Southern Tours, Inc. v. NLRB

• Decision Date: 21 November 1968
• Docket Number: No. 25216.,25216.
• Citation: 401 F.2d 629
• Parties: SOUTHERN TOURS, INC. and Gulf Coast Motor Lines, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD and Amalgamated Transit Union Local Division 1326, Amalgamated Transit Union, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.2d 629 (1968)

SOUTHERN TOURS, INC. and Gulf Coast Motor Lines, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD and Amalgamated Transit Union Local Division 1326, Amalgamated Transit Union, AFL-CIO, Respondents.

No. 25216.

United States Court of Appeals Fifth Circuit.

October 7, 1968.

Rehearing Denied November 21, 1968.

COPYRIGHT MATERIAL OMITTED

Wm. Terrell Hodges, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for petitioners.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Richard N. Chapman, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Michael N. Sohn, Atty., N.L.R.B., for respondents.

Before THORNBERRY and SIMPSON, Circuit Judges and SUTTLE, District Judge.

THORNBERRY, Circuit Judge:

This case arose as a result of a series of unfair labor practices charged against Southern Tours, Inc. and Gulf Coast Motor Lines, Inc. hereinafter referred to as "the Company" by the Amalgamated Transit Union, Local Division 1326, AFL-CIO for violation of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), 158(a) (3), 158(a) (5). The Union alleged (a) that officials of the Company violated Section 8(a) (1) of the Act by coercively interrogating employees concerning their union activities, promising pay raises and other benefits conditioned on withdrawal from the Union, correcting grievances in order to induce withdrawals from the Union, creating the impression of surveillance, engaging in surveillance of union activities, and threatening to eliminate work and to furlough or discharge employees; (b) that the Company violated section 8(a) (3) by discharging three employees and temporarily suspending two others; and (c) that the Company failed to bargain in good faith with the Union in violation of section 8(a) (5).

With a few minor exceptions, the trial examiner found that the Company had violated the Act in each particular alleged in the complaint. The Board reversed in part and affirmed in part. The Board agreed that the Company failed to bargain in good faith in violation of section 8(a) (5). It also agreed that the Company had violated section 8(a) (1) in some respects, but disagreed in others. Finally, the Board reversed the examiner's finding that the Company unlawfully discharged two employees and suspended two others, but affirmed the finding that Wayne Hutchens had been discharged in violation of sections 8(a) (3) and (1). The Company appeals only that part of the Board's decision and order finding that Wayne Hutchens was unlawfully discharged. We enforce.

I. Discharge of Wayne Hutchens

Wayne Hutchens suffers from a limp as a result of childhood polio. Nevertheless, he has successfully driven a bus for nineteen years and had been repeatedly and regularly certified as physically fit to drive. For the last nine years he has been employed by Gulf Coast Motor Lines, Inc. as a driver and has never been involved in an accident for which he was at fault. Although some of his leg muscles are impaired, he has developed a strong substitute muscular pattern that enables him to raise his foot sufficiently to rotate it between the accelerator and the brake pedal.

In April, 1966 Hutchens was asked by a passenger, who had noticed his limp, whether he had a doctor's certificate. Hutchens exhibited the certificate to the passenger, who raised no further complaint. Hutchens related the incident to terminal manager Chick, and Chick in turn mentioned the incident to the owner Shouppe. On May 5, Hutchens was called into Shouppe's office and questioned about the incident. Shouppe stated that because Hutchens' certificate had been challenged he would have to undergo another physical examination, to which Hutchens agreed. Shouppe made the necessary arrangements and told Dr. Clegg that Hutchens' right to drive had been challenged by a passenger who had noticed the limp. During the course of the examinations, Hutchens was asked to raise his right leg in a horizontal position, which he was unable to do. On the basis of this examination, Dr. Clegg advised Shouppe that Hutchens was not qualified to drive a bus. Hutchens was subsequently discharged.

The Company contends that Hutchens was discharged for cause within the meaning of section 10(c) of the Act since he failed to pass the physical examination required of drivers. We hold, however, that there is substantial evidence in the record as a whole to support the findings of the Board that Hutchens was discharged in violation of section 8(a) (3). Hutchens had initiated the organizing campaign and actively solicited employees to sign union authorization cards over a two-month period. As the Board found, Shouppe and other Company officials exhibited extreme antiunion hostility. This antiunion animus could properly be considered by the Board in determining that the discharge was motivated by Hutchens' union activities. See NLRB v. O. A. Fuller Super Markets, Inc., 5th Cir. 1967, 374 F.2d 197, 200; NLRB v. Brennan's Inc., 5th Cir. 1966, 366 F.2d 560, 564; NLRB v. Durant Sportswear, Inc., 5th Cir. 1966, 358 F.2d 729, 730; NLRB v. Plant City Steel Corp., 5th Cir. 1964, 331 F.2d 511, 514.

There was evidence in the record that Shouppe knew Hutchens played a dominant role in the union campaign. Shouppe interrogated the employees extensively and kept active surveillance of the union activities. These factors are significant in determining whether there is a reasonable inference that the Company knew of Hutchens' activities. See NLRB v. Durant Sportswear, Inc., 5th Cir. 1966, 358 F.2d 729, 730. Moreover, there was direct evidence that Shouppe learned of Hutchens' dominant role in the union campaign from interrogation of one of the employees.

The Company's main argument is that Hutchens was discharged after he failed to pass the physical examination in May, 1966. Hutchens was scheduled to take a physical examination in any event in November, 1966 since his medical certificate expired then. The Company argues that he was required to take the accelerated examination because one passenger asked to see his medical certificate, and Shouppe therefore became fearful of the possible reaction of a jury to Hutchens' limp in the event of some future lawsuit. There is evidence in the record to indicate, however, that Shouppe learned of Hutchens' limp and asked to see his medical certificate five months prior to the accelerated examination. Thus if Shouppe was really concerned about the possible adverse legal effect of a bus driver with a limp, he might have required Hutchens to take a physical examination immediately. Moreover, if the passenger's inquiry had really triggered concern over jury reactions, one could expect that all drivers with visible infirmities would have been sent for immediate reexamination. Yet the Company exhibited no like concern with respect to Swickheimer, who also drove a bus and who had a limp and wore a brace on one of his legs. Therefore, we find that the proximity in time of the accelerated examination to Hutchens' union activity and...