574 F.2d 891
98 L.R.R.M. (BNA) 3067, 84 Lab.Cas. P 10,715
NATIONAL LABOR RELATIONS BOARD, Petitioner,
The YOUNGSTOWN OSTEOPATHIC HOSPITAL, Respondent.
United States Court of Appeals,
May 2, 1978.
Elliott Moore, Deputy Associate Gen. Counsel, Jay Shanklin, Jon Hayman, N. L. R. B., Washington, D. C., Bernard Levine, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner.
Raymond Fine, The Youngstown Osteopathic Hospital, Youngstown, Ohio, Louis M. Davies, James L. Blomstrom, Youngstown, Ohio, for respondent.
Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
The National Labor Relations Board herein petitions for an order enforcing its order finding the respondent Hospital in violation of Section 8(a)(1) of the National Labor Relations Act by discharging an employee for engaging in a protected activity, and ordering her reinstatement with back pay. The case has been submitted on the record on appeal and on the briefs and oral arguments of counsel for the parties.
The record establishes that the decision to discharge the employee in question had been reached and the appropriate Hospital official had been ordered to advise the employee of that fact, but that prior to the implementation of the order the employee two days later entered into a protected activity. The administrative law judge held that the discharge was for legitimate cause because the employee was behind in her work, but the Board held that the discharge was based upon the engagement in a protected activity. The Court concludes that while the finding of the administrative law judge is sufficiently supported by the record, that record does not contain sufficient probative evidence when considered as a whole to support the finding of the Board, and therefore,
IT IS ORDERED that enforcement of the Board's order be and it hereby is denied.