Crown Central Petroleum Corporation v. NLRB

• Citation: 430 F.2d 724
• Decision Date: 28 July 1970
• Docket Number: No. 28124.,28124.
• Parties: CROWN CENTRAL PETROLEUM CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

430 F.2d 724 (1970)

CROWN CENTRAL PETROLEUM CORPORATION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 28124.

United States Court of Appeals, Fifth Circuit.

July 28, 1970.

J. M. Hopper, Charles L. Berry, Houston, Tex., for petitioner; Vinson, Elkins, Searls & Connally, Houston, Tex., of counsel.

Clifford Potter, Regional Dir., N.L. R.B., 23rd Region, Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, William Wachter, Michael F. Messite, Attys., N.L.R.B., Houston, Tex., for respondent.

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

GEWIN, Circuit Judge:

Crown Central Petroleum Corporation (hereinafter, the Company) seeks review of an order of the National Labor Relations Board finding that it violated § 8(a) (1)¹ of the National Labor Relations Act by disciplining two of its employees, for statements they made during a grievance meeting. The Board cross-petitions for enforcement. We enforce the order.

The Company operates an oil refinery in Houston, Texas. Since 1945, Local 4-227 of the Oil, Chemical & Atomic Workers International Union AFL-CIO has been the certified representative of the refinery employees. Their collective bargaining agreement establishes a workmen's committee to participate in the disposition of employee grievances. The two disciplined employees, George S. Harris and Jack R. Gilliam, had worked for the Company for over twenty years. At the time of the critical events both were members of the Workmen's Committee, and Gilliam was its chairman.

On 29 March 1968, Fred Manly, Assistant Maintenance Superintendent, asked Harris why he had not been working overtime.² Harris replied that he did not want to work overtime, which he understood was his option under the collective bargaining agreement. Manly and Harris then went to the office of Harry A. Taylor, Assistant Employee Relations Manager, where Harris repeated his position. At Taylor's suggestion, Harris left the office and returned with Union Committeeman William Loree. In the meeting that followed it was the Company's position that, absent excuse, overtime was required by the contract, while the Union representatives maintained that it was optional with the employees.

According to the testimony of Harris and Loree, Taylor stated that Harris would be required to work the overtime. They also stated that Manly then "requested" Harris to work the overtime, to which Harris replied that, if he were given a choice, he would not work. According to Harris and Loree, Manly then "ordered" Harris to work the overtime, and Harris replied that he would obey the order under protest. Manly testified in general agreement with the foregoing except that he denied having "ordered" Harris to work overtime. Thereafter, Harris filed a grievance alleging that the Company had violated the collective bargaining agreement by requiring the overtime work.

On 9 May 1968, the Workmen's Committee, chaired by Gilliam and including Harris and four other employees, held a grievance meeting with Company representatives. The Harris grievance was originally brought up during the morning session, but action was deferred until the afternoon so that Manly could be present. There is a wide variety of testimony as to the precise events during the afternoon session.³ It is clear, however, that under questioning from Gilliam, Manly denied having "ordered" Harris to work overtime. Harris then stated or implied that Manly's denial was a lie. Several witnesses testified that the allegation against Manly was accompanied by profanity. It also appears that Gilliam reminded Manly and the Company's representatives that they would be called upon after death and in the hereafter — in a bargaining session yet to come — to answer for their earthly prevarications. After Gilliam's remark the meeting was adjourned.

On 10 May 1968, Harris received a reprimand letter for "abusive and insubordinate language directed at supervisors" warning that any repetition would be dealt with more severely. Gilliam received a similar letter and a one day suspension for having tolerated and joined in Harris's conduct. This disciplinary action gave rise to the subject unfair labor practice charges.

The Trial Examiner held a hearing on the charges that the Company's action violated both §§ 8(a) (1) and 8(a) (3).⁴ He found the facts to be substantially as we have set them out above. The Trial Examiner recognized that under a line of prior Board decisions⁵ the present conduct would normally be held to be protected and beyond the reach of employer discipline. However, he observed that the balance in these cases must be made according to their particular facts, and found that there were special circumstances in the present case which required a different conclusion: (1) The Trial Examiner saw no distinction between an employee being "ordered" to do something and his being "requested" to do it, and concluded that this case was "illborn." (2) He found no justification for the remarks made by Harris and Gilliam especially in light of Manly's mild-mannered nature. (3) He found no evidence of union animus in this case or in the Company's labor history.

