NLRB v. Big Three Industrial Gas & Equipment Company

• Decision Date: 02 January 1969
• Docket Number: 25860.,No. 25859,25859
• Citation: 405 F.2d 1140
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE INDUSTRIAL GAS & EQUIPMENT COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

405 F.2d 1140 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG THREE INDUSTRIAL GAS & EQUIPMENT COMPANY, Respondent.

Nos. 25859, 25860.

United States Court of Appeals Fifth Circuit.

January 2, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, David C. Nevins, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Elliott Moore, Atty., N.L.R.B., for petitioner.

Charles R. Vickery, Jr., Vickery & McConnell, Houston, Tex., for respondent.

Before GEWIN, PHILLIPS^* and GOLDBERG, Circuit Judges.

PHILLIPS, Circuit Judge:

These consolidated cases are before the Court on the petitions of the National Labor Relations Board for enforcement of two orders issued in separate proceedings against Big Three Industrial Gas & Equipment Company (The Company). For a complete recitation of facts reference is made to the decisions and orders of the Board reported at 165 N.L.R.B. No. 3 and 165 N.L.R.B. No. 113.

The Company is a Texas corporation maintaining its principal office and place of business at Houston, Texas, where it is engaged in the manufacture of oxygen, acetylene and argon gasses. One of the present cases originated at the Houston plant and the other at the Beaumont plant. This Court granted partial enforcement of a previous order of the Board against the Company, growing out of activities at its plant at Orange, Texas, in an opinion published at N.L. R.B. v. Big Three Welding Equipment Co., 5 Cir., 359 F.2d 77 (1966).

The Board found that the Company violated § 8(a) (1) and (3) of the Act by discharging employees James Marsh, Justine Rodgers and Dewey Chance because of their union activities. Reinstatement of all three employees with backpay was ordered. The Board further found that the Company violated § 8(a) (1) of the Act by interrogating employees concerning union membership and activities, by inquiring about their statements made to agents of the Board and by creating the impression of surveillance of Union activities.

We grant enforcement of those parts of the orders dealing with the § 8(a) (1) violations and directing the reinstatement of Dewey Chance with backpay. The facts concerning the discharge of James Marsh and Justine Rodgers will be discussed in further detail.

Marsh was employed as a truck driver by the Company from November 22, 1965, until his discharge on April 26, 1966. The employer contends that Marsh, who had received six traffic tickets for moving violations within three years and four within a one year period, was discharged solely because of his record of repeated and habitual traffic offenses. The Board found that the real reason for Marsh's discharge was because of his efforts to aid the Union in organizing the Company's truck drivers and to discourage participation in activities on behalf of the Union.

On April 14, 1966, Marsh was hospitalized because of injuries suffered by him when his co-driver overturned one of the Company's trucks. Marsh was in the sleeping compartment at the time. On April 22, 1966, the day after Marsh was released from the hospital, Marsh had coffee at a restaurant with two other drivers and advocated unionization of the drivers. When one of the drivers reported for work, supervisor Kominczak told him that he knew that he had been with Marsh at the restaurant and indicated that he knew that Marsh was "the one that's pushing the union."

Later that day Marsh met again with the same two drivers at another restaurant. Supervisor Kominczak learned that they had talked about the Union and that Marsh had given one of the drivers an authorization card to sign. Kominczak remarked that if Marsh "has got time to campaign for the Union he has got time to be back for work." On April 26 Marsh was discharged on the ground that he had too many traffic violations according to a record just received by the Company from the Texas Department of Public Safety.

Even though the Company had a valid ground for discharging Marsh for his traffic violations, if the actual reason for the discharge was because of Union activities, it was a violation of § 8(a) (3). N. L. R. B. v. Longhorn Transfer Service, Inc., 5th Cir. 1965, 346 F.2d 1003, 1006; N. L. R. B. v. Linda Jo Shoe Co., 5th Cir. 1962, 307 F.2d 355.

We conclude that substantial evidence on the record as a whole supports the conclusion of the Board that the Company had knowledge of the activities of Marsh in promoting the Union among other drivers, and that the moving cause and dominating motive for his discharge was for the purpose of retaliation against his pro-union advocacy and to discourage participation in activities in behalf of the Union.

Our agreement with the conclusion of the Board as to the discriminatory discharge does not mean, however, that we must enforce that part of the order directing his reinstatement. The record shows that Marsh was convicted of four traffic violations within a twelve month period and was an habitual traffic violator under the terms of Vernon's Annotated Texas Civ. Statutes Art. 6687b, § 22(b) (4).¹

Marsh admitted his traffic violations:

"Well, along about that time I mentioned to Mr. Kominczak that I might have to have a little time off in order to straighten up my driving record, and he asked me what happened, and I told him that I had had quite a few traffic violations and that the State might take my driving license away from me if I

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