Nix v. NLRB
| Decision Date | 19 November 1969 |
| Docket Number | No. 26788.,26788. |
| Citation | 418 F.2d 1001 |
| Parties | Franklin W. NIX and IAM Representatives Association, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William M. Pate, Mitchell, Clarke, Pate & Anderson, Atlanta, Ga., for petitioners.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, 10th Region, N. L. R. B., Atlanta, Ga., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Marjorie S. Gofreed, Attys., N. L. R. B., for respondent.
Platon E. Papps, Bernard Dunau, Washington, D. C., Marjorie S. Gofreed, N. L. R. B., for intervenor.
Before RIVES, COLEMAN and MORGAN, Circuit Judges.
Petitioners Nix and the IAM Representatives Association (hereinafter the "Association") request this Court, pursuant to 29 U.S.C.A. § 160(f), to review an order of the National Labor Relations Board (hereinafter the "Board"). The employer before the Board is itself a labor organization, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter IAM). IAM was charged with interference with organizational efforts of its own employees. The charges included refusal to bargain with the union designated by its employees §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act and the discriminatory discharge of two of IAM's employees who were also representatives of the Association, Franklin W. Nix and William E. Sewell §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act. The Board found an 8(a) (5) refusal to bargain violation limited to the failure of the employer to produce certain requested information and records relevant to bargaining. The request for review does not involve this finding and order of the Board. The Board also found that the employer IAM had not violated the Act in discharging employees Nix and Sewell. This petition for review involves only the discharges of Nix and Sewell.
IAM is a large union with headquarters in Washington, D. C., and until September 1965 was divided into eight administrative territories with an elected vice-president heading each territory. IAM, also known as the Grand Lodge, employs about 230 Grand Lodge representatives, special representatives and press representatives who perform the usual functions of the union in the field — organizing, servicing local unions, handling grievances, negotiating contracts, etc. These field staff employees are under the direction of each regional vice-president and are required to be members of the IAM. Their duty is to promote and execute the policies of the union president and executive counsel at all times.
Nix had been employed since 1955 as a press representative in IAM's southern territory with headquarters in Atlanta. Sewell had been employed since 1954 as a Grand Lodge representative and was three times appointed acting vice-president of the southern territory. Both were interested and participated in organizing activities of the Association. Recognition of the Association by IAM was demanded by the field staff employees in July 1965, and in January 1966 a petition for representation in a nationwide unit was filed with the Board. Hearings were held, a nationwide unit was found appropriate and an election was directed. The Association received a majority of votes and was certified in August 1966 as the bargaining representative of IAM's field staff employees. Nix was elected secretary-treasurer of the Association and Sewell, Chairman of the negotiation committee.
The factual background of Nix's discharge is briefly outlined as follows. IAM vice-president Watkins arrived in Atlanta in July 1964, as officer in charge of the southern territory. Shortly after Watkins' arrival, Nix noticed a diary on Watkins' desk in which he kept a running account of activities in IAM, comments on his political status and other items related entirely to his personal life. Nix, and other employees at Nix's direction, began to copy items from the diary (by hand and by a photocopying device) with a view to bringing Watkins' deficiencies to the attention of other IAM officers. On July 9, 1965, at a meeting called at the request of Nix, Nix presented to IAM's resident vice-president Matthews and general secretary-treasurer DeMore a 48-page document containing Xeroxed and typed copies of Watkins' diary and stated that Watkins was unfit to administer the southern territory. Nix told the two officers that he had taken the information from Watkins' diary without his permission. At this same meeting, Nix announced the initiation of a campaign to organize the IAM staff representatives and noted that he was in charge of the campaign.
On July 12, 1965, DeMore and Matthews reported their conversation with Nix to IAM president P. L. Siemiller, and all three agreed that Nix's action with regard to Watkins' diary warranted discharge. Siemiller, however, in view of Nix's simultaneous organizational activities decided that no immediate action should be taken against him (or IAM would face an unfair labor practice charge). Siemiller had received a letter from Nix on July 10, 1965, informing Siemiller of the organizational activities and warning that reprisals against Nix would be met by the filing of unfair labor practice charges.
On later occasions, the IAM Executive Council received a full report on Nix's charges against Watkins and the manner in which Nix had procured his material. On two separate occasions the IAM Council was unanimous in condemning Nix but adopted Siemiller's view that, due to Nix's organizing activities with the Association, it would not be advisable to discharge him at that time. Siemiller appointed a committee to investigate the charges against Watkins and disbanded the southern territory. On September 21, 1965, Sewell approached a member of this Committee and stated that, if Watkins were eliminated as vice-president, the Committee would then be in a position to make an agreement with the Association to end its organizing activities.
When the southern territory was disbanded, under instructions from president Siemiller, Nix remained at home awaiting an additional assignment. Although Nix remained on the payroll, he received no other work assignment during his remaining year of employment.
On January 6, 1966, the investigating committee issued a report exonerating Watkins of fraud or criminal misconduct. Also, on January 6, Nix at his own request met with Siemiller and two other IAM officers. Nix stated that he had lost interest in a staff union since he had achieved his main object of securing Watkins' removal from the southern territory and agreed to secure the dissolution of the Association if Siemiller would instead recognize an informal grievance committee. Siemiller declined Nix's offer. On January 11, Nix, directly contradicting these remarks, in a telegram to Siemiller claimed majority status of the Association and stated that a petition for certification had been filed with the Board. Nix also renewed his demand for the removal of Watkins from office.
The Association filed an election petition for a nationwide unit and, after receiving a majority vote in the election, was certified in such unit on August 5, 1966. On August 31, Siemiller informed Nix that he was being discharged effective September 15. The reasons given for discharge were that the vice-president in charge of the territory where Nix was located had no assignments for press representatives and thus no need for Nix's services.
The Association petitions also for a review of Sewell's discharge. Sewell, employed by IAM as a Grand Lodge representative, joined the Association from its inception in July 1965, and his membership was known to IAM officials. As chairman of the negotiation and grievance committee of the Association, Sewell in a letter to Siemiller on December 5, 1966 requested a meeting to negotiate a contract. In addition, Sewell in his official capacity with the Association also requested information for use in bargaining. These requests were rejected in most respects by IAM.
The factual background of Sewell's discharge can be summarized as follows. Sewell received a reprimand from Siemiller on December 13, 1966, because of the brevity of his weekly reports, and was discharged on January 4, 1967, for refusing to carry out the IAM Executive Council's decision to secure elimination of IAM's post convention referendum.1
In October and November of 1966 the staff representatives of IAM (including Sewell) were informed of the necessity of eliminating the post-convention referendum and the support required of all staff representatives in working for its defeat. Siemiller, in a letter to Sewell on December 22, 1966, stated that he had received reports that Sewell was opposing the elimination of the referendum and requested him "to report to this office if you have been advising local lodges to vote against the proposition in January; and if you have been opposing the elimination of the referendum, give reasons for such position." Sewell replied that he had not discussed the referendum with local lodges, but had done so with many individual members, urging that the referendum not be eliminated. On January 4, Siemiller discharged Sewell for actively supporting the referendum and thereby refusing to carry out the decision of the Executive Council.
The complaint before the Board alleged that, in its capacity as an employer, IAM discharged employees Nix and Sewell because of their membership in and activities on behalf of the Association. The Board, affirming the trial examiner's finding, held that Nix was discharged for pilfering documents from his superior at IAM and not because of his union membership and activity. International Ass'n of Machinists, 172 N. L.R.B. No. 239, 1968-2 CCH NLRB Dec. ¶ 20,187. A majority of the three-member panel, with the chairman...
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