the agency to serve as a surrogate parent.
§8-53-35 General requirements. (a) The following general requirements apply in disciplinary action that results in or could result in the removal of a student with a disability from the student’s current educational placement.
(1) Is not considered a change in placement and subject to the requirements of this subchapter or sections 8-53-11 and 8-53-21.
(2) Shall be in accordance with chapter 8-19.
(2) A change in placement of a student with a disability to an appropriate interim alternative educational setting, if authorized under Section 504. The interim alternative educational setting shall be determined by the Section 504 team.
(B) Is in accordance with the procedural safeguards in sections 8-53-22 to 8-53-34 and includes the provision of a prior written notice to the parent of the student with a disability under section 8-53-23 of the proposed or refused change of placement and the parent does not request a hearing pursuant to section 8-53-27(a); and(C) Provides a free appropriate public education to the student; or(5) The basis for a crisis suspension pursuant to chapter 8-19 exists, and school personnel determine that the crisis suspension, together with the previous days of suspension and disciplinary removal, does not subject the student with a disability to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals one to another.
(2) Immediately, if possible, but in no case later than ten school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the student’s disability and the behavior subject to the disciplinary action.
(b) If a student with a disability is suspended or removed for disciplinary reasons from the student’s current educational placement for ten consecutive days or fewer at a time or for each series of short-term suspensions for ten cumulative school days or fewer in a given school year, the review in subsection (a) need not be conducted.
(c) The review described in subsection (a) shall be conducted by the Section 504 team as set forth in section 8-53-15 and other qualified personnel in a meeting.
(C) The student’s disability did not impair the ability of the student to control the behavior subject to disciplinary action.
(e) If the Section 504 team and other qualified personnel determine that any of the standards in subsection (d)(2) were not met, the behavior shall be considered a manifestation of the student’s disability.
§8-53-39 Expedited due process hearing. (a) If the student’s parent disagrees with a determination that the student’s behavior was not a manifestation of the student’s disability or with any decision regarding placement under this subchapter, the parent may request a hearing pursuant to section 8-53-27.
result in injury to the student or others, the department may request a hearing pursuant to section 8-53-27 to seek an order to change the placement of a student with a disability to an interim alternative educational setting, if authorized under Section 504.
(c) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the department has demonstrated that the student's behavior was not a manifestation of the student's disability consistent with the requirements of section 8-53-37(e).
(4) Be conducted by a hearing officer who satisfies the requirements of section 8-53-29.
(e) The department shall be responsible for the conduct of an expedited due process hearing. The timeline under subsection (d)(3) shall be the same for hearings requested by parents or the department.
(f) A decision made in a hearing conducted pursuant to this section is final, except that any party involved in such hearing may appeal such decision under section 8-53-32.
§8-53-40 Protections for students not yet eligible for services under Section 504 and this chapter. (a) A student who has not been determined to be eligible under this chapter and who has engaged in behavior that violated any rule or code of conduct of the department may assert any of the protections provided for in this chapter if the department had knowledge that the studentwas a student with a disability before the behavior that precipitated the disciplinary action occurred.
(b) If the department did not have knowledge that a student is a student with a disability prior to taking disciplinary measures against the student, the student may be subjected to the same disciplinary measures as measures applied to students without a disability who engaged in comparable behaviors consistent with subsection (c).
(c) If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures under sections 8-53-36, the evaluation shall be conducted in an expedited manner except as required in section 8-19-11 on substitute educational services.

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Justia › US Law › US Case Law › US Supreme Court › Volume 337 › Labor Board v. Crompton-Highland Mills, Inc.
1. An employer producing goods for interstate commerce engaged in extensive negotiations as to many matters, including rates of pay, with a union duly certified as the collective bargaining representative of most of its production and maintenance employees at a certain plant. It offered a small wage increase, which was rejected, and the negotiations reached something of an impasse. Twelve days later, the employer, without consulting the union, put into effect a substantially greater general wage increase applicable to most of the employees represented in the negotiations.
Held: In these circumstances, this action constituted an unfair labor practice within the meaning of §§ 8 and 9 of the National Labor Relations Act. Pp. 337 U. S. 218-219, 337 U. S. 223-225.
2. After hearings, the National Labor Relations Board made certain findings of fact and ordered the employer not only to cease and desist from granting general wage increases without consulting the union, but also to bargain collectively, upon request, as to rates of pay, hours of work, and other conditions of employment, to post certain notices, and to report steps taken to comply with the order. Its petition for enforcement was denied by the Court of Appeals.
(a) A decree should be entered enforcing so much of the Board's order as is supported by its findings of fact based upon substantial evidence. Pp. 337 U. S. 218-219, 337 U. S. 220-221.
(b) On the record in this case, the Board was justified in issuing an order requiring the employer to cease and desist from refusing to bargain collectively by taking action, without prior consultation with the authorized collective bargaining representative of the employees, with respect to general rates of pay which are substantially different from, or greater than, any which the employer has proposed during its negotiations with such representative. P. 337 U. S. 225.
is no reason for enlarging the scope of the enforcement decree beyond that feature, and little, if any, need for orders requiring either specific affirmative action to be taken by the employer or the posting of any notices by it. Pp. 337 U. S. 226-227.
The National Labor Relations Board issued an order requiring an employer to cease and desist from certain unfair labor practices and to take certain affirmative actions. 70 N.L.R.B. 206. The Court of Appeals denied a petition for enforcement. 167 F.2d 662. This Court granted certiorari. 335 U.S. 812. Reversed, p. 337 U. S. 227.
was substantially greater one than any which the employer had offered during the negotiations. For the reasons to be stated, we hold that, under the circumstances, this action constituted an unfair labor practice, and that a decree should be entered enforcing an order prohibiting such conduct. The case also raises questions as to the nature of the impasse which was reached and as to the proper scope and terms of the enforcement decree.
