National Labor Rel. Bd. v. Pacific Intermountain Exp. Co.

• Decision Date: 07 February 1956
• Docket Number: No. 15318.,15318.
• Citation: 228 F.2d 170
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC INTERMOUNTAIN EXPRESS COMPANY, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-The-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

228 F.2d 170 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC INTERMOUNTAIN EXPRESS COMPANY, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-The-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL, Respondents.

No. 15318.

United States Court of Appeals Eighth Circuit.

December 23, 1955.

Rehearing Denied February 7, 1956.

Rose Mary Filipowicz, Atty., N. L. R. B., Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Atty. N. L. R. B., Washington, D. C., were with her on the brief), for petitioner.

Harry L. Browne, Kansas City, Mo. (Raymond F. Beagle, Jr., and Spencer, Fane, Britt & Browne, Kansas City, Mo., were with him on the brief), for respondent Pac. Intermountain Exp. Co.

John J. Manning, Kansas City, Mo., for respondent International Brotherhood of Teamsters, etc., Local No. 41, AFL.

Before JOHNSEN, COLLET, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The National Labor Relations Board, hereinafter called Board, pursuant to section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., hereinafter called the Act, has petitioned this court for enforcement of an order (reported at 110 NLRB No. 14) issued by it against Pacific Intermountain Express Company, hereinafter called Company, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-The-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL, hereinafter called Union. The Company because of alleged violations of its speed and safety regulations had discharged its employee Sanders, and had issued a warning letter to its employee Dunbar. The Board found that no safety regulation had been violated, and that in the action taken against Sanders and Dunbar the Company had violated section 8(a) (1), (3), and (4) of the Act, and that the Union had violated section 8(b) (2) and 8(b) (1) (A) of the Act. The Company and the Union were ordered to cease and desist from the unfair labor practices of which they were found guilty and to make Sanders whole for loss of earnings caused by his discharge. The Company was required to reinstate Sanders and to withdraw the warning letter issued to Dunbar. The Union was directed to notify Sanders and the Company that it had no objection to Sanders' reinstatement, and both Company and Union were required to post appropriate notices.

The Company is a motor freight carrier engaged in interstate commerce. Its general offices are located in Oakland, California, with terminals in various States including one in Kansas City, Missouri. The present difficulty arose in the Kansas City, Missouri, district.

The principal question for determination is whether the Board's findings are supported by substantial evidence on the record as a whole, and the subsidiary question is whether the Board's reversal of certain credibility findings of the trial examiner was warranted.

The law applicable to this case appears to be well established. The scope of review of the decisions of the Board is thoroughly discussed and explained in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456. Upon review we are required to give consideration to the special qualifications of the Board to deal with problems in its field. A reviewing court can not try the case de novo and substitute its judgment for that of the Board. The court is justified in setting aside the Board's decision when it can not conscientiously find that the evidence supporting the Board's decision is substantial when viewed in the light of the record in its entirety including the evidence opposed to the Board's view. The Universal Camera case also charts the course for the courts to follow when the Board disagrees with its trial examiner who has heard the evidence. The Court at page 492 of 340 U.S., at page 467 of 71 S.Ct. states:

"* * * The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are `clearly erroneous.' Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required."

And at page 496 of 340 U.S., at page 469 of 71 S.Ct.:

"* * * The `substantial evidence' standard is not modified in any way when the Board and its examiner disagree. * * * The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. * * *"

See also Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358, 364, 75 S.Ct. 855. The Board's decision may be based upon circumstantial evidence as well as direct evidence. Direct evidence of a purpose to violate a statute is rarely obtainable. N. L. R. B. v. International Union, etc., Local 101, 8 Cir., 216 F.2d 161, 164; Hartsell Mills Co. v. N. L. R. B., 4 Cir., 111 F.2d 291, 293; N. L. R. B. v. Thomason Plywood Corp., 4 Cir., 222 F.2d 364.

The evidence in this case was taken before a trial examiner who filed his report with the recommendation that the complaint be dismissed as to both Company and Union. Violation of the Company's rule requiring drivers to observe posted speed regulations was the basis for Sanders' discharge. Sanders had received a warning letter in November 1952, stating that he had exceeded the speed limit in High Hill, Missouri, at 1:30 A. M. on October 31, 1952. Baker, the Company's driver supervisor, and Lohrey, its driver foreman, claim that they personally observed Sanders violate posted speed regulations in three small communities on the night of January 12 and the early morning of January 13, 1953. Sanders denied that he was speeding on any of these occasions and produced evidence to support his contention. In the contract between the Company and the Union the circumstances under which an employee could be discharged are set out, and a driver could not be discharged for violating speed regulations unless a warning letter had been given to the employee for the same offense within the preceding nine months. The examiner found that the evidence did not establish that Sanders and Dunbar violated the Company's speed and safety regulations. Sanders' truck was equipped by the Company with a tachograph. The examiner concluded that the tachograph charts "tipped the scales in favor of Sanders on the speeding issue." There is considerable conflicting evidence in the record on the speeding issue. The respondents contended that the exact point where a speed zone starts could not be pinpointed within several thousand feet on the tachograph chart, and such contention has considerable support. However, the examiner relied upon the fact that the chart at the approximate location of the speed regulation zones in controversy indicated a slowdown for the distance required to pass through such zones. Inasmuch as both the examiner and the Board agreed that neither Sanders nor Dunbar violated any speed laws on January 12 and 13, 1953, and there is ample evidence to support such a finding, we deem it unnecessary to discuss in further detail the extensive evidence relative to the claimed speed violations.

Some question is raised as to the admissibility of the tachograph charts in evidence. The tachographs were installed and maintained by the Company. The drivers were required to turn in the tachographs charts. Under such circumstances the charts were admissible as business records under 28 U.S.C. § 1732. The weight to be given the charts was for the determination of the fact-finding body.

The Board was warranted in finding that Baker and Lohrey knew there was no foundation for the charges of speed violations by Sanders and Dunbar. Consequently, it is apparent that the disciplinary action taken against the said employees was for reasons other than speeding.

The complaint here involved is summarized by the Board in its opinion as follows:

"Stated in broad terms, the theory upon which this complaint was primarily litigated was that the Company discharged Sanders and threatened to discharge Dunbar, following the exertion of Union pressures on sympathetic Company officials, because these two employees played a prominent role in a `dissident' employee movement which the Union found objectionable. This dissident movement was directed toward obtaining, through clearly protected activities which included the invocation of Board procedures, a change in the administration of certain contractual `seniority' provisions having an adverse effect on the work assignments of the dissidents.¹ As an additional complementary theory, the General Counsel also set out to establish the Company's independent animus against Sanders and others of the dissident employee group. This theory has as its basis the argument that the dissidents' activities sought to disrupt the harmonious relations between the Company and the Union, and had included action involving the Respondents in a Board complaint proceeding seeking to impose upon them back pay and other financial liabilities."

The examiner and the Board are in agreement on findings thus summarized by the Board:

"(a) Sanders' prominent leadership of the dissident employee movement; (b) Sanders' prominent role in the invocation of both intra-union rights of appeal to the Union's International body and of Board procedures, as a...