NLRB v. American Manufacturing Company of Texas

• Citation: 351 F.2d 74
• Decision Date: 14 September 1965
• Docket Number: No. 21018.,21018.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN MANUFACTURING COMPANY OF TEXAS, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

351 F.2d 74 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN MANUFACTURING COMPANY OF TEXAS, Respondent.

No. 21018.

United States Court of Appeals Fifth Circuit.

September 14, 1965.

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Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Gary Green, Atty., Arnold Ordman, Gen. Counsel, Melvin J. Welles, Atty., N.L.R.B., Washington, D. C., for petitioner.

Karl H. Mueller, Harold E. Mueller, Mueller & Mueller, Fort Worth, Tex., for respondent.

Before BROWN and WISDOM, Circuit Judges, and ESTES, District Judge.

JOHN R. BROWN, Circuit Judge:

In this petition of the Board for enforcement of its order, we deal with the problem of a § 8(a) (5) failure to bargain from the Employer's¹ contracting out all of its extensive transportation activities at least partially from anti-union motivation. We enforce with some modification for remand.

The Board, finding that certain labor practices by the Employer constituted a violation of § 8(a) (1), (3), and (5) of the Act,² entered in November 1962 its usual cease and desist order with the customary order to bargain with the Union³ upon request. But it further ordered the Employer to take the following affirmative action:

1. Resume trucking operations which had been discontinued in June 1961 (followed shortly by sale of all trucks and equipment);

2. Offer reinstatement to all discharged drivers to their former or substantially equivalent positions; and

3. Pay drivers back pay from date of discharge with interest at 6 percent per annum.

We think the record is clearly sufficient to support the findings of the violations. But based upon this record, we conclude that the particular order requiring the Employer to resume trucking operations is unwarranted. We therefore enforce in part and reverse in part for further hearing, reconsideration and findings by the Board.

The Employer is a manufacturer of oilfield pumping equipment. For many years prior to this proceeding, it had maintained an extensive transportation department for the delivery of its products to customers scattered throughout the United States and Canada, many at remote places, well sites and the like. Although this transportation was exempt as private carriage under the Interstate Commerce Act,⁴ physical operations, safety, drivers, etc. were subject to the regulations of the Interstate Commerce Commission. The Employer in 1958 was convicted of violating the Motor Carrier Safety Regulations established by the ICC and was fined $1,000 and placed on probation for one year. Apparently for a time thereafter it complied with such regulations. But this was short lived and soon the Employer reverted to its former, flagrant practices. Due to the continued violations, the ICC, on March 29, 1960, again started investigation of the Employer's transportation operation. Adding to its problems, the Employer was under critical investigation by the Department of Labor for Walsh-Healy transportation wage violations. Apprehending that the long, and heavy, arm of the law (federal) was about to fall, the Employer on April 1, 1960, posted a notice to the drivers that all further trucking operations must comply with ICC regulations. Apparently fearing that compliance with driver hours, time off, etc., provisions of the ICC Rules might affect their earnings, some of the Employer's truck drivers then began discussions with Local 47 of the Teamster's Union. By April 10 a majority of the drivers had signed cards authorizing the Union to act as their bargaining agent. Shortly thereafter and on April 11, the Union notified the Employer of its majority status and requested recognition as the bargaining agent for the drivers. The Employer made no response. Subsequent to the Union's request for recognition, on April 18 Ben Barnett, who had been acting as foreman of the transportation department for a long time, was demoted by the Employer to his old job as driver. He was replaced by Lum Phifer who for many years had been the transportation foreman, but in 1959 had been assigned to presumably critical duties as a scrap steel buyer in the face of an imminent steel strike. Here began Phifer's feverish anti-union propagandizing about which more is later said. Still giving no recognition to the Union, the Employer, on May 17, called a meeting of all the drivers for direct dealing with them. Significant, unilateral alterations of wages, working and trucking conditions were announced,⁵ all apparently to get in compliance with the ICC.

This brings us to the decisive action of June 18 again taken without consultation or discussion with the Union. On that date the Employer posted a notice to the drivers that the transportation department was being abolished, and that all of its motor truck transportation would be performed by C. & H. Transport Co., a certificated non-scheduled carrier. Of three of the drivers, apparently selected on a seniority basis, two accepted tendered employment. All other drivers were laid off. Thereafter in September the Employer sold all its trucks and related equipment. It was now out of the transportation business. Or so it thought.