On review the Board found the Trial Examiner's distinctions unpersuasive. First, it felt the merits of the underlying grievance impertinent to the question of whether the employees were unlawfully disciplined. Next, the Board concluded that the Trial Examiner's finding that the remarks were not justified, even if correct, was not controlling. It stated, "The issue is not whether the statements by Harris and Gilliam were justified by either the Trial Examiner's standards or ours, but rather whether these statements were so opprobrious as to remove them from the otherwise protected nature of a grievance meeting." Finally, the Board observed that a finding of union animus was not a necessary element of an 8(a) (1) violation. It did not feel it was necessary to determine whether the conduct was inherently discriminatory, which would have permitted a finding of an 8(a) (3) violation absent evidence of union animus; but held that the conduct violated 8(a) (1).

The Company initially contends that, inasmuch as the Board did not disturb the Trial Examiner's conclusion that the Company had no unlawful motive in disciplining Harris and Gilliam, its finding of an 8(a) (1) violation was unwarranted. The Company places its principle reliance on three cases decided by the Supreme Court in 1965. Textile Workers Union v. Darlington Manufacturing Co.;⁶ N.L.R.B. v. Brown;⁷ American Ship Building Co. v. N.L.R.B.⁸ However, these cases, as well as later Court decisions involving unlawful employer motive,⁹ dealt with alleged violations of § 8(a) (3) as well as 8(a) (1). Unlike § 8(a) (1), 8(a) (3)¹⁰ has been construed as requiring that the prohibited conduct must be for the purpose of encouraging or discouraging membership in a labor organization.¹¹

In Darlington, the Court stated:¹²

A violation of § 8(a) (1) alone * * * presupposes an act which is unlawful even absent a discriminatory motive. Whatever may be the limits of § 8(a) (1), some employer decisions are so peculiarly matters of management prerogative that they would never constitute violations of § 8(a) (1), whether or not they involved sound business judgment, unless they also violated § 8(a) (3).

It would thus appear that the exercise of such "management prerogatives" as going out of business¹³ or engaging in a lock-out of employees¹⁴ may not be judged initially by § 8(a) (1) and may only be held to violate that Section derivatively through a violation of 8(a) (3).¹⁵ The discussions of employer motive cited by the Company from these cases would then relate to the requirements of § 8(a) (1) only insofar as such a violation must be derived from an 8 (a) (3) violation.¹⁶

In the present case the Board did not sustain the charge under § 8(a) (3); it stated:

Affirmative evidence of union animus might be necessary to support a violation of Section 8(a) (3) but it is not necessary to support a violation of Section 8(a) (1). Accordingly, while Respondent\'s disciplining of Harris and Gilliam for engaging in the collective-bargaining process itself may have been inherently discriminatory, we find it unnecessary to resolve that issue, for we find that in any event such disciplining constituted interference, restraint, and coercion with respect to Section 7 rights, and thus violated Section 8(a) (1).

In our opinion, the disciplining of employees for insubordination, while certainly the right of management, is not such an inherent management prerogative as to be immune from challenge as a primary violation of § 8(a) (1). When thus considered, the motive behind an employer's conduct is not an element of the unfair labor practice charged.¹⁷ In Welch Scientific Co. v. N.L.R.B., the court stated:¹⁸

In essence, the company argues that as its actions were taken in good faith it committed no unfair labor practice. There is much in this record to indicate that the company acted in good faith * * *, but we conclude that, if the conduct complained of otherwise violated Section 8(a) (1), good faith is no defense. The cases clearly demonstrate that it is the tendency of an employer\'s conduct to interfere with the rights of his employees protected by Section 8 (a) (1), rather than his motives, that is controlling.

Under the facts and in the circumstances disclosed by the record before us the absence of a finding of unlawful motive is not fatal to the Board's conclusion that the Company violated 8(a) (1).

The question remaining is whether the Board properly concluded that the conduct of Harris and Gilliam was protected by the Act so as to make the imposition of disciplinary sanction violative of Section 8(a) (1). Initially, the filing and prosecution of employee grievances is a fundamental, day-to-day part of...