Illinois Ruan Transport Corporation v. NLRB

• Decision Date: 06 January 1969
• Docket Number: No. 19057.,19057.
• Citation: 404 F.2d 274
• Parties: ILLINOIS RUAN TRANSPORT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

404 F.2d 274 (1968)

ILLINOIS RUAN TRANSPORT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19057.

United States Court of Appeals Eighth Circuit.

November 26, 1968.

Rehearing Denied December 31, 1968.

Rehearing Denied January 6, 1969.

COPYRIGHT MATERIAL OMITTED

J. Leonard Schermer, of Shifrin, Treiman, Schermer & Susman, St. Louis, Mo., for petitioner; Thadeus F. Niemira, St. Louis, Mo., on brief.

Paul J. Spielberg, Atty., N.L.R.B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph C. Thackery, Atty., N.L.R.B., on brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and LAY, Circuit Judges.

Rehearing Denied December 31, 1968 En Banc.

VAN OOSTERHOUT, Chief Judge.

This case is before us upon the petition of Illinois Ruan Transport Corporation (Ruan) for a review of an order of the National Labor Relations Board issued against Ruan on June 9, 1967, reported at 165 NLRB No. 34. The Board has cross-petitioned for the enforcement of its order. It is agreed and established that Ruan is engaged in commerce within the meaning of the Act and that the court has jurisdiction under § 10(e) and (f) of the Act (National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq.)

The Board, in agreement with its Trial Examiner, found Ruan had violated § 8 (a) (1) of the Act by discriminatorily discharging its employee Adams for engaging in concerted protected activities in the implementation of the driver safety provisions of the collective bargaining agreement between the company and Teamsters Local No. 525, the collective bargaining agent of the employees. The Board ordered Ruan to cease its unfair labor practices, to restore Adams to his job with back pay, and to post notices.

The basic issue presented is whether there is substantial evidence in the record as a whole to support the Board's finding that Adams' discharge was motivated by Adams' protected union activity. A careful examination of the record as a whole convinces us that the Board's determination that Adams was discriminatorily discharged lacks substantial evidentiary support.

Initially, a serious question arose as to whether Adams' alleged safety campaign was a protected concerted activity. See Indiana Gear Works v. N.L.R.B., 7 Cir., 371 F.2d 273, and cases there cited. Adams was one of forty tank truck-trailer drivers employed by Ruan. A letter written by Adams to Ruan's president on April 1, 1966, contains many gripes by Adams with respect to company practices and makes numerous suggestions. At least many of these could not fall in the protected activity category. The record is barren of any evidence that any of Adams' complaints or suggestions had any support from any fellow-employees or the union. Adams' good faith in his alleged safety campaign is open to serious question. However, inasmuch as we hold hereinafter that the discharge was not motivated by the safety campaign, we see no purpose in adjudicating the close and difficult question of whether Adams' alleged safety campaign constituted protected concerted activity and will assume for the purposes of this case, without so deciding, that the activity is protected activity.

Adams was discharged on April 21, 1966. He was orally advised of the reasons for his discharge on that date, and at his request a letter bearing the same date was sent to him and received by him the following day. The letter reads:

"Dear Bob:

This letter confirms our conversation and is, after complete investigation, issued as notice of discharge for violation of Section 3(e) and Section 2(c) of Uniform Rules and Regulations Governing Employees of Tank Truck Carriers Signatory to the Central Conference of Teamsters Tank Truck Agreement for dishonesty in falsification of records and unauthorized use of our motor vehicle.

On April 13th, 1966 you took it upon yourself to move our transport #XXXX-XXXX from Standard Oil Company plant at 4017 Park Avenue, St. Louis to 16th & Clark Streets, St. Louis, Missouri where you had arranged for an I.C.C. equipment compliance check — a strictly unauthorized movement of our equipment.

