National Labor Relations Board, Petitioner, v. Allis-chalmers Corporation, Respondent, 608 F.2d 1018 (5th Cir. 1979)

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U.S. Court of Appeals for the Fifth Circuit - 608 F.2d 1018 (5th Cir. 1979) Dec. 26, 1979

Elliott Moore, Deputy Associate, Gen. Counsel, Joseph Oertel, Atty., N.L.R.B., Washington, D. C., for petitioner in both cases.

Jolly, Miller & Milam, E. Grady Jolly, James R. Lockard, Jackson, Miss., for respondent in both cases.

Lynn Agee, Memphis, Tenn., for Int'l Union, United Automobile, Aerospace & Agricultural Implement Workers of America.

John G. Elligers, Supervisor, N.L.R.B., Washington, D.C., for petitioner in No. 78-3322.

Applications for Enforcement of Orders of the National Labor Relations Board.


Opinion Aug. 30, 1979, 5 Cir., 601 F.2d 870

Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.


In our original decision in this case, we enforced the Board's order in part and remanded on the issue of back pay. On petition for rehearing, Allis-Chalmers has raised some question of the accuracy of our conclusion that the Board found that corrections by the Union aided in dissipating the Union misstatement concerning the Board action in the Cook firing.

Pursuant to our request in accordance with FRAP Rule 40, the Board has filed a response to the petition for rehearing. After due consideration of the petition and response and a review of the record, we have doubts whether our conclusion was justified. In light of the crucial part this conclusion played in our reconciliation of the Board's action in this case and its decision in Formco, Inc., 233 N.L.R.B. 61 (1977), we now believe it is best to remand that part of the Board's decision dealing with the Cook misstatement by the Union, for the Board to clarify the basis of its decision, especially in relation to Formco. During the remand, enforcement of the Board's order will be stayed.

In all other respects the petition for rehearing is DENIED.

No member of this panel or Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is DENIED.


GEE, Circuit Judge, concurring:

I concur in the opinion on rehearing and withdraw the last full paragraph of my special concurrence in the original majority opinion. 5 Cir., 601 F.2d 870, 876. See Home Town Foods, Inc. v. N. L. R. B., 416 F.2d 392, 399 (5th Cir. 1969).