Merchants Truck Line, Inc. v. N.L.R.B.

• Decision Date: 07 August 1978
• Docket Number: No. 77-3043,77-3043
• Parties: 99 L.R.R.M. (BNA) 2143, 84 Lab.Cas. P 10,747 MERCHANTS TRUCK LINE, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1011

577 F.2d 1011

99 L.R.R.M. (BNA) 2143, 84 Lab.Cas. P 10,747

MERCHANTS TRUCK LINE, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 77-3043.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 1978.

Leslie Darden, New Albany, Miss., for petitioner, cross-respondent.

Elliott Moore, Deputy Assoc., Gen. Counsel, Alan Banov, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Paul J. Spielberg, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent, cross-petitioner.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before WISDOM, GOLDBERG and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The issue before us is whether substantial evidence supports the NLRB's conclusion that the employer, Merchants, ¹ in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, discharged four employees because they signed union authorization cards, and in order to discourage pro-union activity among its employees. The record permits other inferences and contains evidence that would support the conclusion that the employer acted for sound business reasons, but the standard of review to which we are limited requires us to uphold the Board's decision.

I.

Although the employer challenges only one aspect of the Board's order, a brief summary of the circumstances that led to the unfair labor practice charges in this case is necessary to illuminate its analysis and our evaluation of it.

In May, 1976, several of Merchants' employees initiated a campaign to establish a Teamsters local as the employees' bargaining agent. During May, the employer's president and vice president were involved in at least two instances of threats and coercive interrogations directed at pro-union employees. In June, the employer promulgated a strict "no-solicitation rule," and the employer's secretary-treasurer threatened a pro-union employee with discharge because of his organizing activity. The employer later announced new employee benefits, some unprecedented in the company, and these were found by the Board to have an illegally coercive effect upon the employees. In July, the employer suspended a pro-union driver without justification for three days. In all these respects, the employer does not dispute the existence of substantial evidence to support the Board's decision that violations of Section 8(a)(1) of the NLRA occurred.

On June 3, 1976, Jimmy Roberson, the employer's secretary-treasurer, instructed Mark Shuford, the employer's director of terminals, to investigate the possibility of truck route changes in connection with the employer's impending merger with Mississippi Freight Lines, another carrier, whose operations the employer had conducted in part since 1974 under ICC temporary authority. On June 22, in a memo marked "Confidential," Shuford notified the terminal supervisors, including Alan Patterson at the Louisville, Mississippi terminal, that the route changes would take effect on June 28, two days before the consummation of the merger. Shuford directed the Louisville supervisor "to make the necessary reduction in . . . work force to offset the reduction in the work load at Louisville." On June 25, Patterson discharged the five junior employees at Louisville, four of whom were known to him ² to be union sympathizers, and the fifth of whom was his son. He informed all five that a reduction in work load caused by the merger required their dismissal. Two of the four who had signed union cards inquired again in August regarding the reasons for their discharge and the possibility of rehire; Roberson informed them that they could not have their jobs back or transfer to a different terminal.

On August 11, 1976, Preston Farr, the driver whom the employer had suspended in July without justification, filed an unfair labor charge alleging that Merchants had engaged in anti-union coercive activity. Thereafter, Virgil Rodgers, the senior employee discharged on June 25, filed an unfair labor charge, in connection with the June discharges and the employer's other allegedly coercive activities. The General Counsel filed a complaint on both charges.

The employer contends, and the Administrative Law Judge found, that the June 25 dismissals were justified to effect operating economies after Merchants adopted route changes that made its freight operation more efficient and enabled Merchants to handle its freight operations with fewer people. As further evidence of good faith, the Administrative Law Judge noted that the selection of discharged employees was based on seniority, and that the discharged employees were given two weeks' severance pay plus their accrued vacation benefits. The employer further argues that, when an opening for a full-time driver occurred at the Louisville terminal in December, 1976, after the NLRB complaints had been filed, the job was offered to and accepted by Virgil Rodgers, the senior employee discharged and a complainant in this action.