When you arrived back at our terminal after a delay of nearly two hours you advised our dispatcher that you were delayed behind another truck — subsequently, you made out your J-61 operational report which stated that you were delayed at Standard Oil Plant because an American Oil Company truck with a defective pump was unloading ahead of you.

Our investigation with the American Oil Company plant superintendent develops that the above statement of yours is incorrect.

In addition to the above you were given four warning notices since November 2, 1965 for the following violations:

On November 2, 1965 you were given a warning letter because of running a railroad crossing — Section 5(e). On December 3, 1965 you received a warning notice for failure to properly load your transport, in violation of Section 3(g). On January 28, 1966 you were given a warning notice on accidents you had on January 25, 1966 and on January 28, 1966 — Section 1 (b). On February 9, 1966 you received a warning letter for violation of I.C.C. hours — Section 3(g).

Discharge is effective on April 21st, 1966."

Ruan bases Adams' discharge primarily upon the unauthorized movement of its motor vehicle on April 13, 1966, at St. Louis. On that date, Adams was sent from the company base at Wood River, Illinois, to make an oil delivery to a Standard Oil plant at 4017 Park Avenue in St. Louis. Without authorization from Ruan, Adams called the I.C.C. inspection office and at his request and without a demand from the inspector, he arranged for a safety inspection of his equipment. After unloading, pursuant to such arrangement, he drove his equipment to the I.C.C. location at 16th and Clark Streets in St. Louis.

The union and employer had entered into an agreement covering rules and regulations pertaining to drivers and with respect to penalties that could be imposed for rule violations. Section 2 (c) of the rules prohibits drivers from making unauthorized use of motor vehicles and provides for a penalty upon violation of layoff or discharge. Grievance procedures are spelled out in the contract in detail.

It clearly appears that the company and union by their negotiated contract agreed that unauthorized use of equipment was a breach of duty which would justify a discharge. The existence and validity of the rule is not challenged. It is established beyond dispute that Adams violated the unauthorized use rule. The National Labor Relations Board in its brief states:

"Although the ICC inspection involved a literal violation of a Company rule — since Adams had to drive the truck about a mile off route — this conduct cost the Company only a hour\'s use of its property, while it brought to light a number of defects affecting the safe operation of the truck."

Thus, it is firmly established that a valid basis existed under the labor contract for Adams' discharge.

The issue of whether there is substantial evidence in the record when considered as a whole to support the Board's finding has been frequently considered by the courts, including this court. The leading case of Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, lays down the guide lines for review on this issue. Among other things, the Court there states:

"We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board\'s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board\'s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." 340 U.S. 474, 490, 71 S.Ct. 456, 466.

Each case must be determined upon the basis of its own peculiar facts. The applicable principles have been cited and thoroughly discussed in our many prior cases dealing with the review of Board orders determining that discriminatory discharges were made. In a considerable number of cases, we have determined that the Board's finding of discriminatory discharge lacked substantial evidentiary support. Among such cases are, Singer Co., Wood Products Div. v. N. L. R. B., 8 Cir., 371 F.2d 623; Farmbest, Inc. v. N. L. R. B., 8 Cir., 370 F.2d 1015; N. L. R. B. v. Monroe Auto Equip. Co., 8 Cir., 368 F.2d 975; Banner Biscuit Co. v. N. L. R. B., 8 Cir., 356 F.2d 765; N. L. R. B. v. South Rambler Co., 8 Cir., 324 F.2d 447; Osceola County Co-op. Creamery Ass'n v. N. L. R. B., 8 Cir., 251 F.2d 62.

It is established by the authorities last cited that an employer has a right to hire and discharge employees at will, provided motivation for the discharge is not punishment for legitimate protected concerted activity. When, as here, the contract provides the basis upon which a discharge may be made, the contractual provisions constitute a further qualification upon the right to discharge. Where the discharge is upon a ground specifically authorized by the contract, the employer has the same absolute right to discharge as he would have had in the absence of contractual limitations upon discharge. When the contractual provisions for discharge are met, the right to...