Examining this order, we start with the proposition that the Board had ample basis for finding the § 8(a) (1) violation. The Board had to go no further than Phifer.

Starting with Phifer, the first question is why Phifer got into the act at all. Plant Superintendent Emmons, explaining to Barnett why he was being replaced by Phifer, made the reason plain:

"I said, `Well, Frank is there anything I have did? What have I did wrong?\' He said, `Ben, Barnett did you know the Union had signed up all the drivers?\' and I said, `No, sir, I sure didn\'t.\' And he said, `Well, they have, They are signed up, lock stock and barrel, * * *\' And he said, `Lum Phifer is coming back up there taking over * * * Evidently the old man thinks he can break the union hold,\' or something to that effect."

This was more than enough to reject the Employer's claim that he was put there to straighten out the ICC problem.

And once they put Phifer in command of the transportation department, he, as a supervisor, was management's voice,⁶ until repudiated, whether what he was saying was with its approval or whether it had instructed him to do (or say) so. "If an employee, * * *, is clothed with the apparent authority to speak for the employer, it is not necessary to prove that the employer had actual knowledge of the acts committed by the employee; * * *." NLRB v. Birmingham Publishing Company, 5 Cir., 1959, 262 F.2d 2, 8. Undoubtedly sincere, he broke every rule in the book — the now big book on 8(a) (1) coercive statements which do not come under the important protection of free speech. 29 U.S.C.A. § 158(c). Driver after driver testified that Phifer, questioning them about the Union and urging them to withdraw from it, stated positively that if they did so he might be able to get them a pay raise. Worse, he frequently voiced the threat that Gourley, Employer's President, would sell the trucks rather than have the Union.⁷ And as though these efforts were not enough, he openly suggested a counter petition to the then pending petition for certification of the Union.⁸ Of course all know by now that § 8(a) (1) "* * * makes it unlawful for an employer to instigate and promote a decertification proceeding or induce employees to sign any other form of union-repudiating document, particularly where the solicitation is strengthened by express or implied threats of reprisal or promises of economic benefit." NLRB v. Birmingham Publishing Co., 5 Cir., 1959, 262 F.2d 2, 7, and cases there cited.

Of course this finding of flagrant § 8(a) (1) violation cuts through this whole case. And its first impact is on the contention that the reason there was no bargaining, no recognition, no unfair labor practice, is simply that there was no duty because, in turn, there was a good faith doubt on the Union's status.

Despite the confusion as to the scope of the proposed unit, the evidence is quite sufficient to show a known, demonstrated majority of over-the-road drivers had signed union authorization cards. This unit corresponded to the Employer's actual groupings, and it is the unit now named in the order. We find nothing in the record which required the Board to hold that the Employer harbored a good faith doubt of the Union's status. Quite apart from the Union's letter declaring its majority support and requesting recognition, the Plant Superintendent let the cat out of the bag when, in referring to the drivers, he stated to Barnett "they are signed up lock stock and barrel." The Employer gains nothing on this record from the Board's dismissing the representation proceeding. An election is not required merely because it was sought. See United Mine Workers of America v. Arkansas Oak Flooring Co., 1956, 351 U.S. 62, 71-72 (and cases cited at 72, n. 8), 76 S.Ct. 559, 100 L.Ed. 941; NLRB v. Southeastern Rubber Mfg. Co., 5 Cir., 1954, 213 F.2d 11, 15. Moreover, an election would have been a futility after June 18 when the drivers were discharged — and, so the Board found, discharged because of the very effort to obtain union recognition.

With the duty to bargain commencing not later than mid-April, little need be said about the § 8(a) (5) violations as to other than contracting out the transportation.

Whether motivated by anti-union purpose or as a reflex to the hot breath of the ICC, the simple fact is that the changes in wages, working and trucking conditions of May 17 (see note 5, supra), made unilaterally and without so much as a gesture toward a union concern in these decisions, constituted a classic, albeit sometimes technical, refusal to bargain. NLRB v. Katz, 1962, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; NLRB v. Tex-Tan, Inc., 5 Cir., 1963, 318 F.2d 472, 482. This brings us to the § 8(a) (3) finding as a prelude to the § 8(a) (5) contracting out. The...