National Labor Relations Board v. Atlantic Towing Co.

180 F.2d 726

NATIONAL LABOR RELATIONS BOARD
v.
ATLANTIC TOWING CO.

No. 12697.

United States Court of Appeals Fifth Circuit.

March 9, 1950.

Further Rehearing Granted April 10, 1950.

Mozart G. Ratner, Prin. Atty., NLRB, Washington, D.C., David P. Findling, Assoc. Gen. Counsel, NLRB, Washington, D. C., A. Norman Somers, Asst. Gen. Counsel, NLRB, Washington, D. C., for petitioner.

T. M. Cunningham, Savannah, Georgia, for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and McCORD, Circuit Judges.

PER CURIAM.

1

After reading the petition for rehearing and considering the record as a whole, we are convinced that our decision in this case was erroneous. Consequently, we are withdrawing the last two paragraphs in our opinion, which was rendered January 30, 1950, and inserting in place thereof the following two paragraphs:

2

"Upon the record as a whole, there was no substantial evidence to warrant the Board in finding that Hendrix did not deliberately lie in reporting Captain Spencer's remarks to those gathered at the union meeting. The Board drew the inference from the undisputed facts that Hendrix made `an unintentional or perhaps negligent misstatement of facts.' It is admitted that the statement was false. The statement falsely charged the company with a violation of the labor law. Respondent had the right to discharge Hendrix for making the statement, irrespective of whether Hendrix knew or did not know that the statement was false. It was not an unfair labor practice to discharge him for making it.

3

"Accordingly, the petition to enforce the order should be denied."

4

We think the petition of Respondent for rehearing should be granted, the prior opinion of the court amended as above indicated, the judgment heretofore entered set aside, and judgment denying the Board's petition now entered. It is so ordered.

5

HUTCHESON, Chief Judge (dissenting).

6

Of the opinion when the case was decided that the order should be enforced, I thought that the opinion granting enforcement clearly apprehended and correctly disposed of the issue presented for our determination. I am of that same opinion still. I, therefore, dissent from the opinion and order on the motion for rehearing denying enforcement.

7

On Further Petition for a Rehearing.

8

PER CURIAM.

9

It is ordered that the petition of the National Labor Relations Board for a rehearing in this case be, and the same hereby is, granted, the rehearing to be had upon briefs. The Board is allowed not exceeding thirty days in which to file its brief, and the respondent is given fifteen days from the time the Board's brief is filed in which to reply to the same if it deems an answer necessary.