430 F.2d 786 (5th Cir. 1970), 28244, N.L.R.B. v. Shop Rite Foods, Inc.

Docket Nº:28244.
Citation:430 F.2d 786
Case Date:August 21, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 786

430 F.2d 786 (5th Cir. 1970)



SHOP RITE FOODS, INC., Respondent.

No. 28244.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1970

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Elliott Moore & Janet McCaa, Washington, D.C., Elmer P. Davis, Region 16, N.L.R.B., Fort Worth, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B. for petitioner.

J. A. Gooch, Edward L. Kemble, Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Tex., for respondent.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

Page 787

GODBOLD, Circuit Judge:

Enforcement of the Board's order is granted insofar as it directs Shop Rite to cease and desist from interrogation, threats of discharge and surveillance. 1

The remaining issue in the case poses once again the conflict between the right of employees to engage in concerted activities protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, 2 and their duty to present grievances through their duly certified bargaining agent under Section 9(a), 29 U.S.C. § 159(a). 3

In September, 1966, after a Board election, the United Packinghouse, Food and Allied Workers was certified as the exclusive bargaining representative for an appropriate unit of employees at Shop Rite's warehouse in Lubbock, Texas. There were approximately 130 employees in the unit at the time of the events in question. The union set up a local, and officers were chosen.

In late November negotiations for a collective bargaining agreement began. There were monthly meetings in November, December and January, three meetings in February, and five in March-- March 1, 15, 16, 28 and 29. The company made written counterproposals on March 15 and 28, and what it described as its final offer was mailed to the union on March 31. Thus, when the walkout here in issue occurred-- on March 31-- the company had made what it termed a final offer, and the next thing to be done was acceptance or rejection by the union. 4

Beginning in late February and continuing into March, Warehouse Superintendent Belcher and Warehouse Manager Probasco noted a significant increase in the amount of damaged merchandise in the warehouse. They concluded that the damage was being intentionally caused by dissident employees as a pressure tactic to secure concessions from the company in the collective bargaining negotiations. Probasco told employee Hawkland, president of the local, that he regarded the increase in damage as deliberate. He requested Hawkland use his influence to control the damage, and told him damage tactics would not affect the bargaining negotiations. Hawkland, while denying knowledge of unusual damage, agreed to convey the request to union members. The damage, according to management, continued to be excessive. For three days off-duty policemen were hired to stand guard in the warehouse. They were dismissed at Hawkland's request. Excess damage stopped for ten days until March 30, when 29 sacks of dog food were found cut. Wenk, a vice-president of the company, conferred with President Hawkland, Chief Union Steward Lee, and Committeeman Ivey and asked their help so that it would not be necessary to recall the guards.

Page 788

On the morning of March 31, a Friday, Superintendent Belcher observed employee Bownds in the flour section, where he had no business to be, making quick motions with his hands. He went to the place at once and found several bags of flour had been cut, apparently with a sharp instrument. Superintendent Belcher reported to Manager Probasco and Vice-President Wenk that he had seen Bownds cut sacks of flour. Wenk instructed that Bownds be discharged. Bownds was called to the office and told he was being fired for intentionally cutting sacks of flour. 5

On his way out of the warehouse Bownds told President Hawkland of his discharge. Hawkland and Chief Union Steward Lee went to the flour section and found Manager Probasco and Vice-President Wenk there. Lee stated that '(Bownds) hadn't done this, that we (the company) were asking for trouble.' Wenk told Lee that 'this wasn't the time to discuss it' and to return to his work or he would be fired.

Approximately half an hour later, during their coffee break, Hawkland, Lee and Ivey, accompanied by about 10 other employees, came into Probasco's office where Wenk was also. One or more of the officers demanded proof of why Bownds was fired. Wenk told them that this was not the time or place to discuss it, that he was not obligated to prove it, and that unless they left the office at once and returned to work he would fire them for insubordination. They threatened to walk out, and Wenk told them if they did so they were quitting.

Hawkland and Ivey solicited and led an immediate walkout of about 30 employees. Eight more joined it later that day or the next morning.

Immediately after the walkout began the participants went to the union hall and told Ramon, the field representative of the international union, what had transpired. He told them he would get in touch with George Thomas, the union's district director at Fort Worth, Texas, to get authorization for the strike and to 'go on and picket.' Picketing commenced about 11:30 a.m. of that day. Mauser, the field representative of the international union...

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