NLRB v. Materials Transportation Company

• Decision Date: 07 July 1969
• Docket Number: No. 26862.,26862.
• Citation: 412 F.2d 1074
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MATERIALS TRANSPORTATION COMPANY, and Cement Trucking Company, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 1074 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MATERIALS TRANSPORTATION COMPANY, and Cement Trucking Company, Respondents.

No. 26862.

United States Court of Appeals Fifth Circuit.

July 7, 1969.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Nancy M. Sherman, Mitchell L. Strickler, Attys., N.L.R.B., Washington, D.C., Clifford Potter, Director, Region 23, N.L.R.B., Houston, Tex., for petitioner.

L. G. Clinton, Jr., Fulbright, Crooker, Freeman, Bates, & Jaworski, Kenneth R. Carr, Houston, Tex., Scott Toothaker, Ewers, Toothaker, Ewers, Abbott & Evins, McAllen, Tex., for respondents.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

DYER, Circuit Judge:

This case is before us upon the petition of the National Labor Relations Board for enforcement of its order.¹ The Board found that the Company had violated Section 8(a) (1) and 8(a) (3) and (1) of the Act.

The Company is a trucking firm which hauls bulk and sack cement for its sole customer, Centex Cement Corporation.² In early 1966 the Company's volume of business began to decrease. This decrease was precipitated by three factors: a business slow-down in the cement industry, Centex's utilization of an alternative method of transporting cement, and the completion of a dam project which used 50,000 barrels of bulk cement in 1965.

In late May or early June the Union began an organizational campaign among the Company's drivers.³ On June 10, 1966, Bomer, a driver and union activist, was laid off. On June 21, 1966, five other employees were laid off.⁴ The Company urges that these layoffs together with others effected before June 21, 1966, were necessitated by the decrease in the volume of the Company's business and that they were given to the employees with the worst work records.⁵ The Board contends that the five were discriminatorily laid off in violation of 8(a) (3) and (1) of the Act.

The Company does not contest, and the record fully supports the Board's determination that the Company violated 8(a) (1) of the Act by interrogating and threatening three employee drivers, Bazan, Shipp and Bomer. All of the interrogations took place, however, after the last of the layoffs had been made, i.e., Bazan's one week later, Bomer's three weeks later, and Shipp's one month later. Of the three, Bomer was the only one laid off. Against this background we proceed to the 8(a) (3) violations found by the Board contrary to the findings of the Trial Examiner.

The threshold question is whether there is substantial evidence in the record to support the Board's contention that the layoffs were discriminatory in nature and not motivated by economic necessity. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The evidence will support no other finding than that the layoffs were because of economic conditions. The General Counsel conceded this at the hearing.⁶ The Board's attempt to circumvent this admission miss the point. It is true that originally the General Counsel proceeded on the theory that the layoffs were discriminatory by their very nature. However, after all of the evidence concerning the layoffs had been received, the General Counsel candidly admitted that they were made for economic reasons. We agree with the Board, however, that the General Counsel did not concede that there was no discrimination in the timing of the layoffs or the choice of the drivers to be laid off, but these are different questions and will be dealt with later. The evidence indicating that the layoffs were economic in nature was overwhelming. All of the witnesses agreed that business was not good during the time preceding the layoffs.⁷ The Company guaranteed the drivers forty hours of work each week, but business had become so slow that many of the drivers were not getting their forty hours of work. The Company, however, paid the men for forty hours regardless of how many hours they actually worked.

It was uncontroverted that the cement business had been slow, that a dam project which Centex had furnished with 50,000 barrels of cement in 1965 required only 5,000 barrels in 1966, and that Centex was using an alternative method to transport its cement.⁸ These three factors decreased the Company's volume of business by about fifteen percent.

The Board contends that all of the economic conditions which led to the decrease in the Company's business were present in January, 1966, and that any economic layoff would have had to occur in January and not in June. There is no evidentiary basis to support the Board's position that the Company's decrease in business was final, irreversible and predictable in January, 1966. There is evidence, however, that other employees had quit or been discharged prior to June. General Electric Co. v. N.L.R.B., 5 Cir. 1968, 400 F.2d 713, relied on by the Board, is inapposite. There the Company had for seven months failed to meet the urgent demands of employees for a wage increase and then suddenly granted a unilateral wage increase after the union had won the election and one day before the union was certified. Given the economic necessity which existed in the case sub judice, it was management's function to decide at what point the slowdown became sufficiently protracted to require a decrease in personnel. Management decisions are not subject to the second-guessing of the Board or the Courts unless it is shown by substantial evidence in the record as a whole that the decisions violate the Act. N.L.R.B. v. McGahey, 5 Cir. 1956, 233 F.2d 406. Satisfied that all of the evidence in the record shows that the layoffs were motivated by economic necessity, we proceed to examine the Board's contention that the Company discriminatorily chose the drivers to be laid off on the basis of their union activity.

