430 F2d 1364 Steves Sash Door Inc v. National Labor Relations Board

430 F.2d 1364

74 L.R.R.M. (BNA) 2765, 75 L.R.R.M. (BNA) 2288,
63 Lab.Cas. P 11,004, 64 Lab.Cas. P 11,193

STEVES SASH & DOOR, INC., Petitioner-Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 28370.

United States Court of Appeals, Fifth Circuit.

July 7, 1970
Rehearing Denied and Rehearing En Banc Denied Sept. 1, 1970.

Theo F. Weiss, Frank S. Manitzas, San Antonio, Tex., for petitioner-cross-respondent; Clemens Knight, Weiss & Spencer, San Antonio, Tex., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Washinton, D.C., Clifford Potter, Director, Region 23, N.L.R.B., Houston, Tex., Eli Nash, Jr., Frank H. Itkin, Washington, D.C., for respondent-cross-petitioner.

Before WISDOM, AINSWORTH, and CLARK, Circuit Judges.


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This is just another case of this Court's being asked to review an NLRB decision that a company violated Section 8(a)(3) and (1) of the National Labor Relations Act by discharging an employee because of her alleged union activities. As usual, there is evidence that the employee was discharged for good cause unrelated to her union activities; there is also evidence that the respondent fired the employee because she was an activist for the union. Whatever result this Court might have reached, had it been the Board, we must say that substantial evidence supports the Board's decision.


We hold also that the Board properly declined to defer to the arbitration procedures provided in the collective bargaining agreement. NLRB v. Walt Disney Productions, 9 Cir. 1945, 146 F.2d 44, 48, cert. denied,324 U.S. 877, 65 S.Ct. 1025, 89 L.Ed. 1429. See also, NLRB v. Acme Industrial Co., 1967, 385 U.S. 432, 436-437, 87 S.Ct. 565, 17 L.Ed.2d 495; NLRB v. Bell Aircraft Corp., 2 Cir., 1953, 206 F.2d 235, 236; NLRB v. Wagner Iron Works, 7 Cir. 1955, 220 F.2d 126, 136-137, cert. denied, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 850; Illinois Ruan Transport Corp. v. NLRB, 8 Cir. 1968, 404 F.2d 274, 280.


The petition for review is denied; the Board's order is enforced in full.





The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.