NLRB v. Aycock

• Decision Date: 15 May 1967
• Docket Number: No. 20653.,20653.
• Citation: 377 F.2d 81
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Thomas J. AYCOCK, Jr., an individual, d/b/a Vita Foods, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 81 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Thomas J. AYCOCK, Jr., an individual, d/b/a Vita Foods, Respondent.

No. 20653.

United States Court of Appeals Fifth Circuit.

May 15, 1967.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Janet A. Kohn, Edith Cash, Attys., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Allison W. Brown, Jr., Peter M. Giesey, Attys., N. L. R. B., for petitioner.

David A. Bartholf, Hamilton & Bowden, Jacksonville, Fla., for respondent.

Before GEWIN and GOLDBERG, Circuit Judges, and SPEARS, District Judge.

GOLDBERG, Circuit Judge:

Thirty-six months ago and about forty volumes back in the Federal Reporter, our relatively simple per curiam opinion, we thought, had ended this case.¹ National Labor Relations Board v. Aycock, 5 Cir. 1964, 328 F.2d 314. Compliance with the reinstatement order which we there enforced, however, has spawned a more complicated question which we now must answer.

We state the facts relevant to the present action. Thomas J. Aycock, Jr., the respondent, owns and manages a Jacksonville, Florida, business known as Vita Foods. Vita makes and sells jellies, preserves, mayonnaise, and salad dressing, and packs prune juice. Aycock employs 20 to 25 people in this business.

During a union organizational campaign in 1961, the Board subpoenaed John Mathis, a Vita employee, to testify at a hearing. Mathis went to the hearing, which was held on April 27. On April 28, the respondent transferred Mathis from his position as capping machine operator to that of cook's helper, a more odious job at the same rate of pay.

On May 11, the union filed charges that this transfer violated § 8(a) (1), (3), and (4) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. On June 8, Mathis was offered the position of truck driver, again at the same rate of pay. When this offer was made he was asked by John Chancellor, the plant superintendent, whether he had a driver's license. Mathis replied that he had one and accepted the position. On July 26-28, the Board held a hearing on the unfair labor practice charges. (There were other § 8(a) (1), (3), and (4) charges besides those concerning Mathis.)

Mathis held the truck driver's job without incident until Friday, September 22. On that date the union election was held, which the union lost 13-10. Later in the day, after the election, Mathis was told to deliver certain Vita products to two customers. Mathis opined that it was so late in the afternoon that Setzer, one of the customers, would not take delivery. Chancellor told Mathis to attempt the delivery anyway. Mathis made the attempt, but was told by Setzer that delivery would not be accepted.

Mathis then proceeded to the second customer, but the truck was loaded in such a fashion that the Setzer order had to be unloaded before the other order could be reached. After the latter was unloaded, Mathis and his helper reloaded the Setzer order and drove back to the Vita plant. Upon Mathis' return, it appeared that the Setzer order in the back of the truck had been jostled about. The packages were in disarray; some were damaged and some of the glass jars containing jelly had been broken. Aycock berated Mathis in strong terms for his apparent negligence, but nothing further happened at that time.

Mathis testified that on Monday morning, upon reporting to work, he told Chancellor that he did not want to drive the truck any more because he had not liked the way Aycock had talked to him. Chancellor replied that both Mathis and Aycock were tense over the union problem. Then, Mathis delivered the Setzer order; on his return he spoke to Aycock. Aycock said he thought Mathis' attitude was not satisfactory, and asked Mathis to show him his driver's license. Mathis replied that he had left his license and wallet at home. Aycock told Mathis that he could not drive the truck without a license and drove Mathis home to pick up the license. Mathis, after remaining in his house for about fifteen minutes, came out and said that his wallet had been stolen and that the license was in it. Aycock drove back to the plant, where Mathis asked permission to punch out and go to get a "duplicate" license. Aycock granted the permission, and Mathis left. He did not return to work. He did come back to the plant the next Friday, but only to pick up what pay was due him. Mathis testified that he thought Aycock had fired him when they returned from Mathis' search at his home for the license, even though a few minutes later Mathis requested and was given permission to get a duplicate. It later appeared that Mathis' driver's license had expired long before the period relevant to this action, and that Mathis was at all times aware of that fact.

