National Labor Rel. Bd. v. Texas Independent Oil Co.
| Decision Date | 20 June 1956 |
| Docket Number | No. 14680.,14680. |
| Citation | 232 F.2d 447 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TEXAS INDEPENDENT OIL COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Theophil C. Kammholz, General Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Edmond Wilson, Samuel M. Singer, James A. Ryan, Attys., N. L. R. B., Washington, D. C., for petitioner.
Langmade & Sullivan, Phoenix, Ariz., for respondent.
Before STEPHENS, FEE, and CHAMBERS, Circuit Judges.
This is a petition by the National Labor Relations Board for enforcement of its order of April 30, 1954, directed against respondent, Texas Independent Oil Company, Inc., ordering it to cease and desist from unfair labor practices, and to reinstate four employees: Van Horn, Cox, Richins, and Almada, with back pay.
Respondent in 1953 started a truck line for the transportation of gasoline from a refinery at El Paso, Texas, to Phoenix, Arizona. M. A. Quisenberry was employed by the company to set up the operation and to employ the men necessary to institute and maintain operations between Phoenix, Arizona; Lordsburg, New Mexico; and El Paso, Texas.
The trial examiner found that in hiring men, Quisenberry was greatly influenced by the fact of whether the particular man was or was not in good standing in the union, or was or was not inclined to promote union activities on the job. Credited testimony was given at the trial that Quisenberry would ask prospective drivers whether or not they were union members, and various other questions that were designed to convey the idea that their chances of continued employment would be seriously affected by their engaging in union activities. Questions of this nature were subsequently asked of the drivers after their employment was commenced. Quisenberry admitted that he told prospective drivers and employees that he wanted the job to remain non-union until "we get rolling". The trial examiner did not credit this testimony of Quisenberry as to the duration of his antipathy toward unionism, but held that his intention was to keep the job unorganized as long as possible.
The examiner, at the conclusion of the hearings, held that, on the basis of creditable testimony of certain employees including Quisenberry, respondent was guilty of unfair labor practices in violation of Section 8(a) (1) of the National Labor Relations Act,1 and named specific violations which were supported by substantial evidence. The trial examiner, in addition, held that respondent was in violation of Section 8(a) (3) of the Act because of the discriminatory discharge of employees Cox, Richins, and Van Horn, but held that employee Almada was discharged for good cause.
The National Labor Relations Board, on review of the examiner's decision, agreed in all respects except that it was additionally held that Almada was discriminatorily discharged and not for cause.
Respondent here resists enforcement of the Board's order by arguing:
(1) That the acts which the examiner and the board found to be committed by Quisenberry are not acts of unfair labor practice within the meaning of the National Labor Relations Act.
(2) That even if such acts are held to be unfair labor practices, that they are not imputable to respondent because Quisenberry was a mere employee and the company had no knowledge of such acts nor were they ratified by the company, but that the company upon learning of such acts immediately ordered Quisenberry to desist from repeating them.
(3) That there was shown cause for the discharge of each employee and there was no finding of fact either by the examiner or the board that the cause for discharge was not established, or that it was not sufficient in itself to warrant the discharge in each case.
It is fundamental that it is the function of this court, when acting on a petition for enforcement of a National Labor Relations Board order, to grant such order if the findings of the board with respect to questions of fact are supported by substantial evidence on the record considered as a whole, and the appropriate law has been applied to the facts.2
As to point (1), we disagree with respondent. The acts of Quisenberry were more than mere interrogatories between two minor employees. They were implied threats, as the board found, that continued employment and employment itself would be dependent on non-instigation of union activities. Quisenberry told employee Almada that "he would have to drop his union card or else". He exacted a promise from Almada that he (Almada) would refrain from union activities before Almada was hired. Quisenberry asked Cox if he was keeping ing up his union book. He also inquired in great detail as to the union background of almost every employee he hired. There are other specific instances in the record, but those mentioned are sufficient when considered as a whole. The finding of the board on this point is clearly substantiated by the evidence.
As to point (2) we would agree with respondent if Quinsenberry here were a minor employee of respondent. But we do not place him in such a category. He was a supervisory employee in direct contact with the vice-president of the company, Horace Steele. We likewise do not feel constrained to say that respondent did not have knowledge of such practices by Quinsenberry. Credited testimony brought out that Quisenberry told Almada that "Old Man Steele" told him to get rid of Almada because he was "union all the way through". Van Horn's testimony, which was credited by the examiner, brought out the fact that Quisenberry told Van Horn that "Old Man Steele" told him to get rid of him because he was instigating the union. In National Labor Relations Board v. Hinde & Dauch Paper Co., 4 Cir., 1948, 171 F.2d 240, 241, it was said:
"If there were evidence that these foremen were speaking with the authority of respondent, or if their expressions of sentiment were so numerous or of such a character as to justify the inference that they were made with respondent\'s approval in furtherance of an anti-union policy, an order directing respondent to cease and desist from interfering with its employees in the exercise of the rights guaranteed by sec. 7 of the...
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