Mississippi Transport, Inc. v. N.L.R.B.
| Decision Date | 29 August 1994 |
| Docket Number | Nos. 93-2600,93-2882,s. 93-2600 |
| Parties | 147 L.R.R.M. (BNA) 2073, 63 USLW 2183, 128 Lab.Cas. P 11,168 MISSISSIPPI TRANSPORT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MISSISSIPPI TRANSPORT, INC., Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daniel R. Wachtler, St. Paul, MN, argued (Daniel R. Wachtler and Eric L. Leonard, on the brief), for petitioner/cross-respondent.
Joseph J. Jablonski, Washington, DC, argued (Howard E. Perlstein, Joseph J. Jablonski, Jr., Jerry M. Hunter, Yvonne T. Dixon, Nicholas E. Karatinos and Aileen A. Armstrong, on the brief), for respondent/cross-petitioner NLRB.
Before MAGILL, Circuit Judge, FLOYD R. GIBSON, and JOHN R. GIBSON, Senior Circuit Judges.
Mississippi Transport, Inc. (MTI) petitions for review of a decision of the National Labor Relations Board (Board) finding that MTI violated Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158(a)(1), (3) (1988). The Board cross-appeals for enforcement of its order. MTI argues that the Board's conclusions that MTI illegally asked its employees to report protected union activities, created the impression that it was conducting surveillance of employees' union activities, and discharged an employee for engaging in protected union activities were not supported by substantial evidence on the record as a whole. We reverse in part, but otherwise grant enforcement of the Board's order.
MTI is a Minnesota corporation engaged in the business of transporting petroleum products by truck from area refineries to retail outlets in the Twin Cities area. The company headquarters in Stillwater, Minnesota, contains the administration, sales, and dispatch departments, a maintenance shop, and a parking facility for tractors and trailers. Duane Ahles, vice president of operations, oversees the headquarters' day-to-day operations. John Shaleen, the safety director and driver supervisor, oversees the drivers and is responsible for company compliance with state and federal safety rules.
Drivers report to the Stillwater terminal at the start of their shift and are dispatched with a list of loads for transport. MTI's drivers were frequently dispatched to the Ashland Refinery Terminal. Loading petroleum product at the Ashland terminal involves obtaining a loading card, moving the truck to the loading rack, pumping the proper amount and type of product into the various truck compartments, and receiving a bill of lading. There are frequently drivers from competing trucking companies, such as Indianhead Trucklines, at the loading rack at the same time as MTI drivers.
In the fall of 1990, Teamsters Local 120 (Union) attempted to organize MTI's mechanics and truck washers. An NLRB election was held in October 1990, which ended in a tie vote. In December 1990, the Union began a new campaign to organize MTI's drivers. Two Indianhead drivers, Jeff Johnson and James Kroschel, were ardent union supporters who began approaching MTI drivers to sign union cards while they were at the loading rack. MTI drivers reported Johnson and Kroschel's solicitation activities to company officials.
In December 1990, Shaleen called driver Gerald Leonard into his office and told him that another driver had reported that Leonard had been "talking union" at the Ashland terminal. The conversation ended when Leonard pointed out that the incident occurred when he was not on duty. Later, in the spring of 1991, Shaleen asked driver Michael Tietz whether anyone had approached him about joining the Union. Tietz stated that "some people were trying to pass out some cards at Ashland." When Shaleen asked if he was being bothered, Tietz replied that he could take care of it himself.
Johnson and Kroschel became increasingly more persistent. Very few of MTI's drivers, however, expressed interest in the Union. Indeed, some of the drivers were openly hostile to the Union; they viewed Johnson's and Kroschel's solicitation activities as harassment and complained about them to MTI officials. MTI driver Gregory Schiltz, for instance, complained bitterly about the union solicitors. Schiltz told Ahles that Johnson and Kroschel were constantly harassing him, sometimes remaining on the running board of his truck when he was trying to leave the Ashland terminal. Ahles testified that Schiltz told him that it had reached the point that he "would rather not even go [to the Ashland terminal] anymore; it would give him a knot in his stomach to have to go down there and it just made him very nervous."
In addition, Ahles testified that driver John Thompson complained about harassment by the Indianhead drivers. Thompson told Ahles that, when he was attempting to feed information into the computer at the loading rack, union solicitors punched him in the chest with their fingers and told him that "you will join the [U]nion." Ahles stated that his drivers were concerned that the intense union solicitation efforts at the Ashland terminal would interfere with their loading duties and lead to job-threatening mistakes.
