Teamsters Local Union No. 171 v. N.L.R.B., 87-1522

• Decision Date: 09 December 1988
• Docket Number: No. 87-1522,87-1522
• Citation: 863 F.2d 946
• Parties: 130 L.R.R.M. (BNA) 2033, 274 U.S.App.D.C. 257, 57 USLW 2403, 110 Lab.Cas. P 10,913 TEAMSTERS LOCAL UNION NO. 171, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Appellants, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 946

863 F.2d 946

130 L.R.R.M. (BNA) 2033, 274 U.S.App.D.C.

257, 57 USLW 2403,

110 Lab.Cas. P 10,913

TEAMSTERS LOCAL UNION NO. 171, Affiliated With the International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Appellants, v. NATIONAL LABOR RELATIONS BOARD.

No. 87-1522.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 7, 1988.

Decided Dec. 9, 1988.

Lloyd C. Caudle, with whom, William L. Auten, Charlotte, N.C. was on the brief for petitioner, petitioner A.G. Boone Co.

Kathleen A. Murray, with whom, Jonathan G. Axelrod, Washington, D.C., was on the brief for petitioner/intervenor, Teamsters Local Union No. 171, affiliated with the Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America. John R. Mooney, Washington, D.C., also entered an appearance for petitioner/intervenor Teamsters Union Local No. 671.

William R. Stewart, Deputy Asst. Gen. Counsel, N.L.R.B., with whom Aileen A. Armstrong, Deputy Associate General Counsel and Nancy B. Hunt, Atty., Washington, D.C., N.L.R.B. were on the brief for respondent. Collis Suzanne Stocking and Nancy Hunt, Attys., Washington, D.C., N.L.R.B. also entered appearances for the respondent.

Before EDWARDS, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

On September 24, 1987, the National Labor Relations Board ("NLRB" or "Board") issued a Decision and Order finding A.G. Boone Company ("Company") guilty of a number of unfair labor practices in violation of sections 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. Sec. 158(a)(1), (3) and (5) (1982). In particular, the Board found that the Company had refused to bargain in good faith with Teamsters Local Union 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 171" or "Union"); had unilaterally changed employees' conditions of employment without first notifying and bargaining collectively in good faith with the Union; had discouraged membership in and activities on behalf of the Union; had interrogated employees concerning their Union activities; and had transferred bargaining unit work, laid off and discharged bargaining unit employees and closed the Company's terminal at Montvale, Virginia in order to take reprisal against employees for engaging in Union activities. The Board ordered the Company to resume operations at the closed terminal and to reinstate its laid-off and discharged employees with backpay. The Board refused, however, to include a visitatorial (information gathering) clause remedy in its final Order.

The Union and the Company are now before the court on separate petitions for review: the Union challenges the Board's refusal to include a visitatorial clause remedy in its Order, and the Company challenges the Board's findings of unfair labor practices. The Board has filed a cross-application for enforcement of its Order. With one exception, the Board's judgments are supported by substantial evidence on the record as a whole; therefore, we grant in significant part the Board's cross-application for enforcement and deny for the most part the Company's petition for review. On the Union's petition for review, we remand for further consideration by the Board. We find it unnecessary to decide whether the Company violated section 8(a)(5) when it failed to bargain over the decision to relocate part of its business.

I. BACKGROUND

For many years, the Boone Company has been a contract carrier in the southeastern United States specializing in the transport of groceries and related items. A.G. "Bud" Boone is the owner and president of the Company. Its headquarters and principal terminal are in Charlotte, North Carolina. As a contract carrier, the Company hauls for a limited number of customers, including the Kroger food chain and Kroger subsidiaries, the A & P Tea Company, Winn-Dixie, White House Foods and Chandler Foods.

A. The Board's Findings of Fact

In 1979, the Company opened a terminal in Montvale, Virginia to service a Kroger subsidiary, Westover Dairy, in Lynchburg, Virginia. Eventually, many of the Westover Dairy runs were handled by Montvale drivers. Montvale drivers also hauled some bakery products from Kroger's large bakery at Roanoke, Virginia, until 1986 when the bakery closed; and they hauled fruit juice and other items on backhauls to Kroger's Roanoke suburban warehouse in Salem, Virginia.

