Local No. 152 v. NLRB
| Decision Date | 28 January 1965 |
| Docket Number | 18734.,No. 18682,18682 |
| Citation | 343 F.2d 307,120 US App. DC 25 |
| Parties | LOCAL NO. 152, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, American Compressed Steel Corporation, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN COMPRESSED STEEL CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. David S. Barr, Washington, D. C., with whom Messrs. David Previant, Milwaukee, Wis., Herbert S. Thatcher, Washington, D. C., and Robert A. Wilson, Cincinnati, Ohio, were on the brief, for petitioner in No. 18682.
Mr. George B. Driesen, Atty., N. L. R. B., of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Stephen B. Goldberg, Atty., N. L. R. B., were on the brief, for respondent in No. 18682 and petitioner in No. 18734.
Mr. Philip J. Kennedy, of the bar of the Supreme Court of Ohio, pro hac vice, by special leave of court, Cincinnati, Ohio, with whom Mr. Philip J. Kennedy, Jr., Cincinnati, Ohio, was on the brief, for respondent in No. 18734.
Mr. Philip J. Kennedy, Jr., Cincinnati, Ohio, entered an appearance for intervenor in No. 18682.
Before BAZELON, Chief Judge, and FAHY and McGOWAN, Circuit Judges.
In No. 18682 the Union petitions this court to review and set aside that part of a decision and order of the Board which dismissed the Board's complaint that the Company, in discharging employee Robert Baker, had violated Sections 8(a)(1) and (3) of the Act. In No. 18734 the Board petitions for enforcement of its decision and order against the Company for violating Section 8(a) (1) and (3) in other respects, and also Section 8(a)(5).
As to the discharge of employee Baker, the following appears:
The Board's complaint alleged:
The Trial Examiner found, inter alia:
The context of this finding and recommendation of the Trial Examiner clearly indicates that the "union activity" referred to was the fact that on the evening before his discharge Baker had signed a union card but that the Company had no knowledge of this.
The General Counsel excepted:
The Board adopted the findings, conclusions and recommendation of the Trial Examiner with respect to Baker.
Thus it is seen that the Board dismissed the complaint based on the discharge of Baker because the evidence did not sufficiently establish that the Company knew Baker had joined the Union. This does not meet the problem, for the issue was not simply whether the company discharged Baker because he had joined the Union. The reason assigned by the Company for the discharge, namely, that Baker had failed to turn off certain valves on his equipment, thus possibly causing a dangerous loss of gas, may have been supported by evidence that the valves were not in fact turned off. But, assuming such support the question remains whether the reason assigned was the sole reason for Baker's discharge, or whether the Company was motivated even in part by what it thought was Baker's knowledge of and favorable attitude toward the Union. The record is replete with evidence from which it could be concluded that Baker was discharged because the Company believed, or feared, he was sympathetic to the Union, though the Company was without knowledge he had signed a union card the evening before the discharge. The Company's hostility to the Union is clear, as is also its concern about Baker's possible sympathy for the Union. The complaint included this theory that the discharge constituted a violation of the Act.
We do not decide, however, that the Board should have found that Baker's discharge was an unfair labor practice. We conclude only that the basis the Board assigned for not so finding does not meet the issue posed by the complaint and by the General Counsel's exception to the Trial Examiner's decision. We accordingly will set aside that part of the order of the Board which dismissed the complaint as to Baker and remand this phase of the case to the Board for its further consideration. See NLRB v. Capital Transit Co., 95 U.S.App.D.C. 310, 313, 221 F.2d 864, 867 (1955).
We agree with the Board in finding that the Company had in numerous respects violated Section 8(a)(1) and (3) of the Act. There is no occasion to go into the details for there is no present dispute regarding these findings. The dispute of the Company with the order of the Board is that it requires the Company to cease and desist from refusing to bargain with the Union as the representative of the employees in the unit described in the order, and in ordering the Company upon request to bargain collectively with the Union as the bargaining representative of the employees. The Company's position is that when it refused to bargain the Union did not represent a majority of...
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