NLRB v. State Stove Mfg. Co., 18355.

• Decision Date: 25 November 1968
• Docket Number: No. 18355.,18355.
• Citation: 403 F.2d 656
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STATE STOVE & MFG. CO., Inc., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

403 F.2d 656 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STATE STOVE & MFG. CO., Inc., Respondent.

No. 18355.

United States Court of Appeals Sixth Circuit.

November 25, 1968.

David C. Nevins, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Elliott Moore, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.

Wilson Sims, Nashville, Tenn., for respondent.

Before EDWARDS, McCREE, and COMBS, Circuit Judges.

PER CURIAM.

The Board found that the respondent, State Stove & Mfg. Co., Inc., violated Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act by discriminatorily assigning an employee, John Polk, to a difficult job and then discharging him for refusing the assignment. The Board found that this action by the company was prompted by Polk's union activity. The Board's order is reported at 164 N.L.R.B. No. 14. The order directed the company to cease and desist, to reinstate Polk with back pay, and to post appropriate notices. The Board petitions for enforcement.

Polk was hired by State Stove on June 13, 1966. He was assigned various tasks by the company, but most often he placed metal jackets on hot water heaters. His immediate supervisor was Dillon Anderson, a foreman. Polk testified that some time during the first week of July he was assigned to place fiberglas insulation on hot water heaters. After about two hours on this job, he complained to Anderson that his skin was sensitive to fiberglas and that he would not work with it. He offered to quit rather than to continue working with the material; Anderson placed him on another job.

While on his way to work on July 19, Polk encountered a union organizer. After a short conversation, Polk took some union cards to pass out among his fellow workers. Arriving at the plant, he went to the lunchroom and gave cards to several employees. While attempting to give a card to one man, Polk noticed that Foreman Anderson was standing some eight to ten feet away, apparently watching him. Polk hastily put the card away, and Anderson moved on.

Shortly after work commenced on the same day, Anderson approached Polk, who was placing metal jackets on water heaters, and told him to switch to the fiberglas job. According to Polk, another employee regularly had been performing this task and had been given a raise for so doing. Polk refused to work with the fiberglas and was fired.

Anderson's version of the incident is considerably different, but the hearing examiner and the Board chose to credit Polk's testimony. The principle is well-settled, of course, that the responsibility for choosing between conflicting testimony is for the Board. N. L. R. B. v. Tennessee Packers, Inc., 390 F.2d 787 (6th Cir. 1968). The Board's findings of fact must be respected by this Court if supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e) (1964); N. L. R. B. v. Universal Camera Corp., 340 U.S. 474, ...