770 F. 2d 167 - Roadway Express Inc Cross-Respondent v. National Labor Relations Board

BEFORE: JONES, Circuit Judge; EDWARDS, Senior Circuit Judge; and SILER, Chief District Judge.*

The petitioner Roadway Express, Inc., petitions this Court to review and set aside an order of the National Labor Relations Board which found that petitioner had violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1). The Board has cross-applied for enforcement of its order. In the present motion, the Board moves to remand the cases in light of an intervening Sixth Circuit decision, Lawson Co. v. NLRB, 753 F.2d 471 (6th Cir. 1985). Petitioner opposes the Board's motion on grounds that a remand would only serve to delay disposition of the case. The cases have been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the Board's motion and petitioner's response thereto, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Upon examination of the certified record, it appears the motion to remand is well-taken. In deciding the present case adversely to the company, neither the ALJ nor the Board specifically cited or applied Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enf'd as mod., 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), wherein the test for evaluating employer motivation was set out. Since application of the Wright Line test is clearly required under our decision in Lawson Co. v. NLRB, supra, the case must be remanded to the Board for further consideration.

Therefore, it is ORDERED that the motion to remand is hereby granted. The orders of the Board filed February 17 and November 7, 1984, are hereby vacated and the cases are remanded for application of the Wright Line test as mandated by our decision in Lawson Co. v. NLRB, supra. Rule 9(d)(4), Rules of the Sixth Circuit.