Trailmobile Division, Pullman Incorporated v. NLRB

• Citation: 407 F.2d 1006
• Decision Date: 20 February 1969
• Docket Number: No. 25470.,25470.
• Parties: TRAILMOBILE DIVISION, PULLMAN INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

407 F.2d 1006 (1969)

TRAILMOBILE DIVISION, PULLMAN INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 25470.

United States Court of Appeals Fifth Circuit.

February 20, 1969.

Charles M. Lanier, New Orleans, La., Hulse Hays, Jr., Alan E. Harazin, Cincinnati, Ohio, for petitioner, Taft, Stettinius & Hollister, Cincinnati, Ohio, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Washington, D. C., for appellee.

Before GEWIN and BELL, Circuit Judges, and BOOTLE, District Judge.

BOOTLE, District Judge:

This case is before the court on the petition of Trailmobile to review and set aside an order of the National Labor Relations Board and on the cross-petition of the Board to enforce the order. The Board's decision and order are reported at 168 NLRB No. 31. The petition to review and set aside will be granted in part and denied in part; the petition to enforce will be granted in part and denied in part.

The labor relations difficulties being experienced at the Longview, Texas plant of petitioner have been considered by this court in two recent opinions. See Trailmobile Division, Pullman Incorporated v. NLRB, 379 F.2d 419 (5th Cir. 1967), (order to bargain set aside); Trailmobile Division, Pullman Incorporated v. NLRB, 389 F.2d 195 (5th Cir. 1968), (order involving § 8(a) (1) violations enforced; order involving § 8(a) (3) and (1) violation denied enforcement).

This most recent chapter in the continuing struggle between Trailmobile and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, involves an economic strike and the failure to reinstate employees to their former positions either in whole or in part. It also involves an order finding coercive interrogation of one employee and the improper disciplining of another.

The record supports the finding of coercive interrogation in violation of § 8(a) (1) of the Act with respect to employee Hill and the order is due to be enforced as it respects this activity. 29 U.S.C.A. § 158(a) (1); NLRB v. Harbison-Fischer Manufacturing Company, 304 F.2d 738 (5th Cir. 1962).

Another § 8(a) (1) violation rests on the disciplining of union secretary Green for attempting to present employee grievances to the company. Green was elected secretary of the union in 1965. Between January and July of 1966 he attempted on three separate occasions to present grievances on behalf of other employees to management. One grievance centered around Green's contention that welders were not being promoted from within the plant ranks; on another occasion he complained of written reprimands being given to two fellow employees; and another involved the seniority rights of an employee. The third occasion, involving the welders, resulting in the plant superintendent issuing a written warning to Green to the effect that Green was involving himself in matters with which he was not personally concerned. The warning provided that no further harassment of management representatives would be tolerated even if it was necessary to discharge Green.

We have held in at least two cases that the presentation of grievances of the type in question is protected by § 7 of the Act. 29 U.S.C.A. § 157. NLRB v. Laney & Duke Storage Warehouse Co., Inc., 369 F.2d 859, 866 (5th Cir. 1966); NLRB v. Bowman Transportation, Inc., 314 F.2d 497, 498 (5th Cir. 1963). Trailmobile failed to call these cases to our attention; rather it chooses to rely on NLRB v. I. Posner, Inc., 342 F.2d 826 (2d Cir. 1965), where the court pointed out that § 8(a) (5) was restricted to the presentation of grievances by bargaining representatives enjoying majority support. The union there did not enjoy majority status. The employer refused to talk with a group of employees while a union representative was present. This was held not to violate § 8(a) (1). That decision is clearly inapposite for here the attempted presentation of the grievances and the warning occurred during the time when Green was occupying his official status as secretary of the union and during the time when the union was enjoying certification as the bargaining representative. It is true that Trailmobile had refused to bargain and was pursuing its remedy of review and that this court eventually set aside the order. This, however, was much later, in fact on June 21, 1967. We conclude that our prior decisions are controlling; that presentation of the grievances under the circumstances was within the protective ambit of § 7 of the Act. The Board did not err in holding that § 8(a) (1) of the Act was violated by the threat against Green.

