# Kenrich Petrochemicals, Inc., Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner

> Court of Appeals for the Third Circuit · January 29, 1990 · 893 F.2d 1468

URL: https://www.frixlaw.com/law-library/cases/9479906

## Case

- **Full name:** KENRICH PETROCHEMICALS, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** January 29, 1990
- **Citations:** 893 F.2d 1468; 133 L.R.R.M. (BNA) 2417; 1990 U.S. App. LEXIS 970
- **Precedential status:** Published
- **Opinion:** Concurring in part by Stapleton
- **Judges:** Becker, Garth, Greenberg, Higginbotham, Leon, Mansmann, Sloviter, Stapleton
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STAPLETON, Circuit Judge,
concurring and dissenting:
I join all of the court’s opinion other than the section entitled “Remedy Regarding Helen Chizmar.” I respectfully dissent from the views there expressed.
The majority appears to hold that when an employer fires a supervisor for the purpose of coercing protected employees in the exercise of their rights under the Act, the Board is without power to order reinstatement and backpay of the supervisor absent a showing that the employees have failed to successfully exercise their rights in some specific manner. I believe this view does justice neither to the myriad of circumstances in which such coercion can be applied nor to the many subtle ways in which such coercion can fail in its principal objective and nevertheless take a substantial toll on employee rights under the Act. The fact that the union’s organizational efforts were successful here does not necessarily mean that the discharge did not intimidate the employees during the election or that they will not be intimidated by it in the future.
As the only other Court of Appeals to consider this precise issue has concluded, the Board is entitled to conclude that this kind of conduct in the overall context of a particular case poses such a substantial risk of suppressing the exercise of employee rights that the status quo must be restored. See NLRB v. Advertisers Manufacturing Co. 823 F.2d 1086 (7th Cir.1987) (reinstatement remedy upheld despite the success of the employees efforts to unionize). 1 I, too, am persuaded that there will be situations in which nothing less than the supervisor’s reinstatement with backpay *1488 will protect the rights bestowed upon the employees by the Act. I would defer to the Board’s judgment that this is such a case.
Present: A. LEON HIGGINBOTHAM, Jr., Chief Judge, and SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, CO WEN, NYGAARD and GARTH, Circuit Judges.
. I disagree also with the majority’s implication that this case materially differs from the numerous decisions approving the reinstatement of supervisors who were fired for refusing to commit unfair labor practices and for testifying in Board proceedings. See, e.g., Howard Johnson Co. v. NLRB, 702 F.2d 1, 6 (1st Cir.1983) (reinstatement remedy upheld despite supervisor’s refusal to commit unfair labor practice by informing on employees); cf. Local No. 207, International Assoc. of Bridge Workers v. Perko, 373 U.S. 701, 707 , 83 S.Ct. 1429, 1432 , 10 L.Ed.2d 646 (1963) (recognizing Board's authority to order reinstatement of supervisor discharged for refusing to engage in unfair labor practice). The employees in these decisions were not directly injured by the supervisor’s dismissal precisely because the supervisor refused to further the employer’s unlawful scheme. Rather, the courts have reasoned that these employees would not likely fully exercise their rights in the future if employers could freely discharge supervisors who assisted in the defense of protected rights. Chizmar’s reinstatement would protect the very same interest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479906. Public record. Not legal advice.