The NLRB reversed the Administrative Law Judge with respect to the discharges for essentially two reasons. First, according to the Board, he failed "to give proper weight to the timing of the discharges during a (union) campaign already strenuously opposed" by the employer. Merchants Truck Line, Inc., 1977, 232 NLRB No. 107. Second, the Board found probative the employer's unwillingness to help the discharged employees to find work at other Merchants terminals. The evidence of work availability and the employer's repeated denials to the employees that transfers were possible were substantial evidence, in the Board's view, of the employer's unlawful motive in discharging the employees.

To counter the employer's argument of economic justification, the Board urges that the timing of Merchants' route changes is suspicious, and that the route changes did not sufficiently reduce Merchants' workload to justify the layoffs. The Board argues that the merger was no more or less certain, and the route changes no more or less risky, in June, 1976 than at any other time after Merchants first took over Mississippi Freight Lines' operating authority in 1974. Although it acknowledges that the route changes afforded some benefits to the company, the Board insists that economic necessity did not compel the changes when effected, and that the timing is suspect under the circumstances of the company's anti-union campaign. The Board finally points to what it considers evidence of excessive overtime after June 25 at the Louisville terminal to demonstrate that the route changes did not eliminate the need for the employees that Merchants discharged.

II.

Our role in reviewing decisions of the National Labor Relations Board is limited: an NLRB decision must be sustained if supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; NLRB v. Red Top Cab & Baggage Co., 5 Cir. 1967, 383 F.2d 547, 553. Substantial evidence is not mere suspicion, but "such (relevant) evidence as a reasonable mind might accept as adequate to support" the Board's conclusion. NLRB v. Federal Pacific Electric Co., 5 Cir. 1971, 441 F.2d 765, 770, quoting Consolidated Edison Co. of N. Y. v. NLRB, 1938, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. The task before us in no way changes because the Board's judgment differs from that of the Administrative Law Judge in this case; the judge's contrary finding is part of the record and must be considered, but our province, having done so, is only to determine whether the record as a whole offers substantial evidence to support the Board's view. Nix v. NLRB, 5 Cir. 1969, 418 F.2d 1001, 1008; Halliburton Co. v. NLRB, 5 Cir. 1969, 409 F.2d 496, 497.

In determining whether the Board's conclusion that violations of 8(a)(3) occurred is supportable, it is of course crucial to bear in mind the nature of that conclusion. Evidence of an 8(a)(3) violation must be probative of discrimination, not merely of the employer's hostility towards unionism. Discharge is a traditional management prerogative; lack of justification is not to be lightly inferred:

Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids.

NLRB v. McGahey, 5 Cir. 1956, 233 F.2d 406, 413; NLRB v. Buddy Schoellkopf Products, Inc., 5 Cir. 1969, 410 F.2d 82.

The General Counsel has the burden of showing that, but for the employer's intention to discriminate against pro-union employees and thus to discourage union membership, these discharges would not have taken place. In this context, an employer's general anti-union hostility, and its pattern of anti-union activity, may be significant, when the employer's motives are ambiguous, but, without more, they do not supply the element of unlawful motive. NLRB v. Bogart Sportswear Mfg. Co., Inc., 5 Cir. 1973, 485 F.2d 1203; NLRB v. Materials Transportation Co., 5 Cir. 1969, 412 F.2d 1074; NLRB v. O. A. Fuller Super Markets, Inc., 5 Cir. 1967, 374 F.2d 197; NLRB v. Atlanta Coca-Cola Bottling Co., 5 Cir. 1961, 293 F.2d 300.

With these principles in mind, we turn to the record. As in many cases, some evidence exists of two motives, one lawful, one unlawful. NLRB v. Neuhoff Bros. Packers, Inc., 5 Cir. 1968, 398 F.2d 640. Because direct proof of motive is rarely possible, the General Counsel has been forced to rely on circumstantial evidence, which may be sufficient to carry his burden. NLRB v. Laney & Duke Storage Warehouse Co., 5 Cir. 1966, 369 F.2d 859. As we have noted, the Board and the Administrative Law Judge have disagreed as to the motives behind...