The Union did not begin any serious effort to organize the Montvale drivers until early 1986. However, well before the advent of a union, employees were warned against union activity. Two Montvale drivers testified that when they were hired in 1981 and 1982, respectively, they were told of Boone's intention to operate the Montvale terminal as a nonunion facility; the Assistant Terminal Manager, Thomas J. "Jack" Dickenson, told them that if a union ever came into the Montvale terminal, it would be closed. The Administrative Law Judge ("ALJ") described this testimony as "credible." Joint Appendix ("J.A.") 927.

An election was scheduled for April 13, 1986, when Boone refused to recognize the Union without one. While the election campaign was in progress, Kroger provided the Company with some additional business, approximately 20,000 hauling miles per week, in the form of flower delivery runs from the Kroger warehouse in Simpsonville, South Carolina. The Company assigned about a third of this work to the Montvale terminal but did not hire any additional drivers at Montvale to do the work. J.A. 927-29. However, another driver testified that, about a week before the flower runs were scheduled to begin, the Montvale Terminal Manager, James McGalliard, told him and another driver that if the Union was voted in, "the flowers will be the first thing to go," J.A. 155, and that Bud Boone had already told McGalliard that "he wasn't going to give Local 171 one red cent of his money." Id.

In the proceedings before the ALJ, drivers repeatedly testified that members of Company management told them that the Company would close the Montvale terminal if the Union came in. Shortly before the election, Assistant Manager Dickenson told two drivers to "try to talk the Union down because if the Union (was) voted in, Mr. Boone would lock the gate." J.A. 928. Terminal Manager McGalliard told a driver that "if the Union came in, they would close the terminal and he would go back to Charlotte," and was also overheard by one driver telling another driver that "if the Union came in, the drivers would probably be out of a job." Id. Dickenson also told a driver that he knew of five drivers "in on this union deal," and that as soon as he found out who the sixth driver was, he would "fire the s.o.b." Id.

Just before the election, McGalliard asked one driver if he knew anything about the "union business." The driver replied that he could not tell McGalliard anything. McGalliard then said that Boone always "seemed fair" to the employees, and it seemed as if the Company treated "you fellows fair." But, he added, "if the [U]nion comes in, I got the lock." Id. Ultimately, the Montvale drivers and maintenance employees nonetheless voted to be represented by Local 171, which was certified by the Board on April 28. J.A. 927.

Flower runs from Simpsonville had begun on March 2 as scheduled, but Kroger soon became dissatisfied with the Montvale drivers' deliveries because of problems including damaged flowers and late deliveries. On about April 15, when Kroger decided to forego the hoped-for savings of hauling flowers out of Montvale, the Company began to haul flowers from Simpsonville with drivers from its Anderson, South Carolina, terminal. J.A. 928-29, 942.

A few days after the election, however, Dickenson told two different drivers that Montvale drivers would not be handling any more flower runs because the Union had been voted in, and that the Company had transferred the work to the nonunion Anderson terminal because it did not want any union drivers coming into Simpsonville. When one driver said that this sounded like a big joke, Dickenson replied, "You can call it a joke if you want to, but I think it's pretty serious." J.A. 929. In addition, on April 21, the Company reassigned six milk runs per week, going from Kroger's Westover Dairy at Lynchburg to Savannah, Georgia, from Montvale drivers to Charlotte-based drivers. The purpose of this reassignment was to accommodate a new run that the Company had picked up from A & P, hauling food from Charlotte to Greensboro. The dairy runs had amounted to 2,700 miles per week for two Montvale drivers. Id. Shortly thereafter, on May 3, 1986, the Company sent identical letters to the two Montvale drivers with the least seniority, notifying them that they were laid off for lack of work. Id.

On about June 13, Kroger closed its Roanoke bakery. Kroger gave the Company only a few days notice of this closing, which depleted the Company's workload. J.A. 930. On June 13, the Company "terminate[d]" the four must junior drivers and one utility man "[b]ecause of a permanent loss of a portion of [the] business at the Montvale facility...." Id.

Meanwhile, Company and Union officials met to discuss conditions of employment at Montvale. From the outset, however, Company management indicated an unwillingness to negotiate in good faith with Local 171. In early May, Assistant Manager Dickenson told one driver that Boone would not negotiate a contract with the Union. He said that what was going to take place would resemble the events at a nearby Pepsi Cola plant where the drivers voted to unionize, but the employer had dragged out negotiations for five years without agreeing to a contract. Dickenson then cut himself short, stated that perhaps he had said too much, and walked away. J.A. 930.

The first of five meetings between Company and...