Heights Funeral Home, Inc. v. NLRB, No. 24023.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBELL, COLEMAN and GODBOLD, Circuit
Citation385 F.2d 879
PartiesHEIGHTS FUNERAL HOME, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Decision Date22 November 1967
Docket NumberNo. 24023.

385 F.2d 879 (1967)

HEIGHTS FUNERAL HOME, INC., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24023.

United States Court of Appeals Fifth Circuit.

November 22, 1967.


E. H. Thornton, Jr., Dyche, Wheat, Thornton & Wright, Houston, Tex., for petitioner.

385 F.2d 880

Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles N. Steele, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Allison W. Brown, Jr., Edith Nash, Attys., N.L.R.B., for respondent.

Before BELL, COLEMAN and GODBOLD, Circuit Judges.

COLEMAN, Circuit Judge:

This case is before the Court on the petition of Heights Funeral Home, Inc. for review of an order of the National Labor Relations Board, issued June 20, 1966, finding that the Company violated § 8(a) (1) of the National Labor Relations Act, as amended, by illegally interrogating employees, threatening them with discharge, giving the impression of surveillance, soliciting employees to withdraw from the Union, and by granting employee benefits. The Board cross petitions for enforcement. The decision and order of the Board have been reported and may be found in 159 N.L.R.B. No. 69. Upon a thorough examination of the record we are convinced, without any necessity for prolonged discussion, that the Board findings as to these § 8(a) (1) violations are supported by substantial evidence in the record as a whole and that in these respects the order must be enforced.

In the same proceedings, reported as above, the Board further found that the Company violated § 8(a) (3) and (1) by discharging an employee by the name of Jackson J. Matthews because of his activities on behalf of the Union. The disposition of this portion of the case justifies more elaborate discussion.

The Petitioner and its affiliates own and operate three funeral homes in Houston, Texas. It had 44 employees. In June, 1965, the Union filed its representation petition covering non-supervisory employees of the Heights Funeral Home. The representation hearing began on July 16th and was recessed to August 4th. On that date the Union stipulated that Matthews was a supervisor. On August 6th there was another recess to August 11th. Matthews was discharged the next day. As might have been anticipated, this "put the fat in the fire". On August 9th Matthews filed an unlawful discharge complaint with the Regional Director. When the representation hearings were reconvened on August 11th Matthews' supervisory status became an issue, despite the prior stipulation. The Regional Director held that Matthews, in fact, had not been a supervisor. The Board affirmed this holding and there was no petition for review. In the election held on December 1st the Union lost, 30 to 1, with Matthews not voting.

On January 31, 1966, the hearing began on Matthews' complaint that he had been unlawfully discharged. The employer vigorously sought to relitigate the supervisory status of Matthews and offered evidence in support of its contentions. The Trial Examiner, on the ground that the issue had already been litigated in a related proceeding, refused to permit relitigation, Board Rule 102.67(f).1

Nevertheless, the Trial Examiner recommended that the complaint be dismissed in so far as it alleged a violation of § 8(a) (3). He regarded the reasons given by petitioner for Matthews' discharge as pretextual but concluded that the evidence was insufficient to establish that the termination was unlawfully

385 F.2d 881
motivated. The Board disagreed with this conclusion as follows
"The record reveals that Matthews
...

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9 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...may be binding in a subsequent unfair labor practice proceeding, the recent cases, Heights Funeral Home, Inc. v. NLRB, 5 Cir., 1967, 385 F.2d 879, and Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 1966, 124 U.S. App. D.C. 365, 365 F.2d 898, hold that the issue of "superviso......
  • NLRB v. Union Brothers, Inc., No. 11716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 14, 1968
    ...has not been sanctioned when an unfair labor practice, other than refusal to bargain, is charged. Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879 (5th Cir. 1967); Amalgamated Clothing Workers of America, A. F. L.-C. I. O. v. NLRB, 124 U.S. App.D.C. 365, 365 F.2d 898 (1966). Cf. NLRB v. Sec......
  • Family Service Agency San Francisco v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 15, 1999
    ...Rural Elec., 732 F.2d at 760-61; Rock Hill Tel. Co. v. NLRB, 605 F.2d 139, 143 (4th Cir.1979); Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879, 881-82 (5th Cir.1967). Accord Hyatt Hotels, Inc. v. International Union of Operating Engineers, 256 N.L.R.B. 1099, 1981 WL 20552 (1981) (in refusa......
  • Intermountain Rural Elec. Ass'n v. N.L.R.B., No. 81-1228
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 16, 1984
    ...practice. See also Rock Hill Telephone Co. v. NLRB, 605 F.2d 139 (4th Cir.1979) (same as Dillon ); Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879 (5th Cir.1967) (preventing employer from relitigating supervisory status is error requiring remand); Amalgamated Clothing Workers of America v.......
  • Request a trial to view additional results
9 cases
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...may be binding in a subsequent unfair labor practice proceeding, the recent cases, Heights Funeral Home, Inc. v. NLRB, 5 Cir., 1967, 385 F.2d 879, and Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 1966, 124 U.S. App. D.C. 365, 365 F.2d 898, hold that the issue of "superviso......
  • NLRB v. Union Brothers, Inc., No. 11716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 14, 1968
    ...has not been sanctioned when an unfair labor practice, other than refusal to bargain, is charged. Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879 (5th Cir. 1967); Amalgamated Clothing Workers of America, A. F. L.-C. I. O. v. NLRB, 124 U.S. App.D.C. 365, 365 F.2d 898 (1966). Cf. NLRB v. Sec......
  • Family Service Agency San Francisco v. N.L.R.B., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 15, 1999
    ...Rural Elec., 732 F.2d at 760-61; Rock Hill Tel. Co. v. NLRB, 605 F.2d 139, 143 (4th Cir.1979); Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879, 881-82 (5th Cir.1967). Accord Hyatt Hotels, Inc. v. International Union of Operating Engineers, 256 N.L.R.B. 1099, 1981 WL 20552 (1981) (in refusa......
  • Intermountain Rural Elec. Ass'n v. N.L.R.B., No. 81-1228
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 16, 1984
    ...practice. See also Rock Hill Telephone Co. v. NLRB, 605 F.2d 139 (4th Cir.1979) (same as Dillon ); Heights Funeral Home, Inc. v. NLRB, 385 F.2d 879 (5th Cir.1967) (preventing employer from relitigating supervisory status is error requiring remand); Amalgamated Clothing Workers of America v.......
  • Request a trial to view additional results

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