Drivers also complained to Shaleen regarding union solicitation by Indianhead drivers at the Ashland terminal. Shaleen testified that drivers told him that they were being bothered when they were loading product and that Indianhead drivers were "getting up on the trucks when [the MTI drivers] were ready to leave." He stated that several MTI drivers told him that they wanted to "put ... Kroschel in a dumpster." Moreover, Kroschel and Johnson both acknowledged that heated exchanges occurred between themselves and MTI drivers regarding the Union. Johnson admitted that his repeated soliciting irritated MTI drivers.
Meanwhile, in December 1990, the retailer SuperAmerica, a customer of both Indianhead and MTI, transferred six major accounts from Indianhead to MTI. Soon after this transfer, MTI officials began receiving reports from drivers which suggested that a concerted effort to discredit the company was underway. For instance, one MTI driver received a bogus phone call at the Ashland terminal loading rack directing him to deliver his load to the wrong SuperAmerica station. On another occasion, an assistant manager at a SuperAmerica station received a call advising him that an MTI driver had been verbally abusive to a SuperAmerica customer's girlfriend while making a delivery. Ahles testified that MTI investigated and concluded that the allegation was unfounded.
In addition, an Indianhead driver crossed a lane dividing line and splashed slush onto an MTI truck's windshield, temporarily blinding the driver. MTI officials attributed the incident to Kroschel. On another occasion, someone switched "customer cards" at the Ashland terminal, resulting in an incorrect bill of lading for a petroleum load. Finally, MTI received a call from Ashland's Kentucky offices informing MTI that someone had anonymously sent photos to Ashland depicting an MTI driver violating Ashland's loading policies.
In response to Johnson and Kroschel's solicitations and the incidents following SuperAmerica's transfer of the six accounts, Ahles posted a memorandum to MTI drivers. The memorandum stated:
YOU MUST BE GETTING TO THE COMPETITION......
IN THE PAST FEW WEEKS WE HAVE HAD EVERY NATURE OF SLANDER AND LIES SPREAD ABOUT BY OUR COMPETITORS OR THEIR DRIVERS.
ON THE ONE HAND THEY ARE PUSHING YOU AND HARASSING YOU ABOUT JOINING THE UNION AND ON THE OTHER THEY ARE TRYING TO TAKE YOUR JOBS[.]
....
[after recounting the attempts to discredit MTI] THESE TYPES OF RUMORS AND LIES HAVE BECOME AN EVERY DAY OCCUR[RE]NCE.
I AM ASKING YOU TO BE SURE THAT YOU DO EVERYTHING RIGHT. YOU ARE BEING WATCHED.
IF YOU ARE HARASSED AT THE RACK OR WHILE YOU ARE WORKING ABOUT UNION ACTIVITIES I WANT TO KNOW IMMEDIATELY. WHEN, WHERE AND WHO.
YOU DO NOT HAVE TO PUT UP WITH THIS FROM PEOPLE WHO ARE MORE INTERESTED IN CAUSING YOU TROUBLE THAN IN DOING THE JOB THEY ARE GETTING PAID FOR (EVEN IF THEIR PAY IS LESS THAN YOURS).
DO YOUR JOB RIGHT--WE WILL CONTINUE TO GROW AND WE WILL CONTINUE TO HAVE A JOB....
Petitioner's App. at 135 (emphasis in original). Even after posting this notice, however, Ahles received additional complaints. Thus, a few weeks after posting the notice, Ahles wrote a letter to Indianhead's president, requesting that the harassment cease.
On June 6, Ahles posted a memorandum notifying drivers of a change in driver scheduling procedures. The new policy required drivers who had worked at least 48 hours in a week but less than 56 hours to telephone the terminal on their days off and accept any available assignments. Until MTI instituted this new policy, driver Steve Berger opposed unionization. He felt, however, that the new policy precluded drivers from making plans on their days off. As a result, he began "pitching [the Union] pretty hard" to his fellow drivers.
Meanwhile, on June 8, Shaleen filled in for an injured driver. Shaleen drove to the Ashland terminal and loaded petroleum next to Kroschel. Kroschel did not recognize Shaleen and Shaleen said that he was a senior driver who normally hauled from another refinery. Kroschel then offered a union card to Shaleen, who took it and agreed to "think about it." Shaleen asked Kroschel if there were any MTI drivers who he could "talk to about it." Kroschel testified that he told Shaleen to talk to Berger.
Around this time, Berger obtained a union authorization card from a driver from another company. He mailed the card, signed and dated, to the Union on June 12. Berger was not scheduled to work from June 13 through June 15. He failed to telephone the MTI terminal on those days, however, in violation of the new call-in policy. When Berger arrived at work on June 17, Shaleen confronted him about failing to comply...
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