Before SWYGERT, Chief Judge, STEVENS, Circuit Judge, and CAMPBELL, Senior District Judge*fn*
Per Curiam: This case is before the court upon application of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. §§ 151, et seq .), for enforcement of its order issued on May 1, 1970, against respondents. The Board's decision and order are reported at 182 NLRB 233 (1970).
Respondents assert that the proceedings before the Trial Examiner and the Board were so unfair that they should be set aside. The basis for this argument is the assertion of respondents that the issue of the existence of an illegal oral understanding or arrangement that Tonn & Blank, Inc. would employ only union members was not properly pleaded in the complaint, nor was it revealed in the bill of particulars or otherwise during the course of the proceedings so as to allow respondents to defend against the ultimate finding of the Trial Examiner and the Board. Upon a review of the record as a whole, we agree with the determination of the Board that "the issue of the existence of an unlawful oral understanding or arrangement between the Respondents was fully litigated by the parties at the hearing." 182 NLRB at 233 n. 1. We also find that the decision of the Board is supported by substantial evidence.
The petition for enforcement is granted.
This cause came on to be heard upon the application of the National Labor Relations Board for the enforcement of a certain order issued by it against the Respondent Union, its officers, agents, and representatives and Respondent Employer, its officers, agents, successors, and assigns, on May 1, 1970. The Court heard argument of respective counsel on February 22, 1972, and has considered the briefs and transcript of record filed in this cause. On April 12, 1972, the Court being fully advised in the premises, handed down its decision granting enforcement of the Board's Order.
On consideration whereof, it is hereby ordered and adjudged by the United States Court of Appeals for the Seventh Circuit that the said Order of the National Labor Relations Board in said proceeding be enforced and that Respondent Union, its officers, agents, and representatives and Respondent Employer, its officers, agents, successors, and assigns, abide by and perform the directions of the Board in said Order contained.
It is further ordered that costs shall be taxed against ...