N.L.R.B. v. Suburban Ford, Inc.
| Decision Date | 15 April 1981 |
| Docket Number | No. 80-1391,80-1391 |
| Citation | 646 F.2d 1244 |
| Parties | 107 L.R.R.M. (BNA) 2229, 91 Lab.Cas. P 12,707 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUBURBAN FORD, INC., Respondent, and Automobile Transport Chauffeurs, Demonstrators & Helpers, Teamsters Local 604, Intervenor-Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Fleischer (argued), Atty., N. L. R. B., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
Harris, Dowell, Fisher, McCarthy & Kaemmerer, Thomas W. McCarthy (argued), Chesterfield, Mo., for respondent.
Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.
The National Labor Relations Board (NLRB) petitions this court under section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), for enforcement of its order directing Suburban Ford, Inc. (the Company), to bargain collectively with Local 604 of the Automobile Transport Chauffeurs, Demonstrators & Helpers Union (Local 604), representing the Company's salesmen, and Local 618 of the Automotive, Petroleum and Allied Industries Employees Union (Local 618), representing the Company's clerical workers. The NLRB found that after a majority of the Company's salesmen and clerical workers had signed authorization cards designating Local 604 and Local 618 as their collective bargaining representatives, the Company engaged in unfair labor practices that would tend to undermine the Unions' majority strength and impede the election processes. We conclude that substantial evidence on the record as a whole supports the NLRB's findings as to Local 604 but not as to Local 618. Accordingly, we deny enforcement of the Board's order as it pertains to Local 618 and grant enforcement of the order in all other respects.
On April 19, 1979, representatives of Local 604 met with five of the nine salesmen employed by Suburban Ford. By the next day, the Union received signed membership cards from six salesmen designating Local 604 as their collective bargaining representative. Shortly thereafter, a majority of the Company's clerical workers signed authorization cards designating Local 618 as their collective bargaining agent. After the Company declined to recognize the Unions on the basis of the signed authorization cards, Local 604 and Local 618 separately petitioned the Board for representation elections among each unit's employees.
On April 28, two days after the Unions' demand for recognition, new-car sales manager James Fitzgerald called salesman Robert Hawkins into the Company-owner's office to express his displeasure that Hawkins had joined a union. In particular, Fitzgerald stated, "Hawk, you of all people, I didn't think you'd do this to me." Fitzgerald also stated that he expected loyalty from his employees and that "he could have blown (Hawkins) out of (the Company) any time he wanted to when (Hawkins) was having bad months." That same day Fitzgerald also called salesman D. W. Van Ronzelen into the office and complained,
Two days later at the Company's weekly sales meeting, Fitzgerald initiated a number of unprecedented actions. After indicating that the Company had experienced its worst April sales record in history, he ordered the replacement of the salesmen's demonstrators with less desirable vehicles and the transfer of new and used car salesmen between the two departments. Fitzgerald also canceled for "lack of interest" an ongoing bonus contest that offered the salesmen an opportunity to win a trip to Las Vegas or to a Missouri resort. Finally, the Company hired five new salesmen, most of whom had little or no experience in automobile sales, and four new clerical employees, three of whom were at least indirectly related to management officials.
During May, used-car sales manager Jerry Gilliam initiated at least a half-dozen conversations with Company salesmen concerning their support for Local 604. On one occasion, Gilliam approached Van Ronzelen in a tavern and commented, "(I)f you'll forget all this union nonsense, I'll make it very well worth your while." On several occasions, Gilliam made similar comments to Hawkins and during one conversation added, "(I)t won't do any good to bring a union in." In late May, when Hawkins indicated that he had joined Local 604 for the medical, dental, and pension benefits, Gilliam responded, "I can give you that", wrote on a paper napkin that Bob Hawkins would be guaranteed a job for five years if he sold ten or more cars a month, and signed his name.
Finally, on June 6, Gilliam chastized Hawkins for lending a demonstrator to a customer. When Hawkins attempted to explain that he had acted in accordance with Company policy under the circumstances and had received the permission of Company-owner Hildebrand to lend the vehicle, Gilliam refused to listen to these justifications and fired Hawkins. Two days later, Hawkins filed an unfair labor practice charge with the NLRB and delivered a copy of the complaint to Gilliam. Immediately after Gilliam showed the copy to Hildebrand and other management officials, the Company rehired Hawkins.
On the basis of this evidence, the NLRB found that the Company had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), by accusing salesmen of disloyalty because of their union activity, soliciting grievances from salesmen to discourage union membership, threatening to discharge salesmen who engaged in union activity, promising benefits to salesmen who would abandon their support for Local 604, advising salesmen that unionization would be futile, and hiring new salesmen and clerical employees solely for the purpose of destroying the majority status of both Local 604 and Local 618. The NLRB also found that the Company had violated section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3) (1976), by replacing the salesmen's demonstrators with less desirable vehicles, canceling the bonus contest, and discharging Hawkins for participation in union activities. The NLRB then determined that the salesmen and clerical employees constituted appropriate bargaining units, that Local 604 represented a majority of the salesmen and Local 618 held majority status among the clerical employees before the Company committed its violations of sections 8(a)(1) and 8(a)(3), and that the issuance of bargaining orders would better protect the employees' expression of support for the Unions than the use of traditional remedies to ensure fair representation elections.
The NLRB's order to bargain with Local 618 primarily rests on the Board's admittedly novel theory that an employer violates section 8(a)(1) by hiring new employees solely for the purpose of destroying a union's majority status in the bargaining unit. The Board premises this theory on the view that "discrimination in hiring is twin to discrimination in firing." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187, 61 S.Ct. 845, 849, 85 L.Ed. 1271 (1941). Just as an employer may not discharge prounion employees to prevent them from voting in a Board election, neither should the employer be permitted to hire unnecessary antiunion employees for the purpose of diluting the voting strength of those employees already in the bargaining unit who support the union.
The Company answers that the Board cannot establish a violation of section 8(a)(1) upon a mere showing that an employer hired new employees solely for the purpose of destroying a union's majority status. To establish that the employer's addition of employees to the work force might dilute the union's majority status in the bargaining unit, the Board must also show that the new employees would be eligible to vote in the upcoming representation election under the Board's election rules and that these employees would likely vote against the union in a greater proportion than the existing employees in the bargaining unit.
We need not determine the merits of the Board's theory in this case because, in any event, the record does not support the Board's order to bargain with Local 618....
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