*1 RELATIONS NATIONAL LABOR
BOARD CO. LINE PIPE
SOUTHEASTERN
No. 14711. Court
United States Fifth Circuit.
Feb. Findling, Gen. Coun- David P. Asso. Somers, B.,R. A. Asst. sel N. L. Norman N.L.R.B., Washington, D. Counsel Gen. Officer,
C., Pate, William Chief Law George Bott, Atlanta, Ga., N.L.R.B., J. Singer, Counsel, General Samuel M. Washington, Waterstone, C.,D. Alan R. Mich., Detroit, petitioner. Kilpatrick, Cleveland, Jr., M. E. A. G. (Smith, Kilpatrick, Cody, Ga. Rogers McClatchey, counsel, & At- lanta, Ga.), HUTCHESON, Judge, Before Chief and HOLMES and Judges. Circuit HOLMES, Judge. sought herein to be en- was issued on March forced practices unfair labor therein men- having occurred in tioned State judicial Georgia, circuit, within this jurisdiction this court under Section National Labor Relations Act, 160(e). In 29 U.S.C.A. June of *2 organize legitimate began rea- the board business union to the advantageous sons, employees. to its respondent’s the it was continue One of present arrangement leading with E. of pro-union was T. job, undue employed the combined and an Barcroft, at that time that who was actively hardship require- campaigned would as a clerk. He talking After ment that it reinstate Barcroft. the other em- to the union obtaining signed in- seeking the issuance of trial examiner’s ployees, the and respondent report, filed termediate the union cards. pre- motion with the to board leave employee in- an duties as Barcroft’s showing that sent additional evidence typing taking let- and dictation cluded of Barcroft would superintendent of the re- ters hardship respond- work an undue on the division, keeping spondent’s northern ent, which motion After was overruled. securing distributing records, ma- and filing petition of board’s perform- supplies. In the terials and order, respondent of enforcement its duties, in direct he came ance of these filed court Sec- its motion in this under of em- a number other with contact of for a remand tion the Act thereby to ployees, able assist was and board, ad- the case to the so that could organizational drive be- its union in respect to additional duce evidence an ordered The board fore the election. alleged duly election, cer- was the union and ordered reinstatement of Barcroft. bargaining representative tified as the August fully supports respondent The finding Shortly won the elec- board’s that the of Bar- union transfer after motivated; discriminatorily re- tion, to the croft was transferred was Barcroft rejection respondent's office, was spondent’s where he but the offer posi- to Barcroft his former show the retransfer of To fill made a clerk. position presents ques part- tion, respondent transferred warehouse, respondent com- tion law. offered to and chemist to time those chemist include show duties duties to latter’s bined the Brown, replaced Barcroft, who had be and chemist. of a clerk considerably come less of the reason agreement concluded, in The board operation of another chemical labora examiner, Barcroft’s with the trial tory; had been activities, union due to his transfer was planning for Brown to over the take respondent had violated job of combined chemist clerk-ware Act, 29 8(a)(3) U.S.C.A. of the Section houseman' before the union’s activities 158(a)(3); further it found began; contemplated change discriminatory respondent, its trans- occurred earlier because Barcroft’s compensa Barcroft, reprisals its threats fer transfer; that no additional practices, inter- him and other paid was to Brown when he took restrained, with, its coerced fered job; over the combined that Barcroft’s 8(a) employees, in violation of Section vacancy into transfer partment another de (1) Act. It ordered saved the employee’s salary; amount of one post appropriate notices, the reinstatement Barcroft to Barcroft reinstatement to to offer require job of clerk-warehouseman. expend money spondent to for an em accept did not for whose services it recom- need. board proffer the trial examiner The considered such offered board mendation immaterial should be relieved evidence issue of re instatement, obligation accept to make the rein- and refused said such of its hardship plea. if it effective statement Mfg. Co., Cir., 158 from N. L. R. B. v. Vail was transferred in re F.2d 664. his spondent’s as clerk-warehouseman job as northern division The board’s order will be enforced *3 department, respondent’s traffic clerk in requirement City a distance in located job. miles from of twelve the enforcement of said but pay remained and hours of work His same, order will be denied as to the re-transfer performed of a cleri work and he po- of Barcroft to the site of his former large which was similar cal nature Accordingly, with modifica- sition. job. portion his work in mentioned, the order of the board by position created The combined spondent requires will be enforced. knowledge a chem Modified and Enforced. istry, not have. Barcroft does which charge made is no claim or There Judge (Concurring in pay, respondent for back Dissenting Part). in Part and employee in his em has continued except ployment at the same I as to the denial of concur re cost-of-living salary raise. with a usual instatement of Barcroft former his proof appears proffered job. I if concur further such rein It expedient require respondent transfer was an economic statement would resulting efficiency only in a where is increased hire two needed, saving expense denied; but, for the in then it should be by adequately of Barcroft to To order the re-transfer reasons stated position Examiner,1 I which Trial has abol do not think that the usurpation present ished would be a in record shows that to be a fact. management prerogatives majority herent to The of this Court arrives at operate efficiently by result, me, by its business more that sidering so it seems to con reducing expenses proffered thereof. The em but refused evi discharged has never been and dence as if it had been received. If that complaint salary. pre by has as to He admitted evidence had been Board, job. fers the site of his former Union the witnesses would have been B., Cir., subject Drawn Steel Co. R. v. N. L. to cross-examination and rebut 587; Lightner might 109 F.2d L. R. B. v. N. tal have been offered Publishing Cir., Corp., 237; produce 128 F.2d different from nothing 1. “There is in this record indicat and of method method ing jobs operating previously, these have been com there evi is no nondiseriminatory comparison bined for reasons. To dence from which a can be contrary, prevailing the evidence is to the effect in the made with the situation combining jobs division, of these was an ex there is no evidence southern concerning pedient resulting formerly performed from the transfer the duties Barcroft. it was an Whether economic of Re Brown at offices expedient saving Maybe spondent. in a in effi these duties are not ciency expense performed. is now the other it On hand speculative may and is not revealed were this be that additions made possible, course, compensate record. It is removal staff to Brown’s combining jobs combining of these bene therefrom Respondent jobs legiti ficial Barcroft’s and Brown’s at ware accomplish greater mate business fact reasons desires to con house does not in present saving expense. operating. efficiency tinue method of or a in For However, this record not similar it can not be does furnish reasons determined sufficient information to form record whether a basis this reinstatement of determining question. position example, For as clerk adequate the evidence is not form warehouseman would work to' an undue Respondent.” comparison basis from which a can be present made of the effectiveness of the ' considering majority in reached already part rec the evidence n right modi- ord. It me that seems to in this re
fication of Board’s part spect with that accord would be to Exa of the order recommended respectfully I, therefore, con miner.2 part. part cur in and dissent
BURNS (MALAMUT, al. et
GOLDBERG defendant). party third
Appeal of MALAMUT
. et Appeal al. GOLDBERG 11122,11128.
Nos. Court of States
United Circuit. Third
Argued Nov. 24, 1954.
Decided Feb. E:, Barcroft would cause an undue immediate T. “Offer" and that neither his former or a sub full stantially equivalent warehouseman, proves exists.” clerk unless provided, hereinabove reinstate