Harper and Arterburn Co., Inc. v. National Labor Relations Board

Sixth Circuit

Harper and Arterburn Co., Inc. v. National Labor Relations Board

692 F.2d 402, 112 L.R.R.M. (BNA) 2541, 1982 U.S. App. LEXIS 18742

CourtCourt of Appeals for the Sixth Circuit

DecidedJune 3, 1982

Docket81-1289

StatusPublished

This text of 692 F.2d 402 (Harper and Arterburn Co., Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harper and Arterburn Co., Inc. v. National Labor Relations Board, 692 F.2d 402, 112 L.R.R.M. (BNA) 2541, 1982 U.S. App. LEXIS 18742 (6th Cir. 1982).

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Opinion

*403 ORDER

Harper & Arterburn, Inc. seeks review of the order of the National Labor Relations Board instructing it to rehire Jerry English, a former employee who was allegedly fired because he requested that a union steward be placed on a company jobsite. The Board’s order finding the company in violation of section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. is reported at 255 N.L.R.B. 105. On appeal, the company argues that the Board’s cross-petition for enforcement of its order should be denied because its decision is not supported by substantial evidence.

We agree. The Supreme Court in Universal Camera Corporation v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), cautioned the Courts of Appeal against abdicating their role as independent decision-makers by granting finality to the orders of the National Labor Relations Board. There, Justice Frankfurter, attempting to garner more completely the intentions of Congress, halted the erosion of the substantial evidence standard. Review under that standard had become one-sided. If evidence could be found anywhere in the record to support conclusions of fact, “the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate.... ” Id. at 481, 71 S.Ct. at 460. This is not what Congress contemplated. Instead, said the Court,

Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.

Upon a complete review of the entire record we are unable to concur in the Board’s judgment that the company violated the Act when it fired Jerry English. That evidence showed English to be a difficult worker whose complaints and demands disrupted other employees and the progress of construction generally. Even the union steward, who was appointed to that position as a result of one of English’s requests, complained to management about English’s inability to work smoothly with others. Furthermore, the fact that English was dismissed shortly after complaining about the absence of a union steward cannot by itself erase the just cause which otherwise existed for his firing. Timing alone is not sufficient evidence upon which to sustain an unfair labor charge. Colonial Corporation v. NLRB, 427 F.2d 302 (6th Cir.1970).

Harper & Arterburn’s petition is granted; the Board’s cross-petition is denied.

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*403 ORDER

Harper & Arterburn, Inc. seeks review of the order of the National Labor Relations Board instructing it to rehire Jerry English, a former employee who was allegedly fired because he requested that a union steward be placed on a company jobsite. The Board’s order finding the company in violation of section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. is reported at 255 N.L.R.B. 105. On appeal, the company argues that the Board’s cross-petition for enforcement of its order should be denied because its decision is not supported by substantial evidence.

We agree. The Supreme Court in Universal Camera Corporation v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), cautioned the Courts of Appeal against abdicating their role as independent decision-makers by granting finality to the orders of the National Labor Relations Board. There, Justice Frankfurter, attempting to garner more completely the intentions of Congress, halted the erosion of the substantial evidence standard. Review under that standard had become one-sided. If evidence could be found anywhere in the record to support conclusions of fact, “the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate.... ” Id. at 481, 71 S.Ct. at 460. This is not what Congress contemplated. Instead, said the Court,

Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.

Upon a complete review of the entire record we are unable to concur in the Board’s judgment that the company violated the Act when it fired Jerry English. That evidence showed English to be a difficult worker whose complaints and demands disrupted other employees and the progress of construction generally. Even the union steward, who was appointed to that position as a result of one of English’s requests, complained to management about English’s inability to work smoothly with others. Furthermore, the fact that English was dismissed shortly after complaining about the absence of a union steward cannot by itself erase the just cause which otherwise existed for his firing. Timing alone is not sufficient evidence upon which to sustain an unfair labor charge. Colonial Corporation v. NLRB, 427 F.2d 302 (6th Cir.1970).

Harper & Arterburn’s petition is granted; the Board’s cross-petition is denied.

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692 F.2d 402, 112 L.R.R.M. (BNA) 2541, 1982 U.S. App. LEXIS 18742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-and-arterburn-co-inc-v-national-labor-relations-board-ca6-1982.

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