Town & Country Manufacturing Company v. NLRB

• Decision Date: 29 June 1963
• Docket Number: No. 19679.,19679.
• Citation: 316 F.2d 846
• Parties: TOWN & COUNTRY MANUFACTURING COMPANY, Inc. and Town & Country Sales Company, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

316 F.2d 846 (1963)

TOWN & COUNTRY MANUFACTURING COMPANY, Inc. and Town & Country Sales Company, Inc., Petitioners, v.NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19679.

United States Court of Appeals Fifth Circuit.

April 29, 1963.

Rehearing Denied June 29, 1963.

Kenneth C. McGuiness, Washington, D. C., Theophil C. Kammholz, Washington, D. C., Vedder, Price, Kaufman & Kammholz, Chicago, Ill., of counsel, for petitioners.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, General Counsel, Nancy M. Sherman, Attorney, N. L. R. B., for respondent.

Before HUTCHESON, RIVES and GEWIN, Circuit Judges.

JOSEPH C. HUTCHESON, Jr., Circuit Judge.

This case is before the court upon petition of Town & Country Manufacturing Company, Inc. and Town & Country Sales Company, Inc., herein collectively called the Company or petitioner, to review and set aside an order of the National Labor Relations Board issued against the Company on April 13, 1962, following the usual proceedings under Section 10(c) of the National Labor Relations Act, as amended.

In its answer, the Board has applied for enforcement of its order.The Board's decision and order are reported at 136 NLRB No. 111.

Adopting certain recommendations of the trial examiner to which no exceptions were filed, the Board, one member dissenting, also found certain other conduct to be an independent violation of Sec. 8 (a)(1).In general these findings were that, by termination of its trailer hauling department and contracting its hauling out and the discharge of its union employees without first bargaining with the union on the question of contracting out its work, the company has engaged in conduct violative of Sec. 8(a)(3)(5) and (1) of the Act.

It is with respect to these additional violations that the whole controversy here is waged.The petitioner, relying on National Labor Relations Board v. American National Ins. Co.(5th Cir.)187 F.2d 307, affirmed343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, and on National Labor Relations Board v. Houston Chronicle Publishing Co.(5th Cir.)211 F.2d 848, insists that the dissenting member of the Board was right in his view that the order was beyond the power of the Board to make and the majority of the Board was wrong in insisting that, upon the authority of the cases cited by it, the majority was right.

The Board, earnestly...