623 F.2d 1161 (6th Cir. 1980), 78-1025, Martin-Brower Co. v. N.L.R.B.

Docket Nº:78-1025.
Citation:623 F.2d 1161
Party Name:The MARTIN-BROWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:July 01, 1980
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1161

623 F.2d 1161 (6th Cir. 1980)

The MARTIN-BROWER COMPANY, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 78-1025.

United States Court of Appeals, Sixth Circuit

July 1, 1980

Argued March 31, 1980.

Page 1162

Don A. Banta, James R. Cox, J. Kevin Hennessey, Naphin, Banta & Cox, Chicago, Ill., T. Kennedy Helm, Jr., Stites, McElwain & Fowler, Louisville, Ky., R. E. Seibert, Dir., Industrial Relations, Des Plaines, Ill., for petitioner.

Elliott Moore, Elinor H. Stillman, Deputy Associate Gen. Counsel, Charles P. Donnelly, N.L.R.B., Washington, D. C., Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, for respondent.

Before BROWN, KENNEDY and JONES, Circuit Judges.

BAILEY BROWN, Circuit Judge.

A charge was filed against petitioner company alleging that it had violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employee Earnest J. Ingram. The Board concluded that the company did indeed violate the act by discharging the employee for his union sympathies and activities. 233 N.L.R.B. No. 130. The company then petitioned this court to review and set aside the Board's decision, claiming that Ingram was discharged because of a company policy that required the dismissal of a driver who was involved in three "preventable" accidents within a twelve-month period. The Board cross-applied for enforcement of its order. Finding no substantial evidence in the record for the Board's conclusion, we reverse and therefore deny enforcement of the Board's order.

The Martin-Brower Company is engaged in the warehousing and distribution of food, paper and related products for the fast-food industry. The firm operates centers in Columbus, Ohio, Louisville, Kentucky, Atlanta, Georgia and Indianapolis, Indiana. This case centers on events taking place at the Columbus center.

Earnest J. Ingram was employed as a truckdriver at the Columbus center since January 6, 1975. He was discharged by the company on November 5, 1976. On November 11, 1976, Ingram filed a charge with the National Labor Relations Board, alleging that he was unlawfully discharged by the company because of his union sympathy and activity. The company responded by arguing that Ingram was discharged because he was involved in three "preventable" accidents within a twelve-month period. The Board found that the company's use of the three-accident policy in Ingram's case was merely a pretext for an unlawful discharge. The Board's findings can only be upheld if based upon substantial evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The three-accident policy was a companywide regulation providing for the mandatory termination of drivers who incur three "preventable" accidents within a twelve-month period. An accident is "preventable" if the driver failed to do everything he...

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