260 F2d 746 Cross Company v. National Labor Relations Board

260 F.2d 746

The CROSS COMPANY, Appellant,
v.
NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 13459.

United States Court of Appeals Sixth Circuit.

October 23, 1958.

H. William Butler, of Clark, Klein, Brucker & Waples, Detroit, Mich., for petitioner.

Thomas J. McDermott, Washington, D. C., and Jerome H. Brooks, Detroit, Mich., for respondent.

Before ALLEN, Chief Judge, MARTIN, Circuit Judge, and THORNTON, District Judge.

PER CURIAM.

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1

This cause came on to be heard on petition of The Cross Company for review of an order of the National Labor Relations Board, which petitioner avers should be set aside.

2

The case involves the single issue of whether or not the board erred in reaching the same conclusion as did the trial examiner — that the petitioner discharged its employee, Ziolkowski, because of his union activity.

3

The decision of the National Labor Relations Board rested on a two-to-one vote. After consideration of the record and the briefs and oral arguments of the attorneys in the case, the report of the trial examiner and the majority and minority opinions of the board, we are in accord with the dissenting opinion of Member Rogers. We agree with his statements that, when Ziolkowski was discharged, the union had already lost the plant election of a bargaining agent; that Ziolkowski's role in the union effort, which he supported, had been minor; and that he had not been an organizer. As pointed out by the dissenting board member, Rogers, the most serious expression of any anti-union sentiment chargeable to The Cross Company was directed, not against Ziolkowski, but against another employee, Szymanski, an apparent union organizer who was not discharged.

4

No violation of section 8(a)(2) of the National Labor Relations Act, 29 U.S. C.A. § 158(a) (2), on the part of The Cross Company is alleged or found to have been done. Upon the record as a whole, we agree with Member Rogers that the burden of showing that The Cross Company discharged Ziolkowski because of his support of the union has not been carried.

5

Accordingly, the order of the National Labor Relations Board is set aside; and the complaint filed August 15, 1956, is dismissed.