August 13, 1945, the Textile Workers Union of America, Congress of Industrial Organizations, following an election under the statute, was certified as the exclusive collective bargaining representative for about 800 employees of Crompton-Highland Mills, respondent herein. These employees included most of its production and maintenance employees at Griffin, Georgia, where it manufactured cotton and other goods. Much of the material entering into those goods and most of the finished goods there produced were bought, sold, or transported in interstate commerce, so that the unfair labor practice, if any, concededly affected such commerce. From August 31, 1945, at least until December 19, a committee of this union engaged in collective bargaining with the respondent on numerous appropriate subjects, including rates of pay. Many tentative agreements were reached.
January 1, 1946, without prior consultation with any member of the bargaining committee, the employer announced a general and substantial increase in the rates of pay of its employees, amounting to about two to six cents an hour, effective as of December 31, 1945. This increase applied to most, but not all, of the employees in the bargaining unit. Simultaneously with its posting of the announcement of this increase, the employer told the employee members of the bargaining committee about it. At the same time, the employer mailed an announcement of it to one of the two nonemployee members of the bargaining committee.
January 31, 1946, the National Labor Relations Board, petitioner herein, in response to charges made by the union, filed a complaint against the employer, alleging several unfair labor practices. [Footnote 2] These included the above-described increase in rates of pay. After hearings before a trial examiner and consideration of that examiner's intermediate report, the employer's exceptions and brief relating to that report, and the entire record and oral arguments, the Board, on August 21, 1946, issued a cease and desist order. 70 N.L.R.B. 206. The Court of Appeals for the Fifth Circuit denied a petition for enforcement. 167 F.2d 662. Because of the importance of the issue in the administration of the labor relations statutes, we granted certiorari. 335 U.S. 812.
that there is substantial evidence to support the material findings of fact made by the Board as to the issue before us, and therefore see no need to set forth that evidence here. The primary issue for discussion is, rather, the extent to which the Board's findings of fact support its cease and desist order and justify a decree for the enforcement of that order.
with the principle of collective bargaining. Nor are we impressed with the respondent's attempted justification for its action on the ground that the Union broke off negotiations on December 19, and that the respondent was therefore relieved of the obligation to deal with it. Concededly, the respondent never proposed to the Union as a possible basis of agreement a wage increase comparable to that granted on January 1, 1946. Moreover, the record fails to support the respondent's contention that the Union's representatives assumed an unequivocal position at the last meeting which foreclosed further bargaining concerning wages or other terms or conditions of employment. Under these circumstances, we find, as did the Trial Examiner, that the respondent, by its action with respect to the wage increase, failed to perform its statutory duty to bargain collectively with the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act."
I. The employer engaged in an unfair labor practice when, without consulting the employees' collective bargaining representative, it put into effect, for most of its employees who had been represented in the bargaining negotiations, a general increase in rates of pay which was substantially greater than any that the employer had offered.
be consulted and to bargain collectively as to the terms of any general wage increase is established by the findings and the negotiations. Cf. Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 306 U. S. 297. We do not have here a case where the bargaining had come to a complete termination cutting off the outstanding invitation of the certified collective bargaining representative to bargain as to any new issue on such a matter as rates of pay. Cf. Labor Board v. Sands Mfg. Co., 306 U. S. 332. The opening which a raise in pay makes for the correction of existing inequities among employees and for the possible substitution of shorter hours, vacations or sick leaves, in lieu of some part of the proposed increase in pay, suggests the infinite opportunities for bargaining that are inherent in an announced readiness of an employer to increase generally the pay of its employees. The occasion is so appropriate for collective bargaining that it is difficult to infer an intent to cut off the opportunity for bargaining and yet be consistent with the purposes of the National Labor Relations Act.
might be welcomed by the bargaining representative, without prejudice to the rest of the negotiations. See In the Matter of W. W. Cross & Co., 77 N.L.R.B. 1162; In the Matter of Exposition Cotton Mills Co., 76 N.L.R.B. 1289; In the Matter of Southern Prison Co., 46 N.L.R.B. 1268.
"the respondent [employer] was not acting in good faith during the negotiations, and is manifestly inconsistent with the principle of collective bargaining."
II. The decree of enforcement should not extend further than necessary to prevent the taking of the prohibited action by the employer.
"Under these circumstances, we find, as did the Trial Examiner, that the respondent, by its action with respect to the wage increase, failed to perform its statutory duty to bargain collectively with the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act."
(Emphasis supplied.) 70 N.L.R.B. at 207.
For these reasons, the judgment is reversed and the cause is remanded to the Court of Appeals for action consistent with this opinion.
MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR. JUSTICE RUTLEDGE join in Part I of this opinion, but think the Board's order should be enforced without modification.
§ 9 of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C. (1940 Ed.) § 159; In the Matter of Crompton-Highland Mills, 62 N.L.R.B. 1346.
Under §§ 7, 8(1) and (5), and 10 of the National Labor Relations Act, 49 Stat. 452-455, 29 U.S.C. (1940 Ed.) §§ 157, 158(1) and (5), and 160.
For the Board's order, see Appendix A. infra pp. 337 U. S. 227-229.
"The findings of the Board as to the facts, if supported by evidence, shall be conclusive." § 10(e) of the National Labor Relations Act, 49 Stat. 454, 29 U.S.C. (1940 Ed.) § 160(e).
§ 10(e), as amended by the Labor Management Relations Act.1947, 61 Stat. 148, 29 U.S.C. (1946 Ed., Supp. I) § 160(e).
"We have repeatedly held that Congress, by providing, § 10(c), (e) and (f), of the National Labor Relations Act, that the Board's findings 'as to the facts, if supported by evidence, shall be conclusive,' precludes the courts from weighing evidence in reviewing the Board's orders, and, if the findings of the Board are supported by evidence, the courts are not free to set them aside, even though the Board could have drawn different inferences."
Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105, 316 U. S. 106-107.
