456 F2d 1286 National Labor Relations Board v. Allied Foods Inc

456 F.2d 1286

80 L.R.R.M. (BNA) 2109, 67 Lab.Cas. P 12,540

ALLIED FOODS, INC., Respondent.

No. 71-3202 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

March 27, 1972.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., for petitioner.

William M. Pate, Atlanta, Ga., for respondent.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.


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The basic issue is whether the National Labor Relations Board properly found that the Company violated Sec. 8(a) (5) and (1) of the Act [29 U.S.C., Sec. 151 et seq.] by refusing to bargain with the Union. The underlying issue, of course, is whether the Board properly certified the Union. The Company challenged the validity of an election which was held on May 7, 1970, after a final operative petition was filed on February 17, 1970 [superseding prior petitions filed January 12 and January 21, subsequently withdrawn before the final filing of February 17]. The complaint was centered on the organizational activities of a supervisor [Towe] which occurred prior to January 14, when he was discharged for assisting the Union, plus the activities of Supervisors Heath and Foster, the significant portion of which occurred in January. There was also a complaint about a ballot change posted two days before the election, caused by the withdrawal of one of the Unions which had been seeking to be chosen as the representative of the employees.


As to these contentions, and others in the record, a careful review convinces us that the summary judgment directing the Company to bargain should be, and it is,




Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I