National Labor Relations Bd. v. Missouri Transit Co.
| Decision Date | 27 December 1957 |
| Docket Number | No. 15796.,15796. |
| Citation | 250 F.2d 261 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MISSOURI TRANSIT COMPANY, and its President, P. W. Fletcher, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frederick U. Reel, Atty., N. L. R. B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost Asst. Gen. Counsel, and Duane B. Beeson, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.
Glenn L. Moller, St. Louis, Mo. (Moller & Talent, St. Louis, Mo., on the brief), for respondents.
Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.
The National Labor Relations Board has petitioned this Court, under Section 10(e) of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S. C.A. § 151 et seq.), for the enforcement of an order issued by the Board against the respondents on August 14, 1956, following the usual proceedings under Section 10 of the Act. (116 N.L.R.B. 587.) The respondents ask that the petition be denied.
The Missouri Transit Company, a Missouri corporation, was at all times here material a common carrier of passengers by bus for hire, operating under authority of the Interstate Commerce Commission and of the public service commissions of the States of Iowa and Missouri. The Company was engaged in two operations. One was a short-line intrastate shuttle-bus-line operation between Waynesville, Missouri, and Fort Leonard Wood, Missouri, and the other was a long-line interstate bus operation between the latter place and Cedar Rapids, Iowa. P. W. Fletcher was the President and in control of the Company.
Early in August 1954, Lee R. Blackwell, President and Business Agent of Local 864 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L.C.I.O., undertook to organize the employees of the Transit Company for the purpose of having that Union become their representative for purposes of collective bargaining. Shortly thereafter, John Wagner, an "over-the-road" or long-line bus driver, and Dillard W. Wilkes, a shuttle-line bus driver, were discharged by Fletcher, ostensibly for cause. The campaign of the Union to organize the shuttle-bus-line drivers resulted in a representation hearing before the Board on October 1, 1954.
On October 22, 1954, Fletcher, on behalf of the Transit Company, made an agreement with a competitor in the shuttle-bus-line operation, whereby the competitor bought all the equipment used in the operation of the shuttle route, and undertook to operate it. This resulted in the discontinuance, on October 29, 1954, by the Company of the shuttle-line route and service, and terminated the employment of its shuttle-line drivers.
Upon charges of unfair labor practices, filed by the Union with the Board in December 1954, the General Counsel of the Board issued a complaint in December 1955, charging, in effect, that to discourage the unionization of their employees the respondents had, in violation of Section 8(a) (1) and (3) of the Act, threatened, interrogated, and promised benefits to, the employees; had discharged two employees because of their presumed leadership in the union movement; and had discontinued the shuttle-line operation and ended the employment of those engaged in that operation.
A hearing was held and testimony taken before a Trial Examiner of the Board at Waynesville on January 31 and February 1, 1956. In his Intermediate Report the Trial Examiner sustained the charges made by the General Counsel of the Board in his complaint. The respondents on April 4, 1956, served exceptions to the Intermediate Report, and also moved the Board to set it aside and grant a new hearing because of the alleged bias and prejudice of the Trial Examiner and the asserted misconduct of the representative of the General Counsel at the hearing. In the alternative, the respondents asked the Board to reopen the hearing to permit them to introduce additional evidence.
The Board overruled the respondents' motion. The Board found that Wagner and Wilkes had been discharged because of union activities, in violation of Section 8(a) (3) and (1) of the Act. The Board also found that the respondents disposed of the shuttle-bus route and the equipment used in operating it, and discharged the shuttle-bus drivers, for discriminatory reasons, in violation of Section 8(a) (3) and (1) of the Act.
Needless to say, the respondents contended throughout the proceedings before the Board, and still contend, that Wagner and Wilkes were discharged not because of union activities but because of an unprovoked assault upon another employee, and that the shuttle-bus operation had been disposed of solely because it was unprofitable, and that the effort of the Union to organize the employees had nothing to do with it. These issues were, under the evidence, issues of fact for the Trial Examiner and the Board to determine, and not questions of law for this Court. See Kitty Clover, Inc. v. National Labor Relations Board, 8 Cir., 208 F.2d 212, 214.
The contentions of the respondents that they were denied a fair hearing before an unbiased trial examiner, we think are without merit and are adequately answered by the Board in its decision. There is no adequate basis in the record for a ruling that the Trial Examiner was intentionally or prejudicially unfair in his conduct of the hearing or in his rulings of which the respondents complain. Cf. Cupples Co. Manufacturers v. National Labor Relations Board, 8 Cir., 106 F.2d 100, 113; Donnelly Garment Co. v. National Labor Relations Board, 8 Cir., 123 F.2d 215, 219. Rather obviously, in view of the factual situation out of which the controversy arose, a remand of the proceeding for a retrial of the issues would be not only unwarranted, but futile.
The only important question in this case, we think, is whether that part of the remedy prescribed by the Board which requires the reimbursement of the shuttle-line bus drivers for loss of earnings after October 29, 1954, when the shuttle-line operation was terminated by the sale of equipment and complete abandonment of the operation, is subject to enforcement.1
With respect to this question, counsel for the Board say in their brief:
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