NLRB v. Allure Shoe Corporation

Decision Date14 April 1960
Docket NumberNo. 17968.,17968.
Citation277 F.2d 231
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALLURE SHOE CORPORATION, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Margaret M. Farmer, Thomas J. McDermott, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, Melvin Pollack, Atty., Washington, D. C., for National Labor Relations Board.

Joseph A. Perkins, Marchant & Perkins, Miami, Fla., for respondent.

Before HUTCHESON, TUTTLE and JONES, Circuit Judges.

HUTCHESON, Circuit Judge.

In its decision and order,1 approving and adopting, except in two particulars, the findings, conclusions and recommendations contained in the examiner's intermediate report, the Board directed the respondent to cease and desist from the unfair labor practices and to take the affirmative action therein set forth.

Here seeking enforcement of its order, the Board insists that its findings and order find full support in the evidence, while respondent resists the enforcement of the order on two grounds. The first is that the order is without jurisdictional basis because respondent's activities are too insignificant in their effect on interstate commerce to bring them within the meaning and intent of the Labor Management Act, as amended, 29 U.S.C.A. § 141 et seq. The second is that there is insufficient evidence to warrant the findings and order.

Though respondent has argued the first ground long and earnestly, we think it must be said of it that, whatever might be thought of the validity of its arguments, if considered abstractly or if the question were a new one, it must be categorically stated of them that in the present state of the law they are so completely foreclosed as to be without substance.

In 1937, in the early beginnings of the enforcement of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., this court, in N. L. R. B. v. Bell Oil Co., 5 Cir., 91 F.2d 509, carefully considered and precisely rejected a similar argument. Later, in N. L. R. B. v. Gulf Public Service Co., 5 Cir., 116 F.2d 852 and N. L. R. B. v. Mid-Co Gasoline Co., 5 Cir., 183 F.2d 451, we re-examined and reaffirmed these conclusions. Respondent cites no case to the contrary of the views announced in those decisions, we have found none. Indeed, the cases respondent cites confirm them.

We come, then, to respondent's second ground, that the Board's findings and conclusions as to unfair labor practices and its order based thereon must be rejected because without support in the evidence considered as a whole, to say of it that, while we agree with respondent that, as to the discharge of Elena Rodriguez, the Board's findings must be rejected and the order denied enforcement, we disagree with it and agree with the Board that the order must be otherwise enforced.

In giving our reasons for these views, we pass without determining, because not necessary to the decision of this case, the questions, on which examiner and board differ, whether the giving of the wage increases was or was not a violation of the act.

It is true that respondent does state that it has examined each and every case cited by petitioner and cannot take issue with the authorities cited, and that it is its contention that there is not only no substantial evidence to warrant the findings but virtually no probative evidence at all, that is that it furnishes no reasonable basis for the findings of the Board. We think, however, that in its argument it discusses the testimony, not from the standpoint of whether, on the evidence considered as a whole, examiners and board, as triers of fact, could not reasonably draw the conclusions they drew, but from that of whether the evidence preponderates for or against those conclusions. For, as its criterion for objecting to the...

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5 cases
  • National Labor Relations Board v. Walton Manufacturing Company National Labor Relations Board v. Florida Citrus Canners Cooperative
    • United States
    • U.S. Supreme Court
    • April 9, 1962
    ...Labor Relations Board v. Alco Feed Mills, 133 F.2d 419; National Labor Relations Board v. Ingram, 273 F.2d 670; National Labor Relations Board v. Allure Shoe Corp., 277 F.2d 231; Frosty Morn Meats, Inc., v. National Labor Relations Board, 296 F.2d 617. The Court of Appeals in No. 77, Nation......
  • Great Atlantic and Pacific Tea Co. v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 10, 1966
    ...v. Williamson-Dickie Mfg. Co., 130 F.2d 260; N.L.R.B. v. Alco Feed Mills, 133 F.2d 419; N.L. R.B. v. Ingram, 273 F.2d 670; N.L.R.B. v. Allure Shoe Co., 277 F.2d 231; Frosty Morn Meats, Inc. v. N. L. R. B., 296 F. 2d 617; N.L.R.B. v. Walton Mfg. Co., 286 F.2d 16; N.L.R.B. v. Florida Citrus C......
  • NLRB v. Florida Citrus Canners Cooperative
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 3, 1963
    ...F.2d 260, N. L. R. B. v. Alco Feed Mills, 5th Cir., 133 F.2d 419, N. L. R. B. v. Ingram, 5th Cir., 273 F.2d 670, N. L. R. B. v. Allure Shoe Corporation, 5th Cir., 277 F.2d 231, Frosty Morn Meats, Inc. v. N. L. R. B., 5th Cir., 296 F.2d 617, and the line of cases beginning with N. L. R. B. v......
  • NLRB v. Cosco Products Company, 18117.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 13, 1960
    ...Co., 5 Cir., 238 F.2d 211, 212; N. L. R. B. v. McGahey, supra; N. L. R. B. v. Ray Smith Transit Co., 5 Cir., 193 F.2d 142; N. L. R. B. v. Allure Shoe Co., 277 F.2d 231, and cases cited. Cf. Georgia Pacific Corp. v. United States, 5 Cir., 264 F.2d 161, and cases cited in note As to Tom Gibbo......
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