National Labor Relations Bd. v. Adkins Transfer Co.

• Decision Date: 05 October 1955
• Docket Number: No. 12371.,12371.
• Citation: 226 F.2d 324
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioners, v. ADKINS TRANSFER COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

226 F.2d 324 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioners, v. ADKINS TRANSFER COMPANY, Inc., Respondent.

No. 12371.

United States Court of Appeals Sixth Circuit.

October 5, 1955.

Owsley Vose, Washington, D. C. (David P. Findling, Marcel Mallet-Prevost, Elizabeth W. Weston, Alice Andrews, Washington, D. C., on the brief), for petitioner.

Judson Harwood, Nashville, Tenn., for respondent.

Before McALLISTER, MILLER, and STEWART, Circuit Judges.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed a petition for enforcement of its order issued against respondent, Adkins Transfer Company, finding it guilty of violation of Section 8(a) (3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq., and directing it to offer reinstatement to two former employees in any available jobs, at Nashville, Tennessee, substantially equivalent to those in which they had been employed before their discharge; to place them on a preferential hiring list in the event such employment was not available; to give them priority in filling any position for which they were qualified; and to save them whole by means of appropriate back pay. Respondent company submits that it was guilty of no violation of the Act; that the discharge of the two employees resulted because respondent determined that it could not profitably carry on the maintenance and servicing department in which they were engaged; and that, in lieu of paying the high wages required by the union, of which the employees were members, respondent terminated its maintenance and service work at Nashville, and arranged to have it done by outside business concerns.

Respondent is a small truck line operator, carrying on its business between Chicago and Nashville, with the latter as the extreme southern point served. Its Nashville terminal utilized approximately eight trucks per day in transporting shipments to other cities, and four pick-up trucks for local work in Nashville. There is no evidence of any anti-union attitude on the part of the respondent, but, on the contrary, it has been on good terms with the local Teamsters Union, which is the charging party in the case. In fact, all of its road drivers are members of the Teamsters Union, and all of its local pick-up men and dock men are also members of the union. In addition, all extra employees engaged by respondent are procured by calling the local Teamsters union hall, whereupon the union sends such extra employees to respondent's place of business. This practice is followed in spite of the fact that there is in effect in the State of Tennessee the type of statute known as an open shop statute.

In November, 1953, respondent employed a mechanic and a helper whose duties were exclusively the maintenance and servicing of respondent's trucks. These are the employees involved in this case. In the same month that their employment commenced, the two employees joined the local Teamsters Union. Thereafter, the union demanded that respondent bargain with it for the purpose of entering into two contracts — one, a mechanic's contract for one of the employees, and the other, a service contract, for the other employee. At that time, one of the employees was paid at the rate of $1.25 per hour, and the other, 75 cents per hour. The union representative met with respondent's president and showed him copies of the union's uniform contracts covering mechanics and service men which were currently in effect between the union and other Nashville motor carriers. The various job classifications and the applicable wage rates specified in the contracts were discussed. As the union representative pointed out, under the contracts which he proposed that respondent adopt, one of the employees would receive $1.75 an hour, an increase of 50 cents over his current rate, and the other would receive between $1.25 and $1.40 per hour, an increase of between 50 and 65 cents over his current rate. There was no discussion as to whether a compromise could be reached on wage scales.

The first meeting between the union representative and respondent's president took place November 16. A second meeting occurred November 20. On the next day, the foreman came into the shop where the two employees were working, and stated that he had bad news for them — that the president was going to close the shop because he was not going to pay the union scale. At the direction of respondent's president, the foreman thereafter discharged the two employees. Respondent's president testified with regard to this incident, without contradiction or challenge, that it was "purely and simply a question of costs." Respondent's mechanical work since the discharge of the employees has been done on a job-by-job basis by local truck and automobile dealers, and the servicing has been done partly by its own operating employees and partly by independent business concerns. Respondent's president testified that he found this method of having the mechanical work done had resulted in even lower labor costs than those entailed by its former method of operation, under which respondent had paid $2.00 an hour for the combined services of the two employees. Respondent never replaced the two men, and its president testified on the hearing that it did not intend to.

A hearing was held before the trial examiner who, after listening to the witnesses, filed findings of fact, conclusions of law, and a recommendation. He set forth in his findings that respondent's president testified, credibly, that, based upon his experience in dealing with the union, he believed that if respondent had continued its maintenance department at Nashville without raising the wages of the two employees to meet the union scale, a strike would have ensued which would have effectively closed down respondent's entire business operations. The examiner stated that the accuracy of such opinion was substantiated by the statement of the union representative who testified, on the hearing, that he knew of no instance when the union permitted a contracting employer to pay union members different wage rates than were provided in the union's uniform industry agreement for the particular employee classification. He found that respondent's president, rather than capitulating to the union demands and increasing the wages of the two employees, which he considered economically disadvantageous to respondent, had discontinued the maintenance department and discharged the two maintenance employees. He further found that respondent's president testified that the fact that the two employees joined the union did not motivate their discharge. The trial examiner concluded his findings with the following statement: "This is not a case where an employer who is generally hostile towards unions and opposes employee organization seeks to defeat his employees' efforts to engage in collective bargaining by discontinuing a department in which a majority of the employees have selected a collective bargaining representative. * * * In this regard, it is significant that the complaint does not charge that the Respondent has refused to bargain in good faith with the Union. Here, the Respondent had only two practical choices, either to pay its maintenance employees the wage rates demanded by the Union, or discontinue its maintenance department. No area for bargaining with the Union existed." The examiner then went on to point out that the union representative had testified that, if respondent had kept the maintenance department open but had declined to sign the union contract, the union...