See also Medo Photo Supply Corp. v. Labor Board, 321 U. S. 678, 321 U. S. 681, note 1; Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 305 U. S. 229; Washington, Virginia & Maryland Coach Co. v. Labor Board, 301 U. S. 142, 301 U. S. 146-147.
In addition to its own findings, quoted in the text, the Board adopted, in general terms, all of the findings of the trial examiner, with certain modifications and exceptions not here material. A number of such adopted findings, which are of significance in securing a full appreciation of the basis for the Board's order, are set forth in Appendix B, infra, pp. 337 U. S. 230-234.
"Q. Mr. Pickford, explain why you made the wage increase on January 1, 1946. -- A. We had heard the end of the previous week that numerous mills throughout the state had made wage adjustments, and we heard through rumor, more or less through the grapevine, that local mills were planning to make wage adjustments. I checked into that rumor with various mills and found that wage adjustments were going to be made, although I didn't get any specific dates as to when they would be made."
"We had steadfastly said throughout our bargaining conferences that if and when wage increases in our area were made, we would be amongst the first, as we had always been, to make such increases. And when we heard that wage increases were to take place, we wanted to maintain our position as being amongst the first to make the increase, and also maintain our position in the local labor market by making an increase ourselves."
"Q. Do you know, Mr. Pickford, what wage increases were made by any of the other mills in Griffin? -- A. I do not know the definite figures, aside from what I saw in the paper."
"Q. Did you join with any mills in making any announcement about a wage increase? -- A. No; we did not. We made our announcement independently of anyone else, as we have always done."
49 Stat. 452-453, and also in 61 Stat. 140-141, 29 U.S.C. (1946 Ed., Supp. I) § 158.
49 Stat. 453, and also in 61 Stat. 143, 29 U.S.C. (1946 Ed., Supp. I) § 159(a).
Even though the employer, since January 1, 1946, may have carried on collective bargaining in good faith as to rates of pay and other matters, a decree enforcing the original order against making a general increase without consulting the collective bargaining representatives is justifiable.
". . . [A]n order of the character made by the Board, lawful when made, does not become moot because it is obeyed, or because changing circumstances indicate that the need for it may be less than when made."
Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 303 U. S. 271. See also Federal Trade Commission v. Goodyear Tire & Rubber Co., 304 U. S. 257.
". . . The breadth of the order, like the injunction of a court, must depend upon the circumstances of each case, the purpose being to prevent violations, the threat of which in the future is indicated because of their similarity or relation to those unlawful acts which the Board has found to have been committed by the employer in the past. . . . We hold only that the National Labor Relations Act does not give the Board an authority, which courts cannot rightly exercise, to enjoin violations of all the provisions of the statute merely because the violation of one has been found. To justify an order restraining other violations, it must appear that they bear some resemblance to that which the employer has committed or that danger of their commission in the future is to be anticipated from the course of his conduct in the past. That justification is lacking here."
Labor Board v. Express Pub. Co., 312 U. S. 426, 312 U. S. 436-437, and see pp. 312 U. S. 438-439.
See also May Dept. Stores Co. v. Labor Board, 326 U. S. 376, 326 U. S. 392-393; J. I. Case Co. v. Labor Board, 321 U. S. 332, 321 U. S. 341-342.
Order of National Labor Relations Board In the Matter of Crompton-Highland Mills, Inc., and Textile Workers Union of America, CIO, Case No. 10-C1812. -- Decided August 21, 1946.
"Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Crompton-Highland Mills, Inc., Griffin, Georgia, and its officers, agents, successors, and assigns, shall: "
"1. Cease and desist from: "
fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, by taking action, without prior consultation with said organization, with respect to rates of pay, wages, hours of employment, and other conditions of employment."
"(b) In any manner interfering with the efforts of Textile Workers Union of America, CIO, to bargain collectively with it as the representative of its employees in the appropriate unit described above."
"2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: "
"(a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment;"
"(b) Post at its plant at Griffin, Georgia, copies of the notice attached hereto, marked 'Appendix A.' Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material;"
"(c) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith."
"Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that:"
"We will bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment."
"We will not make any changes with respect to rates of pay, wages, hours of employment, or other conditions of employment of our employees in the bargaining unit described below, without prior consultation with Textile Workers Union of America, CIO."
"We will not in any manner interfere with the efforts of Textile Workers Union of America, CIO, as the exclusive representative of our employees in the unit described below, to bargain collectively with us."
"The bargaining unit is: all production and maintenance employees at our Griffin plant, including watchmen, but excluding office, clerical, technical and laboratory employees, section men in the spinning room, head loom fixers in the weave room, head fixers in the card room, all supervisory employees of the grade of second hand and above, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action."
"This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material."
Quotations from the "FINDINGS OF FACT" as to -- "III. THE UNFAIR LABOR PRACTICES, A. The refusal to bargain," as stated in the Intermediate Report of the Trial Examiner, adopted by the National Labor Relations Board and printed by the Board following its Decision and Order.
"No further conference was held until December 19, when a meeting was held at the request of the Union."
"The issues upon which the parties were still in disagreement at this time involved wages, work assignments, insurance provisions, severance pay, vacations, union security, arbitration, union activity upon company time, and the preamble of the contract, in which the respondent sought to define the parties to the agreement as the respondent and the 'employees' in the appropriate unit, as opposed to the Union's position that the Union be denominated as party to the contract. On the issue of union security, although the Union had offered to compromise for maintenance of membership, the respondent refused to grant any form of security. As to wages, although it had originally rejected the Union's proposals for any wage increase, it proposed what amounted to an increase of about one or one and one-half cents per hour at this time."
"On January 1, 1946, the members of the union negotiation committee, employed at the plant, were summoned to the office of Plant Manager Pickford and informed that the respondent was granting a general wage increase to all employees, amounting to about 2 to 6 cents per hour."
