Great Southern Trucking Co. v. National Labor R. Bd.

• Decision Date: 13 April 1942
• Docket Number: No. 4874.,4874.
• Citation: 127 F.2d 180
• Parties: GREAT SOUTHERN TRUCKING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fourth Circuit

127 F.2d 180 (1942)

GREAT SOUTHERN TRUCKING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 4874.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1942.

Whiteford S. Blakeney, of Charlotte, N. C. (Guthrie, Pierce & Blakeney, of Charlotte, N. C., and Milam, McIlvaine & Milam, of Jacksonville, Fla., on the brief), for petitioner.

A. Norman Somers, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, David Findling and Ralph Winkler, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case is before the Court upon petition of the Great Southern Trucking Company (hereinafter called Southern), to review and set aside an order issued by the National Labor Relations Board (hereinafter called the Board), pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. The Board, in its answer to the petition, has requested that its order be enforced as issued.

The record in this case, as will later be indicated, discloses not a few inconsistencies in the testimony of some of the witnesses. There were, also, some sharp conflicts between the testimony of witnesses for Southern and the testimony of witnesses for the Union. We think, however, that there was substantial evidence in the record to support the outline, which we now set out, of the important facts in the instant controversy.

Southern, a Florida corporation with its principal office in Jacksonville, Florida, is engaged in the business of hauling freight by motor trucks. In connection with its operations, Southern maintains offices and warehouses in the States of Florida, Georgia, Tennessee and North Carolina, including a terminal in Charlotte, North Carolina, where the alleged unfair labor practices occurred. In October, 1938, Local No. 71 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America (hereinafter referred to as the Union), began a campaign to unionize Southern's employees at the Charlotte, North Carolina, terminal. During the critical period of the membership drive, Southern attempted to defeat the organizational movement both by discrediting the Union leaders and disparaging the advantages of Unionization, and also by instigating a counter-movement among the employees for the formation of an unaffiliated union.

Southern's efforts, however, were unavailing, and by April, 1939, the Union included in its membership well over a majority of Southern's employees in an appropriate unit. Accordingly, the Union initiated collective bargaining negotiations with Southern on April 4, 1939, when Secretary Fullerton of the Union wrote to President Raulerson of Southern at the company's main office in Jacksonville, Florida, enclosing a proposed agreement and requesting a bargaining conference. Raulerson replied that the proposed contract, "* * * offers little in the way of a basis for negotiations in that it is impossible to exist under it. I am, however, referring the same to our Charlotte attorney, Mr. Blakeney, * * * and to our Superintendent in that territory, Mr. J. R. Mathews, who will be glad to go over the matter with you. * * * I have been practically out with an unenjoyable case of flu for three weeks, and for these reasons ask that you first take this matter up with the above named gentlemen. I shall be glad to come to Charlotte when the same is necessary." (Italics ours).

The first collective bargaining conference was held in Charlotte on May 6, 1939. At this meeting, the conferees discussed the Union's demands for wage increases, paid vacations, a closed shop and straight seniority. Raulerson, however, had not granted authority to Mathews, Southern's representative, to conclude a binding agreement on Southern's behalf, so that the conferees, in effect, were "just talking it over". This meeting ended with the understanding that Southern's representatives would consult with Raulerson concerning certain aspects of the discussion regarding wage increases and that the conferees would thereafter meet at a then undetermined date.

On June 5, 1939, Raulerson came to Charlotte, but he made no effort whatever to arrange a formal conference with the representatives of the Union. Instead, Southern, shortly thereafter, posted a notice on its bulletin boards thereby advising the employees directly that it was granting them a week's vacation with pay each year. It is noteworthy that such a vacation plan had been included in the Union's original proposed agreement of April 4, 1939, and had also been discussed in the bargaining conference of May 6, 1939. Yet Southern neither advised the Union of the grant before it became effective nor did Southern credit the Union with having had any part in obtaining this concession.

