National Labor Relations Board v. Wheeling Pipe Line

• Decision Date: 24 January 1956
• Docket Number: No. 15369.,15369.
• Citation: 229 F.2d 391
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHEELING PIPE LINE, Inc., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

229 F.2d 391 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHEELING PIPE LINE, Inc., Respondent.

No. 15369.

United States Court of Appeals Eighth Circuit.

January 24, 1956.

Arnold Ordman, Atty., N. L. R. B., Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Kalvin Kahn, Atty., N. L. R. B., Washington, D. C., were with him on the brief), for petitioner.

Lawrence B. Burrow, Jr., Little Rock, Ark. (J. A. O'Connor, Jr., El Dorado, Ark., Lawrence B. Burrow, Sr., and Moore, Burrow, Chowning & Mitchell, Little Rock, Ark., were with him on the brief), for respondent.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

WOODROUGH, Circuit Judge.

The decision of the National Labor Relations Board and its Order of January 20, 1955, against the respondent, Wheeling Pipe Line, Inc., here involved, are reported at 111 N.L.R.B. No. 43. This petition for enforcement of the Order of the Board presents the question whether, on the record as a whole, there is substantial evidence to support it.

The Company has its principal terminal at El Dorado, Arkansas, and transports petroleum and related products in five adjoining states, employing at the relevant time eighty-one drivers constituting a unit appropriate for bargaining. No question as to the jurisdiction is involved. The events that are relevant arose out of an organizational campaign among respondent's drivers and a demand for recognition of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, A.F.L., which a majority of 48 out of the 81 drivers chose to represent them. The Company refused the demand for recognition of the Union and a strike in protest of the refusal ensued.

The Board found that in the course of the campaign the respondent threatened and interrogated its employees with respect to their union membership and activities, and solicited individual strikers by promise of benefit to return to work, thereby violating Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). The Board found further that respondent's refusal to bargain with the Union constituted a violation of Section 8(a) (5) and (1) of the Act and the Board also found that respondent violated Section 8(a) (3) and (1) of the Act by discriminatorily discharging employee Arthur Cross because of his union activities and by paying returning strikers a lesser Christmas bonus than they would have received had they not participated in the strike. The Order, for which enforcement is prayed here, was based upon the findings. If they are supported by substantial evidence, the order should be enforced.

The examiner who saw and heard the witnesses reported his findings in detail in his Intermediate Report in which he undertook to set out and assess all the evidentiary facts relied on by respondent as well as those opposed.

The Board considered the report with the exceptions and briefs of the respondent and the entire record and adopted all of the examiner's findings, conclusions and recommendations that are here relevant. That action of the Board was unanimous except that one member dissented from the majority finding that respondent violated Section 8(a) (3) and (1) of the Act by paying returning strikers the lesser Christmas bonus.

None of respondent's points against enforcement of the Order is directed against the Board's findings to the effect that certain of the Company's supervisory employees discouraged union organization by threatening and interrogating employees in respect to their union membership and by solicitation of strikers. The contentions for respondent here are: (1) that there was no substantial evidence to support the finding that respondent's refusal to bargain with the Union was in violation of the Act; (2) nor to support the finding that respondent discharged the employee Arthur Cross because of his union activities; (3) nor to justify the finding that respondent violated Section 8(a) (3) and (1) in paying returning strikers diminished Christmas bonuses.

The refusal to bargain. The respondent characterizes the Board's finding respecting respondent's refusal to bargain with the Union as "the keystone of the entire structure" of the Board's case and it is very earnestly insisted that the refusal to bargain by respondent's president Mr. Newell was "in good faith and not in bad faith." It is not contended that the examiner failed to report and discuss the evidentiary and ultimate facts upon which determination of the issue had to be made, but the argument is that the examiner's statement of certain of the facts which tend to support respondent's claim of good faith "reflect the only logical and impartial answer to the question upon a consideration of the whole record." However, the record shows that both the examiner and the Board found from the evidence as a whole that the refusal to bargain was not made in good faith for just cause. The refusal to bargain necessarily delayed cohesion in action of the employees and collective bargaining, and the examiner found that the president intended that natural consequence of his act, and that he acted to gain time to destroy the majority which the Union had.

The Board unanimously adopted these findings and we do not find on the whole record that there is a lack of substantial evidence to support them. It is true president Newell testified that he "doubted their the Union's majority", "didn't believe they had a majority." He referred to "similar experiences several times before" and said "it had always come out in the end that we had the majority or at least we won the election."

But the evidence showed that the respondent, on hearing of the employee's organizational activities, interrogated the drivers concerning their union affiliation and activity and threatened reprisals. In addition the president, Newell, personally discharged Cross who was the main leader in the organization campaign. After the strike began, Newell continued efforts to undermine the Union by soliciting several strikers to return to work on the promise of better working conditions for them. In answer to the direct question put to president Newell whether there was anything to indicate to him that the Union did not have the majority which it in truth and in fact did have, he answered:

"A. Yes, because there are a lot, you take out of 80 men, there would have to be quite a number there to have a majority and seeing these groups grouped around the yard there at different times, there would only be three or four or five in a group, well, I didn\'t know how they were getting along and now if I had seen 50 or 60 out in a group or something like that, I could understand they had a majority."

Mr. Newell took the position that the Union would have to establish its majority by an election before he would recognize it and there was substantial evidence to justify the inference that he was counting on "coming out in the end with a majority" or "at least winning the election" rather than upon having any real doubt of the fact that the Union then had a majority. He made no inquiry of the Union's agents or, so far as it appears, of any one else as to who constituted the majority for the Union which then existed, but merely engaged in acts violative of the Act which were adapted to suppress it. The Board's finding that respondent's refusal to recognize and bargain with the Union was in violation of Section 8(a) (5) and (1) of the Act is supported by substantial evidence and is sustained.

The discharge of Arthur Cross. The evidence was that Cross worked for respondent in 1949 and after voluntarily leaving for a short time, was rehired in 1950 and worked more than two years. He was known as a good worker and two days before his discharge was assured by his...