" As will be seen, certain employees were not included in the wage increase. "
"Pickford read to the committee the following letter under that date, addressed to Union Director Douty: "
" In the course of our extended contract negotiations, we have repeatedly told you that our mill would be among the first to make wage adjustments in this locality. We have learned that certain of the mills in this locality are about to adjust their wages, and we are therefore making comparable adjustments in our wage rates effective Monday, December 31st, 1945. A copy of the notice which has been posted in the mill today outlining the various rate adjustments is attached hereto."
"Attached to the letter were notices directed to the respective departments listing the various wage increases. The letter was received by Douty the next day. While the negotiating committee was in Pickford's office, copies of the notices announcing the wage increases were being posted on the bulletin boards in the respective departments."
"It will be seen from the foregoing that neither the Union nor the negotiating committee was consulted from December 19, the date of the last conference, to January 1, 1946, the date of the granting of the wage increase. Nor was the committee consulted on the latter date. The respondent merely presented it with a fait accompli, without affording the Union an opportunity to negotiate with respect to the amount of the increase, the employees to whom the increase would be applicable, the effective date of the increase or any of the factors normally envisaged by the collective bargaining process."
" The increase did not affect janitors, sweepers, scrubbers, outside help, and various other categories of employees included in the unit represented by the Union. "
"It cannot be disputed, nor does the respondent deny, that the granting of the wage increase at that time, constituted unilateral action. . . ."
"While it is evident that the Union was insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent's position that the Union had, in effect, presented an ultimatum that no contract would be consummated which did not afford union security. As has already been indicated, union security was only one of several matters, aside from the wage question, upon which agreement had not yet been reached. If, as the respondent contends, it had left no doubt as to its position on the issue of union security in the conferences of October 17 and 18, and it was convinced that the Union was adamant on this issue, it seems unlikely that the parties would have conferred on November 7 and 8, and again on December 19, when the Union submitted a written wage proposal."
"It is clear, therefore, and the undersigned finds, that, although the parties had reached a temporary impasse on December 19 on some issues, principally wages, union security, and check-off, there is no substantial basis for concluding that the Union had abandoned negotiations at this time. Moreover, even if the parties had reached an impasse in their negotiations, this obviously could not affect the Union's status as majority representative. The principle that"
"a bargaining relationship, once rightly established, must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed"
"is well established. Equally clear is the proposition that the granting of a unilateral wage increase"
" See Franks Bros. Co. v. NLRB, 321 U. S. 702, 321 U. S. 705. "
"or other concession by an employer to his employees while the designated union is attempting to bargain concerning the same subject matter, constitutes a violation of the employer's duty to bargain with the union. It is not a question, contrary to the respondent's argument, of giving the Union credit for a wage increase which it did not obtain, but rather of the conduct of the respondent in granting the increase in derogation of the Union's status as statutory representative, by depriving the Union of its right to bargain with respect to such increase."
" See Aluminum Ore Company v. NLRB, 131 F.2d 485, 487, enforcing 39 N.L.R.B. 1286, 1295-1299; May Department Stores v. NLRB, 326 U. S. 376. See also Majority Rule in Collective Bargaining, by Ruth Weyand, Columbia Law Review, Vol. XLV, 579-583, and footnotes at 581, for an excellent discussion and citation of authority on The Power of a Statutory Representative to Bar Unilateral Changes by Employer."
"Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and further finds that, by failing and refusing to furnish the Union with essential and pertinent information relating to the respondent's wage structure under its 'point plan,' job specifications, work assignments, and information appertaining thereto, and by granting its employees a unilateral wage increase on January 1, 1946, the respondent has, from August 31, 1945, to December 19, 1945, and thereafter to date, including January 1, 1946, failed and refused to bargain with the Union as the exclusive collective bargaining representative of the employees in the appropriate unit above described, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under the Act."
(Emphasis in this paragraph is supplied.) 70 N.L.R.B. at 220-221, 222, 223-224.
"1. The Trial Examiner found that the respondent, in violation of Section 8(1) and (5) of the Act, failed to bargain collectively with the Union as the statutory representative of the respondent's employees by refusing to furnish the Union with certain detailed information relating to the incentive wage plan and by granting a wage increase to its employees without consulting the Union. Although we agree with the Trial Examiner's conclusion, we, however, rest our determination solely on the latter ground."
(Emphasis supplied.) 70 N.L.R.B. at 206.


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Epp, Frank. The Palestinians. Portrait of a People in Conflict. Scottsdale. Presidio. 1976. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Epstein, Jerry. Remembering Charlie. A Pictorial Biography. Chaplin. New York. Doubleday. 1989. 4to. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Epstein, Joseph. Snobbery. The American Version. Boston. Houghton, Mifflin and Company. 2002. 373 pps. Octavo. Hardcover. First edition. Fine copy in near fine (light edge chipping) dust jacket (in mylar).
Erdoes, Richard. AD 1000. Living on the Brink of Apocalypse. New York. Harper & Row. 1988. Octavo. Hard cover. First edition. Fine copy (owner blind stamp) in fine dust jacket (in mylar).
Erickson, Carolly. Great Catherine. New York. Crown Pub. 1994. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Erickson, Carolly. Royal Panoply. Brief Lives of The English Monarchs. New York. History Book Club. 2003. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Erickson, Carolly. To the Scaffold. The Life of Marie Antoinette. New York. William Morrow & Co. 1991. Octavo. Hardcover. First edition. Fine copy in fine dust jacket (in mylar).
Erickson, Yvonne et al. Fair Oaks Cemetery. Fair Oaks, California. Index to Burials. 1903-1981. Sacramento. Root Cellar. nd. 4to. Spiral bound. First edition. Fine copy.
Erwin, Milo. Williamson County, Illinois. County History. Photo available. Marion. Williamson County Historical Society.  1976. 286 pps. + index. Octavo. Hardcover. Facsimile edition. Important reference work. Fine copy.
Esch, Cora et al. St. Michael's Parish Centennial. 1886 - 1986. Spalding, Nebraska. Photo available. Spaulding. Self published. c. 1986. 335 pps. 4to. Decorated hard cover. First edition. Illustrated. Important reference work. Fine copy.