Formal negotiations between the Union's bargaining committee and the representatives of Southern were resumed on June 24, 1939. During this conference it became quite evident that while Garrett, who had replaced Mathews, had "quite a bit more authority" than his predecessor, Garrett, too, lacked the final power to bind Southern by any contract with the Union. Some of the Union committeemen thereupon stated that it was a "waste of time" to continue negotiations with representatives who lacked such authority. The Union representatives, therefore, asked that Raulerson come to Charlotte to negotiate with them in person. Garrett, however, persuasively suggested to the Union committeemen that the meeting continue in order that certain of the disputed provisions of the agreement might be sifted down and ironed out.

While many of the Union's demands met the approval of Garrett at this meeting, it seems to have been distinctly understood then, that Garret would submit the proposals to Raulerson "for the latter's consideration and approval if he saw fit". Garrett also assured the Union that he would do his utmost to prevail upon Raulerson to accept them.

Apparently Southern had for three years promised the employees wage increases without taking any affirmative steps to fulfil this promise. To the Union's insistence that this matter be satisfactorily settled, Garrett suggested that the question be deferred, since he believed there would be "no difficulty in arriving at an adjustment of pay".

A report to Raulerson of the results accomplished by Garrett (at the second bargaining meeting) with an inquiry as to whether Garrett should bring the proposals to Raulerson in Florida, brought a reply stating that Raulerson would be in Charlotte shortly. Fullerton, on learning of this fact, requested Garrett to arrange a conference between Raulerson and the Union. Garrett agreed to do so. A few days later, on July 20, 1939, Raulerson came to Charlotte and discussed the Union's proposals privately with his attorney, Blakeney, and Garrett. Here again, Raulerson made no effort to meet with the representatives of the Union. On the contrary, two days later, on July 22, 1939, Southern, without prior consultation with, or communication to, the Union, posted a notice in the Charlotte terminal advising the employees directly of a new wage scale with substantial wage increases for all employees. This unilateral tactical action was similar to the procedure previously followed by Southern with respect to paid vacations, in that no mention whatever was made in the posted notice (or otherwise) of the Union's overtures on behalf of the employees concerning the wage increases.

The third and final bargaining conference was held on July 29, 1939, pursuant to a request from Fullerton. Blakeney asked the representatives of the Union whether or not negotiations should be considered at an end in view of Raulerson's definite refusal to agree to several of the Union's most important proposals. The Union committee replied that it did not regard the negotiations as ended and that it still desired Raulerson to come to Charlotte, so that it could bargain directly and personally with him in the hope that the Union might then persuade him to accept its proposals. Blakeney thereupon stated that there was no purpose in Raulerson's coming to Charlotte in view of the apparent impasse with regard to a closed shop and straight seniority since Blakeney believed Raulerson would remain adamant in his refusal to accept the Union's demands on these two points. The conference ended with the understanding that Blakeney would request Raulerson for a written statement of Raulerson's position.

On August 16, 1939, Raulerson wrote to Blakeney stating that he was unwilling to agree to the closed shop and seniority clauses but that he "* * * was willing to negotiate with the (Union) relative to the terms of the contract which they have proposed and if they desire, I will make arrangements to come to Charlotte and discuss the matter with them". Shortly thereafter, Fullerton told Blakeney that unless Raulerson came to Charlotte, Fullerton would not be responsible for the actions of the employees.

About this time, the employees held a meeting to discuss "definite action regarding getting Mr. Raulerson up here". Then on August 31, 1939, McCrorie, business agent of the Union, approached Garrett and demanded that Raulerson be in Charlotte not later than September 2, 1939, to negotiate with the Union. Garrett protested that this request was unreasonable in view of the shortness of time, so McCrorie extended the date to 6 P. M. on September 6th. On August 31, Garrett telephoned Raulerson at Atlanta, Georgia, and related his discussion with McCrorie. Raulerson stated that he would be unable to be in Charlotte on the 6th of September, since he expected important litigation in which he was involved in Jacksonville to come on for trial on September 5th. Yet Raulerson admitted at the hearing that while he could have come to Charlotte during the...