JA Bentley Lumber Co. v. NLRB, 12837.
| Decision Date | 11 March 1950 |
| Docket Number | No. 12837.,12837. |
| Citation | 180 F.2d 641 |
| Parties | J. A. BENTLEY LUMBER CO. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Fifth Circuit |
LeDoux R. Provosty, Alexandria, La., for petitioner.
Robert Todd McKinlay, Atty., NLRB, Washington, D. C., David P. Findling, Assoc. Gen. Cnsl., NLRB, Washington, D. C., A. Norman Somers, Asst. Gen. Cnsl., NLRB, Washington, D. C., for respondent.
Before HOLMES, WALLER, and RUSSELL, Circuit Judges.
The J. A. Bentley Lumber Company petitions this Court to set aside an order of the National Labor Relations Board which directed it to reinstate and make whole in back pay two employees whom the Board found were illegally discharged and thereafter improperly denied reinstatement, and to cease and desist from specified unfair labor practices. In response the Board asks enforcement of its order.1
The petitioning lumber company assails the Board's order in toto and in material particulars upon the ground that the Board's findings and conclusions are without the support of substantial evidence, on the record considered as a whole, and therefore without basis in law. Petitioner further contends the Board erred in overruling its motion to dismiss the complaint.
We conclude that there are no valid grounds for setting aside the Board's findings and order and, as legally consequent, that the Board's prayer for enforcement of its order should be granted.
The lumber company's motion to dismiss the complaint is not meritorious. There was no showing made that the labor organization was not in compliance with the statute by failure to file financial statement required prior to the institution of the complaint.2 In fact, the only showing now relied upon by the petitioner is a statement from the Board that compliance would be required before complaint was instituted. The charge was filed prior to the amendment to the Act requiring such financial statement. That the charge, alleging illegal discharges in March and April of 1946, and filed August 25, 1946, was dismissed "without prejudice," August 15, 1947 and was reinstated by the Regional Director May 28, 1948 when it was ascertained that the dismissal resulted from an administrative error, the nature of which appears from the record, does not require the complaint's dismissal. Petitioner alleges that it was "lulled into a false sense of security," but fails to show legal prejudice resulting from the reinstatement of the charge. The lapse of two years between the filing of the charge and the filing of the complaint upon which is predicated the petitioner's claim of laches preventing further proceedings, is likewise without merit. Phelps Dodge Corp. v. N. L. R. B., 2 Cir., 113 F.2d 202, affirmed 313 U.S. 177, 200, 61 S.Ct. 845, 85 L. Ed. 1271, 133 A.L.R. 1217.
Upon consideration of the record we conclude that the findings and order of the Board are supported by substantial evidence. While there are conflicts in the testimony, the findings of the Board that these employees were discharged and refused reinstatement because of their refusal to abandon the strike by proceeding to work, is amply supported by the facts and circumstances surrounding the termination of employment of Goodwin and Johnson. There was clearly no quitting by them except in the sense that they refused to work as demanded during the continuance of the strike. Neither this, nor the action of the petitioner in assuming this to be unjustified and thereupon discharging them, as found to be the facts by the Board, effected a legal termination of employment. N. L. R. B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S. Ct. 904, 82 L.Ed. 1281; N. L. R. B. v. Gulf Public Service Co., 5 Cir., 116 F.2d 852, 855. Petitioner's entire case is dependent in substance upon its contention that there was no discharge of the employees but that they quit their employment. With this ruled against it, its case falls. It is true that for economic reasons, and as found by the Board, the petitioner moved its lumber camp and rearranged its trackage, but there is substantial support for the Board's determination that following the termination of the strike the company reinstated each employee for whom it had a need...
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