NLRB v. Arkansas-Louisiana Gas Company

• Decision Date: 30 June 1964
• Docket Number: No. 17535.,17535.
• Citation: 333 F.2d 790
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKANSAS-LOUISIANA GAS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

333 F.2d 790 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKANSAS-LOUISIANA GAS COMPANY, Respondent.

No. 17535.

United States Court of Appeals Eighth Circuit.

June 30, 1964.

Anthony J. Obadal, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate General Counsel, N. L. R. B., Washington, D. C., Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., and Allison W. Brown, Jr., Attorney, N. L. R. B., Washington, D. C., for petitioner.

Tom Gentry, of Gentry & Dabbs, Little Rock, Ark., Ray Thornton, Jr., Little Rock, Ark., for respondent.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

The National Labor Relations Board has petitioned this court pursuant to § 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq., for enforcement of its order of June 13, 1963, against Arkansas-Louisiana Gas Company, respondent. The Board's decision and order are reported at 142 N.L.R.B. No. 117. The Board, adopting its Trial Examiner's findings and recommended order, found that respondent had violated §§ 8(a) (3) and (1) of the Act by discharging eleven employees for engaging in union activities. It also found that respondent had violated § 8(a) (1) of the Act by interrogating and threatening its employees with respect to union activity. The Board's order, of which enforcement is requested, requires respondent to cease and desist from the unfair practices found and from in any other manner interfering with the rights of its employees under the Act. Affirmatively, the order requires reinstatement of the employees named in the complaint, the restoration of seniority and all other rights and privileges to those already re-employed, the reimbursement of back pay plus interest at the rate of 6% per annum, and the posting of appropriate notices.

Respondent objects to the petition for an enforcement order on the grounds that there is no substantial evidence in the record justifying it and further asks that it be denied because of claimed prejudicial errors committed by the Trial Examiner and approved by the Board whereby respondent was denied due process of law.

The record indicates that respondent is a Delaware corporation conducting an interstate utility business in Louisiana, Arkansas, Texas, Oklahoma, Kansas and other locations where it is engaged in the sale and distribution of natural gas. It also owns and operates non-utility enterprises through wholly owned subsidiaries. During the year preceding the issuance of the complaint herein respondent received gross revenue of more than $100,000,000. No jurisdictional issues are present.

As part of its business operations respondent maintains a trucking terminal on 15th Street in Little Rock, Arkansas. In May 1962 there were 17 truck drivers employed at such terminal. As early as March of 1962 the drivers at the 15th Street terminal learned of management's plan to change the method by which wages were computed. After several attempts to meet and persuade management not to effect this change, the employees sought to form a union. Between April 20th and May 8th ten of the 17 drivers signed application cards with Local 878 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Between May 11 and May 14, 1962, respondent discharged all but four of its truck drivers working at the 15th Street terminal, doing so suddenly and without warning. None of the four retained drivers had signed a union card. Circumstances surrounding the various discharges are fairly summarized from the record as follows:

On May 11th, Jenkins, the dispatcher who ran the trucking terminal and who was held by the Board to be a company supervisor, came into the yard at the trucking terminal and stopped Creed, who was about to take a truck to St. Louis, Jenkins said, "They have just fired the whole bunch. * * * They have just fired every truck driver down here." Jenkins and Creed spoke to Garage Foreman Lafferty, who told them that he had received instructions by telephone from Lindsey Hatchett, respondent's vice president, to lay off each driver as he arrived at the terminal. Upon Jenkins' protest that he had several runs scheduled at that time, Lafferty stated that Hatchett had told him to keep drivers Ford, Younts, Ware and Roberts. None of these four had signed union cards. Lafferty explained that he was instructed by Hatchett that this was an "economic layoff, and we were just going to have to tighten our belts." Jenkins told Creed and another driver, Lowery, that he had so many trips scheduled he did not know what he was going to do for men to drive the trucks.

