377 F2d 670 Zachry Company v. National Labor Relations Board

377 F.2d 670

H. B. ZACHRY COMPANY, Petitioner,

No. 23225.

United States Court of Appeals Fifth Circuit.

May 25, 1967.

George W. Krog, Chester H. Johnson, San Antonio, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, William J. Avrutis, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Atty., N.L.R.B., Washingon, D.C., for respondent.

Before THORNBERRY, GOLDBERG and DYER, Circuit Judges.


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This case is before us upon the petition of Zachry to review, and the cross-petition of the Board for enforcement of the Board's order.1


It would serve no useful purpose to detail the facts, circumstances, admissions and inferences that can be properly drawn from the evidence.


Substantial evidence on the record considered as a whole sustains the Board's findings that the company discharged six employees for engaging in protected concerted action in violation of 8(a)(1) and (3) of the Act.


We have considered and find to be without merit petitioner's contentions (1) that the purpose of the walkout of the six employees was to force the employer to assign certain work to electrician's helpers rather than to laborers and that, therefore, the walkout was an unfair labor practice in violation of 8(b) (4), (d); and (2) that it was denied due process by the Board's refusal to grant oral argument. Morgan v. United States, 1936, 298 U.S. 468, 481, 56 S.Ct., 906, 80 L.Ed. 1288; NLRB v. Clausen, 3 Cir., 188 F.2d 439, 444, cert. den. 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 653.


With respect to the Regional Director's refusal to permit petitioner to take depositions the company failed to file due exception as required by 10(e) of the Act. It therefore cannot raise the point now. NLRB v. Seven-Up Bottling Co., 1953, 344 U.S. 344, 350, 73 S.Ct. 287, 97 L.Ed. 377; NLRB v. Cheney California Lumber Co., 1946, 327 U.S. 385, 387-389, 66 S.Ct. 553, 90 L.Ed. 739; United States v. L. A. Tucker Truck Lines, 1952, 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54.

The Board's order is




155 N.L.R.B. No. 121, issued Nov. 29, 1965