599 F.2d 791
102 L.R.R.M. (BNA) 2161, 87 Lab.Cas. P 11,541
STOUFFER MANAGEMENT FOOD SERVICE, INC., Petitioner,
NATIONAL LABOR RELATIONS BOARD, Respondent.
United States Court of Appeals,
June 19, 1979.
Edward J. Simerka, Gregory P. Szuter, Schwartz, Einhart & Simerka, Cleveland, Ohio, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson, N. L. R. B., Washington, D. C., Sidney Smith, Acting Regional Director, Region 5, N. L. R. B., Baltimore, Md., for respondent.
Before CELEBREZZE, KEITH and MERRITT, Circuit Judges.
Stouffer Management Food Service, Inc., petitions for review and the National Labor Relations Board cross-petitions for enforcement of an order of the NLRB finding petitioner to be in violation of § 8(a)(1) of the National Labor Relations Act. 227 N. L. R. B. No. 163. The NLRB found that petitioner had discharged and suspended certain employees for engaging in protected concerted activity. The main thrust of petitioner's argument in this court is that the employees in question were disciplined because they had been drinking alcoholic beverages on the job and were intoxicated when they should have been working. The NLRB concedes that the drinking took place and that certain employees were obviously intoxicated but it argues that the real reason for their discipline was their protected concerted activity.
This court has considered the briefs and oral arguments of counsel and has studied the record and is fully advised in the premises. The court is of the opinion that there is not substantial evidence on the record considered as a whole to support the finding that the discipline was the product of protected concerted activity. It appears clear that the discharge was motivated by the employees' misbehavior.
Therefore, it is hereby ordered that the petition for review is granted, the order of the NLRB is set aside, and the cross-petition for enforcement is denied.