National Labor Rel. Bd. v. Red Arrow Freight Lines

• Decision Date: 14 May 1954
• Docket Number: No. 12672.,12672.
• Citation: 213 F.2d 260
• Parties: NATIONAL LABOR RELATIONS BOARD v. RED ARROW FREIGHT LINES, Inc., et al.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 260 (1954)

NATIONAL LABOR RELATIONS BOARD v. RED ARROW FREIGHT LINES, Inc., et al.

No. 12672.

United States Court of Appeals Fifth Circuit.

May 14, 1954.

David P. Findling, Asso. Gen. Counsel, N.L.R.B., A. Norman Somers, Asst. Gen. Counsel, N.L.R.B., Louis Libbin, Atty., N.L.R.B., Julius A. Serot, Atty., N.L.R. B., Winthrop A. Johns, Asst. Gen. Counsel, N.L.R.B., George J. Bott, Gen. Counsel, Joseph I. Nachman, Washington, D. C., for petitioner.

Sam R. Sayers, Reagen Sayers, Ft. Worth, Tex., Jack Binion, Houston, Tex., Scott P. Sayers, Fort Worth, Tex., Rawlings, Sayers, Scurlock & Eidson, Fort Worth, Tex., of counsel, for respondents.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

Filed September 13, 1951, by the National Labor Relations Board, petitioner in the above styled and numbered cause, against the corporate respondents named in the decree of this court entered May 1, 1950, the petition sought an order to show cause and a decree adjudging respondents in contempt.

Respondents denying and otherwise joining issue with the claims made in the petition, both petitioner and respondents were heard orally and by briefs, and this court filed an opinion¹ in the nature of a pre-trial memorandum and order in which, construing the invoked decree and defining and fixing the scope and limits of the inquiry, it appointed an examiner to take and report the testimony.

Reaffirming the uniform, the unwavering, position of this court, that the purpose of the statute was to protect not the rights of particular unions to obtain representation contracts — they have no such rights — but the rights of employees to be represented by a bargaining agent of their own choosing, we rejected the contention of the Board, that the matter for inquiry was whether UTE, whose formation and recognition the Board charged was in contempt of our decree, "is a successor to the Association in the sense that the employees who have selected UTE as their bargaining agent are the same employees who selected the Association as such." Stating, "We think this is not at all the issue but that it is whether the employees have selected UTE as their representative without interference, coercion, or persuasion by the respondents", we directed the examiner to confine the inquiry to the controlling issue in the case, whether UTE really represents the uncontrolled and uninfluenced choice of the employees of respondents, or whether, as was found to be the case with the Association, it was, or is, dominated, controlled, or influenced by the respondents; and membership in, and affiliations with, it were induced in whole or in part by the unlawful acts of responsible officers or agents of respondents.

The testimony has now been taken and returned into court, and the petitioner and respondents, except Brown Express,² which on October 10, or 12, 1951, shortly after the contempt proceeding was filed, ceased recognizing UTE and began to recognize the A. F. of L. Teamsters Union as bargaining agent for its employees, have appeared in argument orally and by briefs, and all matters at issue are before us for decision.

The question as to whether any or each of the three respondents who are continuing to recognize UTE should, because of its doing so, be found guilty of contempt of the order of this court, must, of course, be answered by determining whether, upon and by the testimony taken and reported by the examiner, its guilt is clearly established.³

Before proceeding to that inquiry and in order to a complete understanding of the matters presented for decision, a brief discussion of the enforcement proceedings which culminated in the decree, contempt of which is charged here, is desirable. In 1946, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., which had been for sometime endeavoring without success to represent the employees of each of the respondents as bargaining agent, filed with the Board eight unfair labor practice charges, each separately charging a different respondent, under case numbers 16-C-1240, 16-C-1212, 16-C-1214, 16-C-1215, 16-C-1216, 16-C-1217, 16-C-1218, and 16-C-1247. Each of these charges was directed at a rival independent and unaffiliated labor organization, known as National Association of Motorized Common Carrier Truck Line Employees, with which each of the respondents had a contract as bargaining agent of its employees, and each charged that the particular respondent named had aided and assisted the association, and had dominated and interfered with its operation and administration.

Alleging as to the respondent, Red Arrow Freight Lines, Inc., that it had formed the Association in 1937, and as to each of the other respondents that in 1944 and 1945, it had dominated and interfered with it, each of the charges sought to unseat the Association as bargaining agent. Though each respondent was thus separately and not jointly charged, the Board, over the vigorous opposition of respondents, ordered the charges consolidated for hearing and, pursuant to said order, issued one complaint against them all. The hearing following resulted in a lengthy report in which, dismissing so much of the complaint as alleged in substance that the respondents, other than Red Arrow, had formed the Association, the examiner found that Red Arrow had assisted in forming it, but that since the other respondents had not recognized it until some ten years later, they could not have formed it. He found, however, as to each of them, that it had dominated and interfered with the Association, and he recommended an order requiring each respondent to disestablish it as representative of its employees.

The Board, approving all the examiner's orders and findings except the dismissal order, found that each of the respondents, in recognizing the Association, had in effect formed it and, on the basis of the examiner's findings, the Board entered the order which underlies this proceeding.

Thereafter, upon a petition for enforcement of the order, this court, in an opinion in 180 F.2d 585, finding that there was no evidence that there had been any misuse of the Association by any respondent to further the interest of any respondent as against the interests of the employees who had selected it as their bargaining agent, found further that the record contained evidence sufficient to support the Board's findings that, in violation of the prohibition of the statute, each of the respondents had interfered with, or given support to, the Association, and, that on the basis of this conclusion, the Board was entitled to an enforcement decree.

It is against this background of separate cases consolidated for trial by the Board, over respondents' objections, that the charges of contempt against each respondent must be viewed and determined in the light of the evidence offered by the Board and by each respondent. Further and more important, as will be made more clear as we proceed, the testimony must be reviewed and our determination must be made in the light of the fundamental background that the real question here as to each of the three respondents, whose employees have chosen the independent union UTE, is whether the evidence establishes that that choice was not the free choice which the statute accords and secures to employees but was made under circumstances of compulsion, coercion, or other prohibited interference on the part of each or any of the respondents which would constitute a contempt by it of this court's decree.

We turn then to a consideration of the mass of testimony and exhibits offered in the course of making the voluminous record and to the many offers of proof by respondents which were rejected by the examiner but as to which, in accordance with the order appointing the examiner, a record was made showing the testimony which, but for the exclusionary ruling, would have been given.⁴

In support of its charges, petitioner offered the testimony of fourteen witnesses. Of these: eight were employees or former employees at Dallas, Texas, of Brown Express, respondent against whom petitioner is not now requesting affirmative relief; three were former employees of respondent, Merchant Fast Motor Lines; one was a present and two were former employees of respondent, Red Ball Motor Freight, Inc.; none were or had been employees of Red Arrow Freight Lines.

Of the fourteen witnesses, all but one were members of the A. F. of L. Teamsters Union, a competitor of UTE for representation.

In rebuttal of the testimony of petitioner's witnesses and in support of its positive contention that it had not unlawfully or otherwise disobeyed the orders of this court, the respondents offered the testimony of many witnesses.⁵

The Board, in its brief, approaching the case as though this court's decree had the effect of preventing members of the...