Martin-Brower Co. v. N.L.R.B.
| Citation | 623 F.2d 1161 |
| Decision Date | 01 July 1980 |
| Docket Number | No. 78-1025,MARTIN-BROWER,78-1025 |
| Parties | 104 L.R.R.M. (BNA) 2812, 89 Lab.Cas. P 12,140 TheCOMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
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.
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 reasonably could have done to prevent or avoid the accident. The policy is largely enforced by the individual center. When an accident occurs, the driver fills out a report, which is filed with center management. A preliminary ruling is then made by this group and then submitted to the corporate headquarters in Chicago. An adverse ruling may be appealed by the driver to the National Safety Council, whose decision is final and binding on the driver and the company.
Ingram's first two accidents occurred on February 12, 1976 and June 10, 1976. Both of these accidents were ruled preventable by the center and affirmed by the corporate headquarters. Neither was appealed by Ingram to the National Safety Council.
On September 12, 1976, Ingram was involved in a third accident while driving up a steep incline in a motel parking lot. As he began to make a turn, an automobile attempted to pass him on the right. The front wheel of Ingram's truck hit the left front fender of the car.
The following day, Ingram turned in an accident report to the center. After conferring, Distribution Manager Ranier Hock and Transportation Manager Robert Mohrhusen recommended that, although it was in a "gray" area, the accident would be ruled "nonpreventable." That is to say, right after this third accident that occurred on September 12, the local management people, Hock and Mohrhusen, gave Ingram the benefit of a doubt and thereby ruled in his favor. The report was then sent on to corporate headquarters. On October 4, 1976, the Corporate Fleet Administrator, R. W. Coker, sent a letter to the Columbus center in which he ruled Ingram's third accident "preventable." The letter read:
I received the accident report for E. Ingram of 9/12/76, where he was turning in a parking lot and collided with a car. Your ruling was non-preventable because you felt that because our vehicle was moving 1 or 2 miles per hour, and the other vehicle should not have been so close to our vehicle.
Corporately, I am recording a preventable ruling because a professional driver always checks his mirrors before turning, and the car would have been visible had he done so.
I am sending copies of the National Safety Council's Accident Reports and you can have the driver complete them, and the ruling of the National Safety Council Committee (sic) is final and binding. Have the driver carefully complete the forms, completing all blanks, and return all six copies to me.
According to Corporate ruling, three preventable accident (sic) in a 12 month period calls for termination. Let me know what you decide.
Ingram was discharged on November 5, 1976. On November 11, 1976, he called manager Mohrhusen and requested a Center Safety Committee ruling on the third accident. On the same day, Mohrhusen asked Ingram to come in and fill out a report for the National Safety Council. On November 13 the Safety Committee re-enacted the accident in the company parking lot. The committee, which consisted of two managers and two drivers, found the accident to be preventable by a vote of 3 to 1. One of those voting the accident "preventable" was assistant...
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