The Board alternatively contends that even if the layoffs were economically justified, the Company discriminatorily chose the five drivers to be laid off solely on the basis of their union activity. The Board seems to take the position that once the Company is shown by substantial evidence to harbor anti-union animus, any layoffs thereafter violate 8(a) (3) of the Act. However, this blanket approach does not relieve the Board of its burden of proving illegal motives in the discharge. We have on many occasions granted enforcement of the Board's order concerning 8(a) (1) violations while at the same time denying enforcement as to alleged 8(a) (3) violations. N.L.R.B. v. Camco, Inc., 5 Cir. 1965, 340 F.2d 803, cert. denied 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339; N.L.R.B. v. Atlanta Coca-Cola Bottling Co., 5 Cir. 1961, 293 F.2d 300; N.L.R.B. v. McGahey, supra. An employer's general hostility to unions, without more, does not supply an unlawful motive as to discharges, N.L.R.B. v. Monroe Auto Equip. Co., 8 Cir. 1966, 368 F.2d 975; N.L.R.B. v. Little Rock Downtowner, Inc., 8 Cir. 1965, 341 F.2d 1020; N.L.R. B. v. Mt. Vernon Telephone Corp., 6 Cir. 1965, 352 F.2d 977; Beaver Valley Canning Co. v. N.L.R.B., 8 Cir. 1964, 332 F. 2d 429. Business judgment cannot be condemned merely because it coincides with anti-union sentiment. N.L.R.B. v. Birmingham Publishing Co., 5 Cir. 1959, 262 F.2d 2.

The Board has the burden of showing: (1) that the Company had knowledge of the employees' union activity; and (2) that the employees were discriminatorily chosen to be laid off because of their union activity. N.L.R.B. v. Whitfield Pickle Co., 5 Cir. 1967, 374 F.2d 576. To show discrimination the Board must prove that the employee would have been treated differently in the absence of union activity. Frosty Morn Meats, Inc. v. N.L.R.B., 5 Cir. 1961, 296 F.2d 617.

The Board's contention that the five drivers were the victims of a blanket discharge for their union activity is not supported by substantial evidence in the record.

There was no evidence that the Company had knowledge of any union activity on the part of Marshall and Harding, two of the employees who were laid off on June 21. The Board tacitly admits that the Company had no knowledge of Marshall's union activity. The Board makes no explanation as to why Harding was not included in its order.

Harrison and Flores were known to be attending the union meetings, yet neither of these drivers was laid off. Shipp and Bazan, whose separate interrogations by Newkirk constituted the basis for the Board's findings of violations of 8(a) (1), were not laid off either.

A majority of the Company's employees were known by management to be attending the union meetings. Over eighty percent of the Company's employees were union adherents.⁹ Where such a great percentage of employees attend union meetings and are union adherents, Company knowledge of the identity of the union adherents loses much of its significance without a showing that the employees not in favor of the union were more logical candidates for layoffs, N.L.R.B. v. River Togs, Inc., 2 Cir. 1967, 382 F.2d 198, a showing that was not made here. We reject the Board's contention that the Company made a discriminatory blanket discharge of union adherents and proceed to consider the layoffs individually.

The Board, contrary to the Trial Examiner's finding, determined that Bomer, Kerley, Boykin, Pena and Marshall were laid off because of their union activities. The Trial Examiner's findings are to be reviewed as a part of the record, and must be considered by us in assessing the substantiality of the evidence supporting the Board's decision. Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456; Dobbs Houses, Inc. v. N. L. R. B., 5 Cir. 1963, 325 F.2d 531, 537. Where the Board and the Trial Examiner reach different conclusions, if the Board's conclusions are supported by substantial evidence in the record considered as a whole, we must grant enforcement. N. L. R. B. v. Miami Coca-Cola...