INTERNATIONAL UNION OF UNITED BREWERY, ETC. v. NLRB
| Decision Date | 09 November 1961 |
| Docket Number | 15929,15988.,No. 15759,15759 |
| Citation | 298 F.2d 297,111 US App. DC 383 |
| Parties | INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Gulf Bottlers, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GULF BOTTLERS, INC., Respondent. GULF BOTTLERS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James C. Paradise, Cincinnati, Ohio, with whom Mr. Mozart G. Ratner, Washington, D.C., was on the brief, for petitioner in No. 15759.
Mr. Lawrence J. Molony, New Orleans, La., of the bar of the Supreme Ct. of Louisiana, pro hac vice, by special leave of court, with whom Messrs. Rocco C. Siciliano and Charles A. Hobbs, Washington, D.C., were on the brief for respondent in No. 15929 and petitioner in No. 15988. Messrs. Rocco C. Siciliano and Charles A. Hobbs, Washington, D. C., entered appearances for intervenor in No. 15759.
Mr. Melvin Pollack, Atty., National Labor Relations Board, with whom Messrs. Stuart Rothman, Gen. Counsel, National Labor Relations Board, Dominick L. Manoli, Assoc. Gen. Counsel, National Labor Relations Board, and Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, were on the brief, for respondent in Nos. 15759 and 15988 and petitioner in No. 15929.
Before WILBUR K. MILLER, Chief Judge, and DANAHER and BASTIAN, Circuit Judges.
Certiorari Denied April 9, 1962. See 82 S.Ct. 875.
The Board1 by its unanimous Decision and Order2 adopted the findings and conclusions of the trial examiner with reference to certain unfair labor practices charged against Gulf Bottlers, Inc., the Employer.
Involved in the Union's petition, No. 15759, is an entity known as Gulf Bottlers Employees Association which the Board found had been formed with the assistance and support of the Employer. The Board's Order directed that the Employer withdraw and withhold all recognition from the Association unless and until the Association after a Board election shall have been certified as the bargaining representative of the employees. Meanwhile for the protection of the employees the terms and conditions of an outstanding contract with the Association were to be continued. The Union here asserts that the Board erred in failing to find that the Employer did not dominate the Association and further in not ordering that the Association be disestablished.
The Employer, in No. 15988, has challenged the Board's finding that the Association had been assisted in violation of sections 8(a) (2) and (1) of the Act.3 The Employer further protests the Board's finding that two driver-salesmen had been discriminatorily discharged in violation of sections 8(a) (3) and (1) of the Act. The Employer contends that in any event the Board's order is without foundation on the ground that its various driver-salesmen were not entitled to the protection of the Act in that they were "supervisors," as defined in section 2 (11).4
The Board asks that its order be enforced in all respects.
The Employer5 distributes Pepsi-Cola and other bottled drinks in and about New Orleans over various routes which are serviced by some 36 or more driver-salesmen. The job of each such driver includes the driving of a truck, making deliveries to customers on his route, effectuating collections and assisting the customer in displaying merchandise. The driver-salesman also solicits new business and checks and hauls back to the plant the empty bottles. If he shall receive complaints from a customer he must, if possible, act upon them himself; otherwise he must submit the problem to his route manager. The exact status of this class of employee presents our principal problem, discussed in Part III. We turn first to the other issues.
In November 1958, Walker and Fazzio, the two alleged discriminatees, met with a union representative, arranged to undertake an organizing campaign and were supplied with union application cards. On December 6, 1958, the Union, claiming to represent a majority of the driver-salesmen, requested recognition. Two days later the petition for certification was sent to the Employer describing the unit as "All driver-salesmen, including full service drivers and their helpers * * *." but excluding "all other employees * * * and all supervisors as defined in the Act as amended." The Employer's President England on December 8, 1958 called Fazzio to his office and asked if he had signed a union card. Fazzio replied that he had not. England asked Fazzio to let him know if he heard anything about the Union. The following day he sent again for Fazzio. He wanted to know about the "gripes" which might be disturbing the men, adding that if Fazzio would let him know "of anybody else making mistakes, such as signing a union card," Fazzio would have his job then and ten years later.
On December 9, sales manager Weber told Walker that England wanted to see him. Did Walker "hear anything about any union activity going around?" Walker replied in the negative, but added that he would not inform England about union activity. England talked to all of the driver-salesmen seeking to ascertain whether or not they were "interested" in or had joined a union. On December 10, 1958, when the drivers reported for work they were called into the office. England wanted to know why they wanted a union and "what their gripes were." After discussion of terms and conditions of employment England asked the employees "to make a decision whether they wanted the union" or not. He sought to separate the employees into two groups, those for and those against a union. The meeting lasted several hours before England told Fazzio, who had been elected spokesman for the pro-union group, that
That night the men were requested to return to work on the following day. When they returned from their routes, having worked as usual, England talked to a group of the drivers suggesting that they form their own association to be called the Gulf Bottlers Employees Association, and that he could draw up a satisfactory contract. He told the group that they could get a lawyer and offered to pay one.
On December 12, 1958, various driver-salesmen, including Fazzio and Walker, were called to England's office where he talked about a contract with the proposed association. Shortly thereafter, the trial examiner and the Board found, England had his attorney draft a collective bargaining agreement which he requested the employees both individually and in groups to sign. Without further details, it is clear that various representations as to terms were made by England who sought to procure the signatures of the various driver-salesmen. All except Fazzio and Walker signed. One or two meetings of the thus recognized Association were held on company property. Before one such meeting commenced, England talked to the men but did not stay for the meeting. The Association elected its own officers and adopted a charter and by-laws. Thereafter, collecting dues and otherwise functioning through the procedures so created, the Association seems to have been controlled by the employees who were in position to and did operate their own organization. In January 1959, the Employer began deducting Association dues from the drivers' pay pursuant to their individual authorizations and the separate agreement with the Association.6
The agreement between the Employer and the Association, General Counsel's Exhibit 4, is before us. It comprises a fair labor-management contract with clauses providing for seniority rights, holidays, holiday pay, sick leave, vacations and many fringe benefits, arbitration and grievance clauses and other procedures.7 Each driver-salesman was guaranteed that the total of his salary and commission would not be less than $75 per week.
On such facts, which are not the subject of real dispute, the trial examiner and the Board found, we think correctly, that the Employer had assisted in the formation of the Association. We have carefully considered the entire record and fail to find evidence which in any substantial degree lends support to the contention of the Union that the Employer dominated the Association after its formation or in any manner controlled its conduct. The Board did not err in failing to order disestablishment of the Association.8 The Board's order on this aspect of the case must accordingly be affirmed.
The Employer vigorously argues that Fazzio and Walker had been discharged for cause, thus challenging the findings of the examiner and of the Board that there had been unlawful discrimination. We have carefully explored the record and have fully considered the authorities which counsel so earnestly has urged as controlling.9
Our decisions must control10 as we have applied the 1947 amendments which provide that "the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." In Joy Silk Mills v. National Labor Relations Board11 we said:
"The amendment, like its predecessor, does not permit the court to weigh evidence or to substitute its judgment for the Board\'s as to what conclusions are to be drawn from the evidence."
No great gain will flow from detailed particularization of the conflicting testimony on this aspect of the case. The trial examiner in controlling respects rejected the version submitted by England and expressly credited Fazzio and Walker. The Board adopted his findings and conclusions. It is clear that commencing in January, England, after...
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