National Labor Relations Board v. Universal Cigar Corporation

Fifth Circuit

National Labor Relations Board v. Universal Cigar Corporation

425 F.2d 867

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 7, 1970

Docket28483

StatusPublished

Cited by2 cases

This text of 425 F.2d 867 (National Labor Relations Board v. Universal Cigar Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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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National Labor Relations Board v. Universal Cigar Corporation, 425 F.2d 867 (5th Cir. 1970).

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Opinion

PER CURIAM:

Again the NLRB petitions for enforcement of its order finding that the employer engaged in unfair labor practices. In that special numerical jargon with which we have become too familiar, this case involves an 8(a) (1) and 8(a) (Sys. 1 And here, as in so many cases, the only issue involved is whether the Board had substantial evidence from which to find that there were discriminatory practices. We conclude that such substantial evidence existed for two of the three incidents, and that it did not exist in the third.

The Board’s conclusion that the refusal to recall Tellis Smith was discriminatory, a § 8(a) (1) and (3) violation, is supported by substantial evidence from the record as a whole. That determination was largely a matter of evaluating the credibility of witnesses, a function of the Board, Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Great Atlantic and Pacific Tea Co. v. NLRB, 5 Cir., 1966, 354 F.2d 707. Likewise, the Board’s conclusion that the questioning of employee Todd about the strength of the union constituted a violation of § 8 (a) (1) is also supported by substantial evidence. Such questioning can be coercive, NLRB v. Sunnyland Packing Co., 5 Cir., 1966, 369 F.2d 787, and from the evidence here the determination that this was is supported.

We refuse, however, to enforce the Board’s finding, which overruled a hearing examiner’s determination and from which one member dissented, of a § 8(a) (3) and (1) violation in the discharge of James Townsend. The solicitation by Townsend clearly violated a valid no-solicitation rule. And, despite testimony about turkey raffles and Avon ladies, there is no substantial evidence for the conclusion of disparate enforcement or waiver of the rule. Mason & Hanger-Silas Mason Co. v. NLRB, 5 Cir., 1968, 405 F.2d 1.

Enforcement granted in part and denied in part.

1

. 29 U.S.C.A. § 158(a) (1) and (3).

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PER CURIAM:

Again the NLRB petitions for enforcement of its order finding that the employer engaged in unfair labor practices. In that special numerical jargon with which we have become too familiar, this case involves an 8(a) (1) and 8(a) (Sys. 1 And here, as in so many cases, the only issue involved is whether the Board had substantial evidence from which to find that there were discriminatory practices. We conclude that such substantial evidence existed for two of the three incidents, and that it did not exist in the third.

The Board’s conclusion that the refusal to recall Tellis Smith was discriminatory, a § 8(a) (1) and (3) violation, is supported by substantial evidence from the record as a whole. That determination was largely a matter of evaluating the credibility of witnesses, a function of the Board, Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Great Atlantic and Pacific Tea Co. v. NLRB, 5 Cir., 1966, 354 F.2d 707. Likewise, the Board’s conclusion that the questioning of employee Todd about the strength of the union constituted a violation of § 8 (a) (1) is also supported by substantial evidence. Such questioning can be coercive, NLRB v. Sunnyland Packing Co., 5 Cir., 1966, 369 F.2d 787, and from the evidence here the determination that this was is supported.

We refuse, however, to enforce the Board’s finding, which overruled a hearing examiner’s determination and from which one member dissented, of a § 8(a) (3) and (1) violation in the discharge of James Townsend. The solicitation by Townsend clearly violated a valid no-solicitation rule. And, despite testimony about turkey raffles and Avon ladies, there is no substantial evidence for the conclusion of disparate enforcement or waiver of the rule. Mason & Hanger-Silas Mason Co. v. NLRB, 5 Cir., 1968, 405 F.2d 1.

Enforcement granted in part and denied in part.

1

. 29 U.S.C.A. § 158(a) (1) and (3).

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425 F.2d 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-universal-cigar-corporation-ca5-1970.

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