National Labor Relations Board v. Stewart, 14380.
| Decision Date | 08 October 1953 |
| Docket Number | No. 14380.,14380. |
| Citation | 207 F.2d 8 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. STEWART et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas F. Maher, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, Bernard Dunau, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
George E. Seay, Dallas, Tex., Chas. F. Potter, Tyler, Tex., Paul Branch, Kilgore, Tex., Lasseter, Spruiell, Lowry, Potter & Lasater, Tyler, Tex., Malone, Lipscomb & Seay, Dallas, Tex., for respondents.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
This case is before the court on petition of the National Labor Relations Board, seeking enforcement of its order requiring respondents, W. E. Stewart and Lela Stewart, doing business as Stewart Oil Company, to cease and desist from discouraging membership in the Oil Workers International Union, C. I. O., or any other labor organization of their employees, by discharging or refusing to reinstate any of their employees, or by otherwise discriminating in regard to their hire, or tenure of employment; from refusing to bargain collectively with the union; from dealing individually with employees in derogation of their bargaining representative; from interrogating their employees concerning their union membership, threatening them with economic reprisal, or in any other manner interfering with, restraining, or coercing their employees in the exercise of their rights. The order further directed respondents to offer reinstatement to two employees and make them whole for any loss of pay they may have suffered by reason of respondents' discrimination against them; to make whole five additional employees; to bargain collectively with the Union upon request and embody any understanding reached in a signed agreement; to make available to the Board certain records necessary to analyze the amounts of back pay due under the order; and to post appropriate notices.
First, the respondents challenge the Board's finding that all pumpers, switchers, roustabouts, truck drivers and mechanics employed at respondents' East Texas Field constitute an appropriate unit for collective bargaining; and its further finding that on March 23, 1951, the Union represented seven of respondents' thirteen employees in such unit. We do not agree with the respondents that employees at their Louisiana field should also have been included in the unit. True there is some contact between the two fields, but there is very little interchange of personnel and the two fields are geographically separated by at least eighty miles. Moreover, we think that the Board did not err in including A. D. Adams in the unit. Although Adams temporarily substituted for one brief period for a supervisory employee who was absent due to illness, he was regularly employed as a roustabout, an admittedly nonsupervisory classification. Such occasional performance of supervisory duties does not make an employee a supervisor within the meaning of the Act. West Texas Utilities Company, Inc., 94 N.L.R.B. 1638, 1642, enforced by this court, 195 F.2d 519; N. L. R. B. v. Quincy Steel Casting Co., 1 Cir., 200 F. 2d 293, 296. Accordingly, we agree with the Board that on March 23, 1951, the Union represented seven of respondents' thirteen employees in an appropriate unit at its East Texas Field.
Respondents next contend that the Board erred in finding that they violated sections 8(a) (1) and (3) of the Act by discharging pumpers G. T. McClure and Emmet R. Broadus on April 6, 1951, because they refused to sign individual contracts of employment at a time when the Union, as exclusive bargaining representative of a majority of respondents' employees in an appropriate unit, had made a request to bargain. The Board found that by requiring the two employees to sign individual employment contracts after they had selected a bargaining representative to negotiate a collective contract for them, respondents restrained and coerced their employees in the exercise of their statutory rights in violation of Section 8(a) (1); and it further found that by discharging Broadus and McClure upon their refusal to comply with respondents' requirement of signing such contract, respondents discriminated in regard to their hire and tenure of employment thereby discouraging membership in the Union in violation of Section 8(a) (3) of the Act. Respondents seemingly admit that under certain circumstances the Board might be correct in concluding as it did but seek to distinguish the instant case on the ground that there was no attempt to change or vary the existing terms of employment and the contracts as drawn were terminable at will by either party. However the vice of respondents' conduct lies in their insistence upon individual dealing when they were under a statutory obligation to engage in collective bargaining. Respondents also argue that their purpose in offering the individual contracts of employment was to satisfy the government's Wage and Hour investigators and they should not be penalized under the National Labor Relations Act for an act performed in compliance with the Fair Labor Standards Act.1 The argument makes good sense so far as it goes but it is not available to respondents under the facts of this case for the purpose here of negotiating individual contracts was to "keep the Labor Board off him," meaning the company. We think the Fair Labor Standards Act and the National Labor Relations Act are not mutually exclusive but parts of harmonious legislation and that respondents may not insist on individually negotiated contracts of employment under the Fair Labor Standards Act when the National Labor Relations Act demands collective bargaining. This conclusion finds support in Section 7(e) of the Fair Labor Standards Act which specifically mentions and sanctions an agreement made as the result of collective bargaining by representatives of employees.
The third issue relates to the Board's finding that respondents interrogated their employees about union activities and uttered threats of reprisal in violation of Section 8(a) (1) of the Act. While the evidence as to unlawful interrogation is of debatable value, we are in no doubt that the record fully supports the finding that respondents threatened their employees with reprisal for their Union activities. Several employees testified that Assistant Superintendent Sanders quoted Superintendent Dorris as saying that he would automatically fire the first employee he caught with a union card.
The fourth issue concerns the Board's finding that respondents discharged employees Adams, Allen, Lindsey, Hodges, and Elmer R. Broadus on April 16, 1951, because of their membership in the Union, in violation of Section 8(a) (3) and (1) of the Act. On April 16, 1951, after the Union had made repeated attempts to secure recognition and bargaining conferences, Superintendent Dorris notified the above-named men, who were regularly employed on the two pulling units then in use at the East Texas Field, that the pulling machines would be "stacked" for thirty days and during this period of time the work would be contracted to outside firms to ascertain whether it could be done more economically. When one of the employees asked whether this meant that he had better look for another job, Dorris replied in the affirmative. However, despite these statements of Dorris the machines did not remain "stacked" for thirty days. The Trial Examiner and the Board found that both machines were operating within a few days after April 16, and, although the record does not definitely disclose the exact date when the machines were put back in operation, it is reasonably clear that within two weeks thereafter operations were resumed and new employees were hired. Petitioner contends that the evidence conclusively demonstrates that respondents entertained no bona fide plan to curtail operations for economy reasons and the shutdown was a mere sham used by respondents in order to get rid of the Union men. On the other hand respondents now contend that the layoff was occasioned by the need for repairs to...
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