Central Freight Lines, Inc. v. N.L.R.B.
| Decision Date | 22 January 1982 |
| Docket Number | No. 81-4177,81-4177 |
| Parties | 109 L.R.R.M. (BNA) 2514, 93 Lab.Cas. P 13,214 CENTRAL FREIGHT LINES, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fulbright & Jaworski, T. J. Wray, Houston, Tex., for Central Freight Lines, Inc.
Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D. C., for N.L.R.B.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
This labor dispute grew out of an organizational campaign launched by the International Association of Machinists and Aerospace Workers, AFL-CIO, (Union) at the Dallas and Fort Worth terminals of Central Freight Lines (Central). After an earlier effort to organize the company failed, several Central employees began cooperating with the Union to try again to promote the Union's election as bargaining representative for the previously unorganized Central work force. The campaign encountered resistance from Central's management. In 1979 upon complaint of the Union, the National Labor Relations Board (the Board) found that Central had violated sections 8(a)(1) and (3) of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1), 158(a)(3), by discharging two union supporters at the Dallas terminal because of their organizational activities. See Central Freight Lines, Inc., 246 N.L.R.B. No. 13 (1979), enforced, 624 F.2d 1301 (5th Cir. 1980). In a separate action, the Board found Central to have committed similar violations at its Beaumont terminal. See Central Freight Lines, Inc., 250 N.L.R.B. No. 63 (1980), modified, 653 F.2d 1023 (5th Cir. 1981).
While those cases were in litigation, the Union subsequently brought the two additional charges here at issue. In brief, the Union alleged that Central had again violated section 8(a)(1) of the Act in October and November of 1978 by coercively interrogating employees about their union activities, by threatening that a loss of jobs would follow a certification of the Union as bargaining agent, and by promising increased benefits, all of this in an effort to dampen organizational enthusiasm. It also claimed that Central violated sections 8(a) (1) and (3) by discharging four employees because of their union activities, Billy Hudson, Keiller Davis, and George Southerland in November 1978 and Stewart Jones in March 1979. There was a further charge of discrimination against the Union in suspending Douglas Higgins in July 1979. The administrative law judge who heard the consolidated cases in June and October of 1979 filed a detailed opinion upholding each of the Union's allegations. Central appealed to the Board, which, after a careful review of the record, adopted the findings and conclusions of the administrative law judge, with one exception: it found no prima facie case to support the conclusion that Central had fired George Southerland for union activity rather than for its professed reason of absenteeism. See Central Freight Lines, Inc., 225 N.L.R.B. No. 56 (1981). Central now petitions this Court for relief from the Board's order, arguing that the record does not bear out the Board's findings. Having reviewed the administrative law judge's opinion, the Board's order, and the lengthy record upon which they are based, we enforce the Board's order in full.
As usual, we note at the outset that our power to review determinations by the Board is limited. We must sustain the Board's findings if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965); Mueller Brass Co. v. NLRB, 544 F.2d 815, 817 (5th Cir. 1977). We may not displace the Board's choice between two conflicting views of the facts, even though we might have chosen differently had the case been before us de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Aero Corp., 581 F.2d 511, 514 (5th Cir. 1978). Finally, it is important in this case to stress that "(c)redibility resolutions are peculiarly within the province of the trial examiner and the National Labor Relations Board and are entitled to affirmance unless inherently unreasonable or self-contradictory." NLRB v. Proler International Corp., 635 F.2d 351, 355 (5th Cir. 1981).
We turn first to the allegation that Central supervisors improperly threatened employees with reduced work or discharges, promised increased benefits, and cooercively interrogated employees about their union activity. There is substantial evidence in the record to support the Board's factual conclusions. Most of the evidence in this record came to the Board in the form of conflicting testimony. The administrative law judge heard this testimony and was in the best position to evaluate the credibility of each witness. The Board's decision to credit the employees' versions of the incidents in question, based upon the findings of the administrative law judge, was in the well-established exercise of the factfinder's prerogative.
Central's attempt to attack these findings as based upon inadequate reasoning or upon statements taken out of context does not find sufficient support in the record to necessitate substitution of our judgment for that of the Board. For example, Central insists that the Board erred in relying on Billy Hudson's account of the employee meeting at which supervisor Ken Ashmore made the alleged threats and promises. According to Central, the record shows that Hudson had "no recall" of Ashmore's remarks on the danger of future cutbacks. What the record actually shows, however, is that Hudson did not recall whether Ashmore's comments on the potential effect of unionization on jobs at Central were made in connection with his remarks on Brown Express, a competitor that apparently had suffered some cutbacks after its employees organized. Hudson was certain, nevertheless, that Ashmore had raised the possibility of cutbacks at some point during the meeting. In response to questioning by Central's counsel, Hudson recalled the meeting as follows:
A. He (Ashmore) stated that people that were full time-if we went Union, people full time-most of them would be part time or would not have jobs at all. That's what he said.
Q. Did he say that this could happen?
A. Yes, sir, he said this could happen.
Q. Because the Union could put restrictions on?
A. He didn't say because the Union could put restrictions on.
Q. Did he say it could happen because of Union restrictions or how did he put it?
A. He said, and I quote...
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