The Board found § 8(a) (3) and (1) violations in the refusal to reinstate two employees, Hammock and Hill, to their old jobs following the termination of the economic strike. They were given other and less desirable positions. The record supports this holding of the Board. Trailmobile failed to show "legitimate and substantial business justifications" for its refusal to reinstate them to their former positions. NLRB v. Fleetwood Trailers Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614, 617 (1967); NLRB v. Great Dane Trailers, 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1968).

This leaves for decision the postponed reinstatement of employee Green from January 21, 1966, after the termination of the economic strike on January 20th, until his full reinstatement on January 27, 1966, and the permanent discharges of employees Felts, Gray, and Colley. These four employees were officials of the union: Green, Secretary; Gray, Vice President; Felts and Colley, both trustees, and all four, members of the negotiating committee. On Friday night, November 26, 1965, after spending a substantial portion of the day at the picket booth, these four men engaged in pugilistic and terroristic activities involving three non-union employees, Travis Higginbotham, Gerald Cox, and D. G. Clark, who were continuing to work during the strike, these activities beginning at the Horseshoe Lounge, a Longview night spot, at about 8:30 p. m. and ending on the highway in an adjoining county in front of the home of one of the non-striking employees, D. G. Clark, between 11 and 12 o'clock that night. It will be necessary to outline as briefly as possible some of the evening's activities and in doing so let us note carefully the accounts given by the union men themselves since the examiner chose to accept the testimony of Green, Felts, and Colley, rejecting that of Higginbotham and Clark.

Pausing first at the Pig Trail Inn where they had a beer or two the four striking employees arrived at the Horse Shoe Lounge shortly after 8 p. m. where some of them had another beer. About 8:30 the three non-striking employees, having paused first at the Mardi Gras and having had some beer also, arrived at the Horse Shoe Lounge not knowing of the presence there of the first four men. Felts, Colley, and Green were seated in a booth (Gray was dancing or playing a juke box or both) when Clark, Higginbotham, and Cox walked in through the rear door. The Lounge was dimly lighted and Colley recognized the late arrivals before the latter could see those already present. What happened then is covered by the Examiner's findings as follows:

"the three non-strikers entered the room and paused briefly, looking for a table, then moved toward the bar; as they paused, Colley, who was facing them, said to his companions: `Here come some of our friends\'; Cox walked past the booth but Higginbotham said something to the effect that he did not know they permitted `union men\' in the place; Felts answered that they had as much right to be there `as you scabby sons-of-bitches.\' At this Higginbotham turned to face Felts and said: `You don\'t mean that; stand up and say it,\' whereupon Felts stood up and repeated his statement. Higginbotham then punched Felts in the mouth, breaking his two front teeth, and Felts grabbed Higginbotham around the neck with one arm and punched him in the body several times. At this point the proprietor arrived and pushed the two of them out the front door. Green, Colley, Clark and Cox followed them out."

Colley gives a little fuller account through the first blow as follows:

"A. I told Bobby and Ira Felts that some of our friends just came in. `Rooster\' Clark came on past the table and Travis Higginbotham came past the table and looked back to us and said something to the effect, or the way I understood it "Do they allow these Union guys in here?\'

"Ira Felts replied to him, `We have as much right in here as you sons of bitches.\' Travis proceeded walking on but he stopped and turned around. He asked Felts did he mean that and Felts said, `Yes, I do.\' Travis said, `If you mean that, stand up and say it.\'

"Ira Felts repeated it again; `We have as much right in here as you sons of bitches.\' About that time Travis hit Felts in the mouth. I believe at that time I had stood up also. I started over to where they were, about three or four steps away, and Clark `Rooster\' Clark was on the opposite side of Travis and Felts from where I was.

"The manager was coming over that way and told us to get out. I told the manager we hadn\'t done anything, that they started it, that this guy had hit my friend in the mouth."

* * * * * *

"A. Travis hit Felts in the mouth. I heard Felts ask Travis if that was the best he could do and he got Travis around the neck. They started toward the front door and it was Travis, Felts, and Clark and there was a big crowd ganging up around them."

For what happened in the parking lot let us look first to the testimony of the four striking employees. Green says that upon the manager's interference Felts turned Higginbotham loose and Higginbotham went out the door and Felts went right behind him. After Green got out the...