Manley Transfer Company v. NLRB

• Decision Date: 14 March 1968
• Docket Number: No. 18864.,18864.
• Citation: 390 F.2d 777
• Parties: MANLEY TRANSFER COMPANY, Inc. and Kansas Delivery Service, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

390 F.2d 777 (1968)

MANLEY TRANSFER COMPANY, Inc. and Kansas Delivery Service, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18864.

United States Court of Appeals Eighth Circuit.

March 14, 1968.

W. C. Dannevik, Jr., Kansas City, Mo., for petitioners; Donald J. Quinn, Kansas City, Mo., was with W. C. Dannevik Jr., Kansas City, Mo., on the brief and reply brief.

Paul J. Spielberg, Atty., N.L.R.B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Glen M. Bendixsen and Marion Griffin, Attys., N.L.R.B. were on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The petitioners request this Court to review and set aside a decision and order of the National Labor Relations Board, reported at 164 NLRB 21, 1967, 65 LRRM 1194. The Board cross petitions for enforcement. This Court has jurisdiction under Section 10(e) and (f) of the National Labor Relations Act. 29 U.S.C. § 160(e), (f) (1964 ed.).

We have reviewed the Board's findings of the fact in the light of established standards. Universal Camera Corp. v. National L. R. Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229 (8th Cir. 1966). We have resolved fairly conflicting views in accordance with the Board's findings, N.L.R.B. v. Coachman's Inn, 357 F.2d 134 (8th Cir. 1966); N.L.R.B. v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534 (8th Cir. 1963), and have accepted as reasonable the inferences drawn by the Board as we believe them to be adequately supported by the record. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693 (8th Cir. 1965); Kitty Clover, Inc. v. National Labor Relations Board, 208 F.2d 212 (8th Cir. 1953).

Applying the above standards, we accept the Board's findings of fact which were substantially as follows:

Manley Transfer is a Kansas corporation operating a trucking business as a common carrier in interstate commerce. It is a family-owned corporation. The stock is equally divided among three brothers and one sister, all of whom are directors of the Company. It maintains freight terminals in the towns it serves. In the smaller towns, as a matter of policy, it tries to have agents operate the terminals, rather than having Company-owned stations. The agency contracts are standard with minor variations as to the commissions paid to the agents.

Manley Transfer had an agent's contract with the George Harris Delivery Service in Lawrence, Kansas, from 1959 to 1964. Harris developed financial difficulties in 1964. He went to Lawrence Manley, the General Manager of Manley Transfer, for help. They reached an agreement that a new corporation would be organized to operate the terminal in Lawrence, that Lawrence Manley would advance money to it, and that Harris would remain its General Manager. Pursuant to the agreement, Lawrence Manley co-signed a personal note to take care of Harris' obligations, and a corporation, "Kansas Delivery Service, Inc.," (Kansas Delivery) was organized. Ten shares of common stock were issued at a par value of $100.00 each. Lawrence Manley and his wife subscribed to nine shares, paying for them with personal funds, and George Harris to one. Lawrence Manley was elected President; his wife, Secretary-Treasurer; and George Harris the General Manager. The three formed the Board of Directors.

As General Manager, Harris received a salary, plus a commission based on a percentage of profits.

Kansas Delivery signed an agent's contract with Manley Transfer to operate the Lawrence terminal. The terms of the contract were similar to those in the previous agreement between Harris and Manley Transfer. Kansas Delivery continued to operate as Harris had, employing the same persons at the same location, using the same equipment and having the same supervision, i. e., George Harris. Hiring and firing, with exceptions subsequently noted, was left in Harris' hands, but the employees were informed that they had a new boss "Larry Manley." Employees were not transferred between Kansas Delivery and Manley Transfer. Manley Transfer's freight bills were used. The Manley Transfer I.C.C. permit was used in interestate operations. Lawrence Manley kept the books, signed all checks and prepared and submitted various governmental reports for Kansas Delivery. The bulk of Kansas Delivery's business continued to be the hauling of "Hallmark" cards. The signs on the terminal identified it as a Manley terminal; employees were instructed to answer the telephone by saying, "Manley Transfer Company;" the trucks had Manley Transfer colors and name on them; they pulled Manley Transfer trucks and Manley Transfer paid the cost of carrying insurance for the new company. The contract was terminable by either party on fifteen days notice.