After leaving Vita, Mathis held a series of lower-paying jobs, generally earning less than he would have had he remained as a truck driver with Vita.

On November 13 the Trial Examiner held that the transfer of Mathis from his original capping machine operator's position to that of cook's helper violated § 8(a) (1), (3), and (4), and ordered reinstatement. Even though Mathis had been transferred from the cook's helper's position to the truck driver's position more than a month and a half before the July, 1961, hearing, and even though this was known to the parties and the Examiner at the hearing, the question of whether that transfer constituted reinstatement within the meaning of the Act was not then litigated.²

The Board affirmed the Trial Examiner on February 28, 1962; precisely two years later we enforced the Board's holding. Less than a month after our decision, on March 17, 1964, Mathis accepted Aycock's offer of a case-sealing job as "reinstatement."

The present action arose from the controversy over the back pay due Mathis for the period from April 28, 1961 (when he was made a cook's helper) to March 17, 1964, when he was "reinstated."

The Trial Examiner in the present action found, and the Board agreed, that Mathis' acceptance of the truck driver's job did not constitute reinstatement. The Trial Examiner also found, however, that Mathis voluntarily quit the truck driver's position, that this quitting tolled the respondent's back pay liability, and that the total back pay owed Mathis was $2.50. The Board disagreed on this point, holding that Mathis' quitting was a consequence of the original discrimination and was therefore justified. The Board concluded that respondent's back pay liability was not tolled and assessed the back pay owed Mathis at $2,848.54, with 6% interest. The Board petitions for enforcement.

We agree that the truck driver's job was not reinstatement within the meaning of the Act. We hold, however, that the Board erred in finding from the record that Mathis' departure from the truck driver's job was a consequence of the respondent's discrimination. We agree with the Trial Examiner's finding that the quitting was voluntary and unrelated to the discrimination and that it tolled the back pay liability of the respondent. We grant enforcement of the back pay order only to the extent of the $2.50 award, plus interest, as found due by the Trial Examiner.

We deal with the issues in order of increasing difficulty.

The Trial Examiner found, and the Board agreed, that Mathis' acceptance of the truck driver's job did not constitute a reinstatement within the meaning of the Act. We agree. Substantial evidence on the record as a whole supports the conclusion that the duties of the two jobs were dissimilar. Compare Barker's East Main Corp., 1962, 136 NLRB 494, 503-4. That their pay was the same is not sufficient.³

With regard to back pay, the Board's position vis-a-vis its trial examiner is somewhat unclear. The general counsel appears to contend alternatively: first, that the trial examiner was incorrect in his finding of fact that Mathis left the truck driver's job for personal reasons not connected with the prior discrimination. The general counsel claims that Mathis was actually or "constructively" discharged for reasons attributable to the discrimination, using the following argument: The cook's helper's job was so odious that to escape it Mathis was willing to take a job for which he was unqualified; for this reason he took the truck driver's job even though he had no driver's license. When his employer discovered this lack of qualification Mathis lost the truck driver's position. Therefore, Mathis' departure from the truck driver's job was a direct result of his having justifiably sought escape from the cook's helper's job.

The trouble with this argument is not its reasoning but its factual underpinning. The Trial Examiner did not find that Mathis lost the truck driver's job because he was unqualified for it; he did find that Mathis walked off the job because "he knew he had lied to his employer as regards his driver's license, which fact played upon his conscience to such an extent that inwardly he was persuaded to leave his job with the respondent and thus avoid further discussion in this regard with either Aycock or Chancellor, and thus, temporarily at least, satisfy his inner self."

In other words, the Trial Examiner found that the gist of the reason for Mathis' departure from his job did not concern his lack of qualification but rather his desire not to confront his superiors after having been exposed in a knowing lie about the license. The Trial Examiner pungently explained his conclusion that Mathis voluntarily left work without being fired, or "constructively discharged":

"In all the circumstances discussed, described, and found above, I, after long and careful consideration, am convinced and find that Mathis misinterpreted what Aycock said to him in their conversations on Monday, September 25, 1961, and that Aycock did not discharge Mathis at the time in question. The resolution of the issue as to the credibility of the witnesses Mathis and Aycock has been most

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