Mushroom Transportation Company v. NLRB
| Decision Date | 24 April 1964 |
| Docket Number | No. 14510.,14510. |
| Citation | 330 F.2d 683 |
| Parties | MUSHROOM TRANSPORTATION COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Israel Packel, Philadelphia, Pa. (Nathan L. Posner, Philadelphia, Pa., Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., on the brief), for petitioner.
Seymour Strongin, N.L.R.B. Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin J. Welles, Attorney, N.L.R.B., on the brief), for respondent.
Before KALODNER and HASTIE, Circuit Judges, and KIRKPATRICK, District Judge.
The Board ordered the reinstatement with back pay of Charles Keeler, a non-regular employee of Mushroom Transportation Company, Inc., an interstate motor carrier. The case is now before this court upon Mushroom's petition to review and set aside the order and the Board's answer requesting enforcement.
In addition to its thirty or forty regular drivers, Mushroom maintains a list (supplied to it by the Union steward) of part-time drivers or "extras" who are normally hired when regular men are not available. Shortly after December 15, 1961, Cutaiar, the petitioner's president, directed that Keeler's name be removed from the extra list and that he receive no further work. The Board, adopting the trial examiner's findings, found that this was done because Cutaiar had heard rumors that Keeler was going to report the company for I.C.C. violations and also other rumors to the effect that Keeler was telling the drivers that "they were not getting what they were entitled to" under the existing union contract. In Cutaiar's words, his reasons were that he understood that Keeler was a "crackpot" and had a reputation for being a troublemaker. In the view that we take of the case, it is immaterial whether Cutaiar was correctly informed, although it may be said that the evidence shows that the report that Keeler was a troublemaker had a fairly substantial foundation.
The evidence is to the effect that Keeler had been in the habit of talking to other employees and advising them as to their rights. The trial examiner found that the subjects of these conversations were principally holiday pay, vacations, and the company's practice of assigning trips to drivers of other companies rather than to its own regular drivers. He registered his conclusion that Keeler's activities involved attempts by him to implement the existing bargaining contract. That, however, is merely the trial examiner's characterization of the activities just mentioned. The Board further found that Keeler's activities in general were directly related to the employees' legitimate interests in terms and conditions of employment and that it was not his prime motive to advance his personal interest by establishing himself as union steward and so assuring employment on the regular list. These findings are supported by evidence and we accept them.
Upon the basis of them and other findings of like tenor, the Board concluded, "Keeler's activities, therefore, fall within the protected ambit of concerted activities as defined in Section 7 of the Act." This ruling raises the question to be decided by this court, Was Keeler in his contacts with other employees engaging in concerted activities for the purpose of mutual aid or protection within the meaning of Section 7 of the National Labor Relations Act?
We look in vain for evidence that would support a finding that Keeler's talks with his fellow employees involved any effort on his or their part to initiate or promote any...
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