National Labor Relations Board v. Booker

• Decision Date: 16 June 1950
• Docket Number: No. 12744.,12744.
• Citation: 180 F.2d 727
• Parties: NATIONAL LABOR RELATIONS BOARD v. BOOKER.
• Court: U.S. Court of Appeals — Fifth Circuit

180 F.2d 727 (1950)

NATIONAL LABOR RELATIONS BOARD v. BOOKER.

No. 12744.

United States Court of Appeals Fifth Circuit.

February 6, 1950.

Rehearing Denied March 11, 1950.

Rehearing Granted April 10, 1950.

Further Rehearing Denied June 16, 1950.

Charles M. Paschal, Jr., Attorney NLRB, Atlanta, Georgia, David P. Finding, Assoc. Gen. Counsel, NLRB, Washington, D. C., A. Norman Somers, Asst. Gen. Counsel, NLRB, Washington, D. C., for petitioner.

Robert M. Hitch, Jr., Savannah, Georgia, Malberry Smith, Jr., Savannah, Georgia, for respondent.

Before HOLMES, WALLER and RUSSELL, Circuit Judges.

HOLMES, Circuit Judge.

The order herein sought to be enforced was entered on July 28, 1948. This court has jurisdiction of the proceedings under Section 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), the unfair labor practices having occurred in Georgia, within this judicial circuit.

On July 3, 1946, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 897, hereinafter called Teamsters, filed an amended charge with the National Labor Relations Board. On July 8, 1946, the board issued its complaint against J. A. Booker, hereinafter referred to as respondent, alleging that respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(1), (3), and (5), 29 U.S.C.A. § 158(1, 3, 5), and Section 2(6) and (7) of the Act, 49 Stat. 449, 29 U.S.C.A. § 152(6, 7). Copies of the complaint and amended charge, accompanied by notice of the hearing to be had, were duly served upon respondent and Teamsters. On July 16, 1946, the acting Regional Director received a letter signed by respondent denying all of the allegations of the complaint and stating that any action taken with respect to the individuals named therein had no connection with their activities on behalf of labor organizations. This letter constitutes the only answer filed by the respondent.

A hearing was had at Savannah, Ga., in July and August, 1946, before a duly designated trial examiner. The trial examiner issued his intermediate report finding that the respondent had engaged in and was engaging in certain unfair labor practices, in violation of Section 8(1), (3), and (5), of the Act, and recommended that it be ordered to cease and desist therefrom and to take certain affirmative action. Upon exceptions duly filed, the board reviewed the rulings of the trial examiner, and found as a matter of fact that respondent did interfere with, restrain, and coerce his employees in the exercise of their rights guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157; that respondent discriminated against employees Jones, Waters, Smith, Houston, Anderson, C. W. Collins, and C. B. Collins, Jr., in regard to tenure, terms, and conditions of employment, in violation of Section 8(3) of the Act; that another employee, Blackwell, was discharged, not for discriminatory reasons, but because he had engaged in a fist fight with respondent; that Teamsters was at all material times the representative of the employees within Section 9(a) of the Act, 29 U.S.C.A. § 159(a), and that respondent refused to bargain collectively with Teamsters, in violation of Section 8 (5) of the Act.

On the basis of its findings, the board ordered that respondent cease and desist from refusing to recognize and bargain collectively with Teamsters, discouraging membership in same, or in any other manner interfering with, restraining, or coercing, his employees in the exercise of their right to self-organization. The board further ordered that the respondent offer Waters, Smith, and Jones immediate and full reinstatement to their former or equivalent positions, without prejudice to their seniority rights and privileges, with full pay for the period of the discrimination, less net earnings during such period. Respondent was ordered to make whole C.W. Collins, C. B. Collins, Jr., Houston, and Anderson, for any loss of pay they may have suffered by reason of respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount they would have earned as wages during the period from the date of their discriminatory lay-off to the date of their reinstatement, less their net earnings during such period. If the record as a whole contains substantial evidence to support these findings, we are not at liberty to disturb them.

The evidence shows that respondent resorted to numerous devices to impede the efforts of his employees to engage in the freedoms guaranteed to them by Section 7. He interrogated them concerning their union membership, the extent of their organization, the identity and activity of other members; and he threatened liquidation of the business rather than to allow it to be "messed up" by a union. He asked them for a statement of nonmembership in any union, coupled with a request for a discussion regarding wage increases; he promised benefits for members revoking union membership; and he negotiated with a union representative other than the one representing the majority of his employees, besides negotiating with the employees directly, which resulted in the grant of a wage increase. These facts support the board's finding that respondent did interfere with, restrain, and coerce his employees in the exercise of their rights guaranteed by Section 7 of the Act.

Respondent demoted Jones when he gave Polk the job of dispatcher in Jones' place and left Jones the job of transmitting Polk's orders to the garage. When respondent found out that Jones belonged to the union, he asked him which meant more to him, his job or the union, and said he was not sure that he wanted a union there. Respondent took time to think the matter over, and later called Jones into his office and told him that Polk, the only driver who had refused to join the union, would direct the operation of the busses, and that Jones would transmit Polk's orders to the garage. In the light of these facts, the board found that the demotion was effected entirely because of Jones' membership in the union.

The board found that respondent discriminatorily discharged Waters, who was one of the most active employees in organizing the union, and who played a leading role in the formation of its demands. He was working on a 7-day week basis when he asked Polk for the next Sunday off because his doctor had told him to take some medicine. Polk refused the request unless Waters would bring him a doctor's certificate that he was ill. Waters did not report for duty on that Sunday, and the following day he found a substitute driver...