In early February, 1966, Foster, an employee of Kansas Delivery, contacted the Vice President of Local 41 of the International Brotherhood of Teamsters and asked about getting a Union. The Union representative told Foster that he would send him Union cards, that Foster should have the cards signed and return them to the Union. By February 16, 1966, Foster had secured the signatures of a majority of the employees on the cards, namely, Melvin Beerbower, Gerald Cobb and Dean Howard, and had returned them, along with one signed by himself, to the Union.

On March 10th, a Vice President of the Union told Lawrence Manley that the men at Lawrence, Kansas, had authorized the Union to represent them. He requested recognition and asked that a contract be negotiated. Lawrence Manley told him that before this transpired he would close the operation. Later the same day, Harris told Foster that Lawrence Manley had called him from Kansas City and had told him that four Union employees had signed cards, and that he wanted the instigators fired. Foster admitted securing the signatures but stated that he could not be fired for such action. Harris immediately discharged Foster telling him that he had complaints about Foster from the "Hallmark Company" and that he could fire him for the complaints. A few hours later, Harris questioned Beerbower, Cobb and Howard with respect to their Union activities, threatened them with discharge if they did not abandon their Union activities, and offered them a wage increase if they would forget about the Union.

Foster reported his discharge to the Union and the Union attempted, without success, to secure his reinstatement. On March 16th, Foster returned to the company to pick up some clothing and was asked by Harris if he was going to keep pushing the Union. When he stated that he was, Harris answered, "I will tell you one thing. Before I have a Union, I will lock the doors."

Between March 14th and March 26th, a number of discussions relating to a contract and the reinstatement of Foster were held between the Union, Lawrence Manley and his attorneys. Lawrence Manley insisted that Manley Transfer was in the middle, that it had nothing to do with Kansas Delivery, and that the Union would have to negotiate with George Harris.

Meanwhile, on March 17th, Lawrence Manley talked to Raymond Brooks of the Brooks Transfer and Storage Company about the possibility of his taking over the Lawrence operation, along with one at Ottawa, Kansas. On March 22nd, Lawrence Manley signed a new contract for Manley Transfer with Brooks for the operation of the Lawrence terminal, effective March 26, 1966. The contract was substantially the same as the one with Kansas Delivery, except that it provided for lower commissions.

After the contract was signed, Lawrence Manley told George Harris what had taken place and instructed him to send Manley Transfer a letter requesting cancellation of the agreement between it and Kansas Delivery. George Harris did so on the same date. Manley Transfer cancelled the agreement on receipt of the notice.

On March 26th, Harris informed Beerbower, Cobb and Howard that he was going to close the doors, that they were out of jobs, and that he, too, was no longer employed.

On March 28th, Brooks commenced operations as Manley Transfer's, Lawrence, Kansas, agent, using substantially the same equipment and operating about as before. A lease was negotiated for the use of the equipment of Kansas. George Harris was employed as a driver and Mrs. Harris as an office worker. Neither Foster, Beerbower, Cobb nor Howard were employed, their places being filled by two employees from the Brooks' Ottawa operation and two newly hired employees from Ottawa.

The Board concluded: (1) that Manley Transfer's control of Kansas Delivery was such as to constitute Kansas Delivery a subordinate instrumentality of it, and Kansas Delivery's supervision and employees were, in effect, part of Manley Transfer's supervision and work force; (2) that Manley Transfer and Kansas Delivery violated Section 8(a) (1) and (3) of the Act by interrogating the employees about their Union activities, threatening them with discharge if they did not abandon them, offering a wage increase if they would forget about the Union and discharging Foster because of his Union activities; (3) that Manley Transfer and Kansas Delivery violated Section 8(a) (1) of the Act by threatening Foster that the terminal in Lawrence, Kansas, would be closed to prevent unionization, and promising Foster a job in Kansas City, Missouri, if he would forget about the Union; (4) that Manley Transfer and Kansas Delivery, by their failure to recognize the Union, the cessation of business by Kansas Delivery on March 26, 1966, and the substitution of Brooks for the operation of the Lawrence, Kansas, terminal engaged in a course of conduct whereby they clearly refused to bargain in good faith with the Union in violation of Section 8(a) (5) and (1) of the Act; and (5) that Manley Transfer and Kansas Delivery violated Section 8(a) (3) and...