Esoe, Gabe. DeMille: The Man and His Pictures. New York. Castle. 1979. Octavo. Hard cover. Illustrated. Fine copy in very good (chip on rear panel) dust jacket (in mylar).
Esposito, Richard. Bomb Squad. A Year Inside the Nation's Most Exclusive Police Unit. New York. Hyperion. 2007. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Espy, Willard R. Thou Improper, Thou Uncommon Noun. An Etymology of Worlds That Once Were Names. Photo available. New York. Clarkson N. Potter. 1978. Octavo. Hard cover. Second edition. Illustrated. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Espy, Willard. Thou Improper, Thou Uncommon Noun. An Etymology of Words That Once Were Names. New York. Clarkson N. Potter. 1978. Octavo. Hardcover. Second edition. Illustrated. Fine copy in fine dust jacket (in mylar).

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[227 U.S. 657, 658] Messrs. Joseph M. Bryson, Cecil H. smith, and Alex. S. Coke for plaintiff in error.
[227 U.S. 657, 662] Messrs. William M. Williams and J. A. L. Wolfe for defendant in error.
This was an action in a state court of Texas by a shipper of cattle, under a special live-stock transportation contract for a shipment from a point in Missouri to a point in Oklahoma, to recover the value of cattle killed by a negligent derailment occurring in the former state. The shipment consisted of four bulls and thirteen cows, claimed to have been very valuable 'show cattle.' They were all killed, and plaintiffs recovered their full value, $10,640, and this judgment was affirmed by the court below.
As the transaction was an interstate shipment, the case comes here upon questions which involved the validity of certain provisions in the contract of shipment when tested by the 20th section of the act to regulate commerce [24 Stat. at L. 386, chap. 104], as amended by the act of June 29, 1906 [34 Stat. at L. 593, chap. 3591, 7 U. S. Comp. Stat. Supp. 1911, p. 1304].
Aside from the question of negligence, which we assume to be closed by the verdict and judgment in the state court, the defenses pressed here are, first, that the limitation of value in case of loss or damage to $30 for each bull and $20 for each cow was a valid declaration of the valuation upon which the rate was based; and, second, that the action was not brought within ninety days after damages sustained, both being stipulations found in the shipping contract.
The title at the head of the contract is,- [227 U.S. 657, 665] RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE STOCK.
'Ordinary live stock transported under this special contract is accepted and hauled at rate named below at owner's risk, as per conditions herein set forth, with the distinct understanding that said rate is a special rate, which is hereby agreed to, accepted, and understood to be at less than published tariff rate applying thereon when transported at carrier's risk.
Missouri, Kansas, & Texas Railway Co.
Indian territory Missouri or Kansas Missouri or Kansas And stations in Oklahoma territory Indiana territory Oklahoma territory And locally between stations in the Indiana or Oklahoma territories. Rates in Cents Per 100 lbs. Cattle. (See Rule 3.) Distance. Commodities. 380 miles and over 370. . . . Carloads. 26 1/2 Rule 3. Live stock-Continued. Limitation of liability.-Rates provided on live stock will apply only on shipments made at owner's risk, with limitation of liability on the part of the railroad company as common carrier under the terms and conditions of the current live stock contract provided by this company, the contract to be first duly executed in manner and form provided therein.
'The contract for shipment in this case contains, among other things, a stipulation that suit for any damages growing out of this shipment must be commenced within ninety days. You are instructed that such stipulation is void and not binding upon the plaintiffs herein.
This charge was approved upon appeal and the judgment affirmed. The ground upon which the charge in respect to the limitation of recovery in case of loss was based was, first, that every such contract, where the loss was due to negligence, was null and void under the law and public policy of the state; and, second, that it was a contract of exemption forbidden by the Hepburn act of June 29, 1906, being the Carmack amendment of the [227 U.S. 657, 668] 20th section of the general act to regulate commerce of February 4, 1887.
That the shipper had the choice of two rates, one 20 per cent higher than the other, upon this shipment, is shown by the provisions of the shipping contract and the tariff sheets referred to therein. That the difference between the two rates was not unreasonable, the one when the cattle were not valued and the other when their value was declared, is to be assumed from the acceptance of the rates as filed with the Commission. That the 'portion' of the rate sheets in evidence does not include the 'Current Live Stock Contract' referred to in the part filed is of no vital significance. The objection was not made below. The case was proceeded with in the state court upon the hypothesis that the 'Current Live Stock Contract,' referred to in the 'portion' of the rate sheets actually in evidence, was the live stock contract executed by the parties, and had been duly filed as part of the rate sheets. It is too late to make an objection here which, if made below, might have been remedied by filing all instead of a 'portion' of the filed tariff. Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U.S. 426 , 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075. In any event, the rate sheets do provide for a choice between two rates, one with and one without a declared valuation. In one case the carrier is liable for whatever loss or damage the shipper sustains, and in the other its liability is limited to the valuation upon which the rate was based. The ground upon which the shipper is limited to the valuation declared is that of estoppel, and presupposes the valuation to be one made for the purpose of applying the lower of two rates based upon the value of the cattle. This whole matter has been so fully considered in Adams Exp. Co. v. Croninger, 226 U.S. 491 , ante, 148, 33 Sup. Ct. Rep. 148, and Kansas City Southern R. Co. v. Carl, just decided [ 227 U.S. 639 , 57 L. ed. --, 33 Sup. Ct. Rep. 391], that we only need to refer to the opinions in those cases, without further elaboration.
That the trial court and the court of civil appeals [227 U.S. 657, 669] erred in holding this stipulation null and void because forbidden by either the law or policy of the state of Texas, or by the 20th section of the act of June 29, 1906, is no longer an open question since the decisions of this court in the cases just referred to.
Nor is there anything upon the face of this contract, when read in connection with the rate sheets referred to therein (of which the defendants in error were compelled to take notice, not only because referred to in the contract signed by them, but because they had been lawfully filed and published), which offends against the provisions of the 20th section of the act of June 29, 1906.
