477 F2d 565 National Labor Relations Board v. L B Foster Company

477 F.2d 565

83 L.R.R.M. (BNA) 2412, 71 Lab.Cas. P 13,708

L. B. FOSTER COMPANY, Respondent.

No. 73-1183
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 31, 1973.

Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N.L. R.B., Houston, Tex., for petitioner.

Louis B. Paine, Jr., Houston, Tex., for respondent.

William N. Wheat, Houston, Tex., for Shopmen's Local Union No. 694 of the Int. Assn. of Bridge, etc. Workers, intervenor.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.


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Pursuant to section 10(e) of the National Labor Relations Act of 1947, 29 U.S.C. Sec. 160(e) (1971), the National Labor Relations Board seeks enforcement of an order compelling L. B. Foster Company to bargain with Shopman's Local Union No. 694, which was certified as the bargaining representative of certain employees. In the election there were 10 votes cast for the Union and 8 votes against the Union. At issue on appeal is the validity of the Board's determination that five employees were ineligible to vote because they were supervisors within the meaning of section 2(11), 29 U.S.C. Sec. 152(11) (1971). The facts of this case are similar to National Labor Relations Board v. Houston Natural Gas Corporation, 5 Cir., 1973, 478 F.2d 467, where the Board expressed an opposite view and we agreed that the employees were not supervisors. Finding the present case indistinguishable from Houston Gas, we conclude that the employees were not supervisors and therefore their votes should have been counted.


Enforcement denied.


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