Later that afternoon in Jenkins' office driver McEuen, who was among those discharged, remarked to Creed, who was the leader in union activity, that, "* * it looks like I cut my own throat. I did not want to sign one of these cards because I thought I was going to the office, * * * and I would not be allowed to vote when the Union voted. * * * Now, I have messed around and I have no protection at all. I did not sign a card and you boys did, and you have protection, and I haven't." Jenkins broke in and asked, "You did not sign a card?" McEuen turned to Creed for confirmation of this fact, and Creed agreed that McEuen had not signed a card. The next day McEuen was rehired by respondent.

That evening Jenkins informed driver Ballard that the latter was among those discharged. Jenkins asked Ballard whether he had joined the union. Ballard replied that he was not a member and Jenkins said, "Well, Creed and some of the guys seem to think that is the reason for the lay off, and if it was, I think I can get you back on." Ballard was rehired by the respondent on September 3, 1962, but with loss of vacation pay and with no seniority.

On May 14th Ballard and three other drivers went to Jenkins' office. Jenkins told then that a new driver, Jones, had been hired that morning and that the company was transferring in extra drivers from its home office at Shreveport.

With reference to interference, restraint and coercion, it is established in the record that W. R. Stephens is president of the respondent corporation, and that Albert Stephens, a stockholder and brother of respondent's president, had been instrumental in the original hiring of a number of respondent's drivers. Drivers Harper and Lowery had obtained employment applications from Albert Stephens and after filling them out returned them to him. During the course of an interview with Lowery, Albert Stephens questioned Lowery about his feelings toward the union. Lowery replied that unions were all right in their place, that he had worked on jobs that were union and ones that were not. At the end of the interview, Stephens told him that respondent would hire him. Three weeks later respondent notified Lowery to report to work. Albert Stephens also offered to hire driver Kauffman for a job with respondent. Kauffman filled out and returned the application blank given to him by Albert Stephens and thereafter was interviewed at the latter's home. Stephens told him that he had put his "o. k." on the application and that Kauffman would hear from respondent in a few days. Albert Stephens said "When I put my O. K. on things, they generally stay fixed." He also asked Kauffman, "You know what to do about the union?" Kauffman said, "Yes, I do." About three weeks thereafter Kauffman began working for the company.

Driver Newsom filled out an application for employment which he took to Albert Stephens, who put his "o. k." on it. Subsequently, at Albert Stephens' request, Newsom interviewed him at the Stephens home. Albert Stephens told him that he had his application and asked if he wanted to go to work for the gas company. Albert Stephens then said, "You know how the Gas Company operates. It is against the Union." Stephens asked him if he was for the union and was told that Newsom wasn't. Later Albert Stephens called him and told him to report to the 15th Street office.

Driver Harrington, who was a second cousin of the Stephens brothers, filed his application directly with respondent. About two months later Albert Stephens called him out to his home and told him, "* * * that he had a job for me if Jack York did not take the job." Albert Stephens also asked how Harrington felt about the union and Harrington replied that he did not like the union. The next day Albert Stephens told him to report to Vice President Hatchett. Harrington did so and began working the following day. Without more, this is an indication of the activities of Albert Stephens insofar as employment of the truck drivers and inquiries as to their union sympathies is concerned.

A few days after the May 11th discharges, Albert Stephens went to driver Kauffman's home, where he questioned him concerning the dismissals and the union activity of the drivers. Later four of the discharged drivers went to Albert Stephens' home at his request. Albert Stephens told them he wanted "straight" answers to his questions and demanded that they tell him "who started this Union activity". Albert Stephens said he was not a representative of the company but that if they gave him the information he wanted, he would guarantee their jobs back. Creed questioned Stephens about the validity of any guarantee he could give if he did not represent the company and Stephens replied, "How did you get your jobs to start with?" He then told the men to talk it over among themselves and then come back and give him some "straight answers".

It is the Board's contention that (1) substantial evidence, considering the record as a whole, supports its finding that respondent violated §§ 8(a) (3) and 8(a) (1) of the Act by discriminatorily discharging employees to discourage membership and activity in the union; (2) substantial evidence supports its findings...