Neither is the valuation of cattle at $30 and $20 per head subject to impeachment as upon its face arbitrary and unreasonable. The valuation in this case was made by the consignor himself. The contract upon this point reads, 'And said shipper represents and agrees that his said live stock . . . do not exceed in value these prices,' referring to the schedule set out immediately above that declaration. That the cattle were not other than average or ordinary cattle, of no peculiar value as 'show cattle,' or otherwise, is indicated by the character of the printed form of contract signed by the consignor. After reciting that the company had two rates on live stock, it proceeds,-'Ordinary live stock transported under this special contract,' etc.
It is not unreasonable, for the purpose of graduating freight according to value, to divide the particular subject of transportation into two classes: those above and those below a fixed maximum amount. No other method is practicable; and this is a method administratively approved by the Commerce Commission.
That the value of the cattle shipped under this valuation did greatly exceed the valuation therein represented may [227 U.S. 657, 671] be true. It only serves to show that the shipper obtained a lower rate than he was lawfully entitled to have by a misrepresentation. It is neither just nor equitable that he shall benefit by the lower rate, and then recover for a value which he said did not exist, in order to obtain that rate. Having obtained a rate based upon the declared value, he is concluded, and there is no room for parol evidence to show otherwise. Hart v. Pennsylvania R. Co. and Kansas City Southern R. Co. v. Carl, supra.
When the carrier graduates its rates by value, and has filed its tariffs showing two rates applicable to a particular commodity or class of articles, based upon a difference in valuation, the shipper must take notice, for the valuation automatically determines which of the rates is the lawful rate. If he knowingly declares an undervaluation for the purpose of obtaining the lower of two published rates, he thereby obtains an advantage and causes a discrimination forbidden and made unlawful by the 1st section of the Elkins act of February 19, 1903 [32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1911, p. 1309]. Texas & P. R. Co. v. Mugg, 202 U.S. 242 , 50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Chicago & A. R. Co. v. Kirby, 225 U.S. 155 , 56 L. ed. 1033, 32 Sup. Ct. Rep. 648. The particular cattle were loaded by the shipper and were never seen by the company's agent. Neither was it claimed that he was informed of the value or quality of the cattle to be shipped. We see no ground upon which this contract can be held upon its face to have offended against the statute.
The court below held that the stipulation in the shipping contract, that no suit shall be brought after the lapse of ninety days from the happening of any loss or damage, 'any statute or limitation to the contrary notwithstanding,' was void.
It is conceded that there are statutes in Missouri, the state of the making of the contract, and the state in which the loss and damage occurred, and in Texas, the state of the forum, which declare contracts invalid which require the bringing of an action for a carrier's liability [227 U.S. 657, 672] in less than the statutory period, and that this action, though started after the lapse of the time fixed by the contract, was brought within the statuory period of both states.
The liability sought to be enforced is the 'liability' of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn act of June 29, 1906. The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a Federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or legislation. Adams Exp. Co. v. Croninger, 226 U.S. 491 , 57 L. ed . --, 33 Sup. Ct. Rep. 148; Michigan C. R. Co. v. Vreeland, 227 U.S. 59 , 57 L. ed. --, 33 Sup. Ct. Rep. 192. The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence. Adams Exp. Co. v. Croninger, and Michigan C. R. Co. v. Vreeland, cited above; York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Southern Exp. Co. v. Caldwell, 21 Wall. 264, 267, 22 L. ed. 556, 558; Hart v. Pennsylvania R. Co. 112 U.S. 331 , 28 L. ed. 717, 5 Sup. Ct. Rep. 151.
The policy of statutes of limitation is to encourage promptness in the bringing of actions, that the parties shall not suffer by loss of evidence from death or disappearance of witnesses, destruction of documents, or failure of memory. But there is nothing in the policy or object of such statutes which forbids the parties to an agreement to provide a shorter period, provided the time is not unreasonably short. That is a question of law for the determination of the court. Such stipulations have been sustained in insurance policies. Riddlesbarger v. Hartford F. [227 U.S. 657, 673] Ins. Co. 7 Wall. 386, 19 L. ed. 257. A stipulation that an express company should not be held liable unless claim was made within ninety days after a loss was held good in Southern Exp. Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556. Such limitations in bills of lading are very customary and have been upheld in a multitude of cases. We cite a few: Central Vermont R. Co. v. Soper (C. C. A. 1st C.) 8 C. C. A. 341, 21 U. S. App. 24, 59 Fed. 879; Ginn v. Ogdensburg Transit Co. (C. C. A. 7th C.) 29 C. C. A. 521, 57 U. S. App. 403, 85 Fed. 985; Cox v. Central Vermont R. Co. 170 Mass. 129, 49 N. E. 97; North British & Mercantile Ins. Co. v. Central Vermont R. Co. 9 App. Div. 4, 40 N. Y. Supp. 1113, affirmed in 158 N. Y. 726, 53 N. E. 1128. Before the Texas and Missouri statutes forbidding such special contracts, short limitations in bills of lading were held to be valid and enforceable. McCarty v. Gulf, C. & S. F. R. Co. 79 Tex. 33, 15 S. W. 164; Thompson v. Chicago & A. R. Co. 22 Mo. App. 321. See cases to same effect cited in 6 Cyc. p. 508. The provision requiring suit to be brought within ninety days is not unreasonable.
For the errors indicated, the judgment must be reversed for such further proceedings as may be consistent with this opinion.
Mr. Justice Hughes concurs in the result. Mr. Justice Pitney dissents.
[ Footnote 1 ] Chapter 3591, 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1304).

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Interactive Video and Data Service (IVDS) – 47 CFR § 95.803 (Segments: A (218.0 to 218.5 MHz) and B (218.5 to 219.0 MHz)).
Local Multipoint Distribution Service (LMDS) – 47 CFR § 101.1007 (27.5 to 31.3 GHz: Blocks A-B).
Specialized Mobile Radio (SMR) 900 MHz – 47 CFR § 90.661 (896 to 901 MHz and 935 to 940 MHz: Channel Blocks A-T).
931 MHz Paging – 47 CFR § 22.531 (Channels AA-BK: 931.0125 to 931.9875 MHz).
700 MHz – 47 CFR § 27.6 (746 to 764 and 776 to 794 MHz: Blocks A-D).
Wireless Communications Service (WCS) – 47 CFR § 27.6 (Unpaired Channel Blocks C (2315-2320 MHz) and D (2345-2350 MHz)).
VHF Public Coast Stations 47 CFR § 80.371(c)(1)(B).
Narrowband PCS – 47 CFR § 24.102 (901 to 902 MHz, 930 to 931 MHz and 940 to 941 MHz: Channels 1 to 11).
Site-based licenses. In the past, the FCC issued licenses for certain services such as AMTS based on a specific location of the transmitter. The licensee had exclusive use within a certain radius. Most spectrum with site-based licenses has since been auctioned on the basis of geographic areas, with carve-outs for the prior site-based licenses who were grandfathered.


text:
DeFouw faced 3 batters in the 4th.
J. Reinebold singled to left field.
Deane singled to center field.
Deane advanced to second on a balk.
B. Campbell singled to center field.
V. Alteri doubled down the lf line.
V. Alteri advanced to third on a wild pitch.
R. Cherry singled through the left side, RBI; V. Alteri scored.
J. Reinebold singled up the middle.
B. Campbell singled to shortstop, advanced to second on a throwing error by ss.
A. Mesaros tripled to right center, RBI; B. Campbell scored.
V. Alteri singled through the right side, RBI; A. Mesaros scored.
C. Smith to p for DeFouw.
Z. Winzer singled through the right side, RBI; V. Alteri scored.
Carter advanced to second on a balk.
Liriano advanced to second on a wild pitch; Carter advanced to third.
Ferrara flied out to rf, SF, RBI; Liriano advanced to third; Carter scored.
A. Mesaros singled to left center.
DiGirolamo singled to left field.
R. Cherry singled up the middle.
J. Sithong singled up the middle, RBI; R. Cherry scored.
B. Kane to p for J. Munoz.
Carter homered to left center, RBI.
Ferrara singled through the left side.
Hoagland pinch hit for Perez.
Cuevas pinch hit for Dorio.
Solodkin to c for Breun.
Lombardi to p for C. Smith.
A. Hunt to p for B. Kane.
Solodkin singled to left center.
V. Alteri reached on an error by ss.
J. Sithong singled to center field, RBI; V. Alteri scored, unearned.
Q. Heck to p for A. Hunt.
S. Lucy to rf for J. Sithong.
B. Campbell singled to right center.
J. Kelly Jr. to p for Q. Heck.
E. Smith pinch hit for Hoagland.
Cuevas singled through the right side.
Cuevas advanced to second on a wild pitch.
Adams singled to center field, RBI, advanced to second on the throw; Cuevas scored.
Kopko pinch ran for Adams.
Solodkin walked; Kopko stole third.
DiGirolamo flied out to cf, SF, RBI; Kopko scored.
Deane singled to left field, advanced to third on a fielding error by lf; Solodkin scored, unearned.
Carter singled to third base, RBI; Deane scored, unearned.
Benson to 1b for Kopko.
R. Cherry singled to third base.
J. Kelly pinch ran for R. Cherry.
Olcese to p for Lombardi.
J. McCann to c for J. Kelly.
Ferrara singled to left field.
Benson walked; Cuevas advanced to second; Ferrara advanced to third.
K. Heimbrock to p for J. Kelly Jr..
Solodkin lined out to rf, SF, RBI; Ferrara scored.

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As you can see from our list of Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, religious liberty, and freedom of speech on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.
I write you today regarding a policy maintained by several institutions within the State University of New York (SUNY) system that unconstitutionally restricts the free speech rights of SUNY students. This systemwide policy prohibits "bias incidents," defined as "acts of bigotry, harassment or intimidation directed at a member or group … based on national origin, ethnicity, race, age, religion, gender, sexual orientation, disability, veteran status, color, creed or marital status." This policy prohibits speech protected by the First Amendment—speech that SUNY institutions, as public universities, are legally bound to protect. Revising this policy would not only satisfy the constitutional obligations of SUNY institutions, but would also demonstrate to campus constituents, alumni, and the general public that the SUNY system honors and protects freedom of expression.
In addition to preventing and prosecuting hate/bias crimes, New York State University Police, staff in the Division of Student Affairs, the University Ombudsman and the Affirmative Action Office assist in addressing bias-related activities that do not rise to the level of a crime. These activities, referred to as bias incidents and defined by the University as acts of bigotry, harassment or intimidation directed at a member or group within the Binghamton University community based on national origin, ethnicity, race, age, religion, gender, sexual orientation, disability, veteran status, color, creed or marital status, may be addressed through the State University of New York’s Discrimination Complaint Procedure or the Code of Student Conduct. Bias incidents may be reported to University Police or to staff as noted above.
This policy—like its counterparts at the other SUNY institutions—violates the free speech rights of students in several respects.
First, the policy is impermissibly vague, as it fails to define in any way what might constitute an "act of bigotry" based on another’s personal characteristics. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Because the term "bigotry" is not self-defining or self-limiting, students are left to guess at the type of speech or expressive activity their institution may find to be "bigoted" for purposes of this policy. After all, speech that is considered by one person to be bigoted may be perfectly acceptable—even tame or innocuous—to another. Furthermore, as a result of this vagueness, the policy vests nearly unbridled discretion in the hands of administrators charged with applying it, opening the door to selective enforcement and viewpoint-based discrimination against disfavored speech.
Second, the policy is unconstitutionally overbroad on its face. A statute or law regulating speech is unconstitutionally overbroad "if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate." Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Much speech that may be characterized as "bigotry" is nevertheless entitled to constitutional protection. This includes, for instance, deeply held or sharply expressed views on such contentious issues as affirmative action, illegal immigration, gender wage gaps, religious opposition to the practice of abortion, and much more. Surely the SUNY system does not wish to shut down such vital discussion on its campuses, particularly political and social debate over the issues of the day, which lie at the core of the First Amendment’s protections. As the Supreme Court has counseled, "speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted).
Indeed, the Supreme Court has made clear that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). This guiding principle extends to the public college campus. The Court declared inPapish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973) (internal citations omitted), that "the mere dissemination of ideas—no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Under these and other controlling precedents, it is clear that this policy prohibits protected student expression, rendering it overbroad on its face.
In addition, the policy prohibits "acts of … harassment" but fails to define the term "harassment" in any way. Yet student-on-student (or peer) harassment in the educational setting has a precise legal definition as set forth by the Supreme Court, and only a policy meeting that standard is permissible at a public university. This exacting, speech-protective standard requires the conduct in question to be (1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected class, such as race, (4) targeted at an individual, and (5) "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit" to constitute actionable harassment. Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). By definition, this includes only extreme and usually repetitive behavior, directed at the victim, so serious that it would prevent a reasonable person from receiving his or her education.
As the Supreme Court’s lone decision to date regarding the substantive standard for peer harassment, Davis is controlling on this matter. Moreover, the Davis standard provides a simple solution to the problem of unconstitutional harassment policies: it maximally protects student speech rights while also addressing schools’ legal obligation to prevent actual harassment of students.
Twice in recent years, the United States Court of Appeals for the Third Circuit has struck down, on First Amendment grounds, universities’ harassment policies for failing to meet the Davis standard.See McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating harassment policy prohibiting "any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person"); DeJohn v. Temple University, 537 F.3d 301, 318 (3d Cir. 2008) (striking down sexual harassment policy that "provide[d] no shelter for core protected speech"). While the state of New York is of course not in the Third Circuit’s jurisdiction and the McCauley and DeJohn opinions are thus not binding on the SUNY system, the Third Circuit’s holdings in both cases are relevant when considering the constitutionality of the policy in question, which is similarly likely to fail to pass constitutional muster. In light of the DeJohn and McCauley decisions—both recent decisions by a federal appellate court—all public colleges and universities should be on notice that any policy governing peer harassment must meet the Davis standard in order to be in compliance with the First Amendment.
Lastly, the systemwide policy prohibits "acts of … intimidation" but fails to define this term at all. Like peer harassment, "intimidation" has a precise legal meaning in the realm of the First Amendment, and a policy that merely bans "intimidation" without providing any guidance regarding the prohibition is untenable at a public university. In Virginia v. Black, 538 U.S. 343, 359-360 (2003), the Supreme Court held that "true threats," as an exception to the First Amendment, "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," and that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Unless student conduct rises to this level, it cannot be sanctioned as "intimidation." In particular, an individual’s subjective sense of feeling "intimidated" should not suffice under this policy. Thus, the term’s inclusion in the systemwide policy, without any explanation or illustration, contributes to the policy’s defects of vagueness and overbreadth.
Again, let me remind you that the SUNY schools are public universities bound by the First Amendment, and thus must abide by the Supreme Court’s free speech rulings. The Court has long held that public universities occupy a special place in our nation’s First Amendment jurisprudence and that "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Healy v. James, 408 U.S. 169, 180 (1972).
FIRE asks that the SUNY system revise its member institutions’ policies on "bias incidents" to make them consistent with the requirements of the First Amendment and, to prevent campus speech from being impermissibly chilled, that you clarify to students and administrators that protected expression may never and will never be investigated or punished at the SUNY institutions. We ask for a response by March 26, 2012.
Thank you for your attention and sensitivity to these important concerns. I look forward to hearing from you. Of course, FIRE stands ready to assist you with the necessary policy revisions.

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Purpose.Acceptance post-repair testsof electric traction machinesare conducted onloading-backstandsthat reducethe overall power costsfor the tests.Currentlya numberof possiblecircuit designs of loading-backsystems of electric machines are known, but there is nomethod of determiningtheir energy efficiency. This in turn makes difficult the choiceof rationaloptions. The purpose of the article is the development of the corresponding methodo-logy to make easier this process. Methodology. Expressions for determining theenergy efficiency ofa stand for testingof electric traction machineswere obtained using the generalizedscheme analysisof energy transformationsin the loading-backsystems of universal structure. Findings.Thetechnique wasoffered and the analytical expressions for determining the energy efficiency of loading-backsystemsof electric traction machines wereobtained. Energy efficiency coefficientofloading-backsystemisproposed to consider as the ratio of the total actionenergy of the mechanical and electromotive forces, providing anchors rotation and flowof currents in electric machines, which are being tested,to the total energy, consumed during the test from the external network. Originality. The concept was introduced and the analytical determination method of the energy efficiency of loading-backsystem in electric traction machines was offered. It differs by efficiency availability of power sources and converters, as well as energy efficiency factors of indirect methods of loss compensation. Practical value. The proposed technique of energy efficiency estimation of a loading-backsystemcan be used in solving the problem of rational options choice of schematics stands decisions for electric traction machines acceptance tests of main line and industrial transport.
Afanasov А.М. Energeticheskiye pokazateli mekhanicheskogo sposoba kompensatsii elektricheskikh poter v tyagovykh elektrodvigatelyakh pri ikh vzaimnoy nagruzke [Energy indicators of compensation mechanical method of electric losses in traction motors at their mutual load]. Visnyk Dnipropetrovskoho natsionalnoho universytetu zaliznychnoho transportu imeni akademika V. Lazariana [Bulletin of Dnipropetrovsk National University of Railway Transport named after Academician V. Lazaryan], 2010, issue 35, pp. 69-73.
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