NLRB v. ARMSTRONG TIRE & RUBBER CO., TEST FLEET BR.

• Decision Date: 30 January 1959
• Docket Number: No. 17168.,17168.
• Citation: 262 F.2d 812
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMSTRONG TIRE AND RUBBER COMPANY, TEST FLEET BRANCH, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

262 F.2d 812 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARMSTRONG TIRE AND RUBBER COMPANY, TEST FLEET BRANCH, Respondent.

No. 17168.

United States Court of Appeals Fifth Circuit.

January 30, 1959.

Elmer P. Davis, Chief Law Officer, Fort Worth, Tex., Marcel Mallet-Prevost, Asst. Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, National Labor Relations Board, Washington, D. C., for petitioner.

Richard C. Keenan, New Orleans, La., for respondent.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order issued against respondent November 8, 1957.¹ The violations of § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1), were found by the Board to have been committed during 1956.² There being no union representing respondent's employees, the charge was filed by an employee, Louie E. Wright, upon which the General Counsel issued the complaint here involved.

Respondent employed a large number of passenger car drivers, truck drivers, technicians, mechanics and clerical employees at its test fleet branch in San Antonio, Texas. The complaint before us relates only to employees whose duty was to test tires by driving automobiles and trucks over the public roads. These drivers worked around the clock Monday through Friday in three shifts. Each shift took a thirty minute nonpaid lunch period and, in addition, each of the drivers was accustomed to make several short stops along the road "for the purpose of checking tire pressure, tightening tire lugs, drinking coffee and relaxing." Truck drivers would also normally stop a short distance from respondent's garage and line themselves up in accordance with garage service requirements so that they would reach the garage in a certain order and on time. At that stop the drivers cleaned their trucks and made out reports, and frequently there was additional time, which they spent merely in waiting. The motor vehicles driven by these employees were normally overweight and, in general, the purpose of the tests was to wear out the tires, noting their performance under road conditions.

No restriction was placed upon the right of employees to solicit others to union membership prior to or after working hours, or during lunch periods. The complaint which the Board enforced challenged the respondent's non-solicitation rule³ as it was applied to the scheduled tire-check and rest stops and to the unscheduled last stop of uncertain duration made by the trucks as they approached the garage at the end of the runs. The General Counsel contends that, under our decision in Olin Industries, Inc., Winchester Repeating Arms Co. Division v. N. L. R. B., 5 Cir., 1951, 191 F.2d 613, the respondent illegally enforced the no solicitation rule during the portions of these stops when the employees had no work to perform and were merely resting, sometimes getting together and engaging in "bull sessions."

Respondent counters this claim with the contention that ample opportunity was given for solicitation during the employees' lunch period and time before and after work; that the roadside stops (other than the lunch period) were not within the holding of the Olin case since "they were consumed partially in rest and partially in work." It claims further that even the portion of these periods not devoted to work should be spent by the employees in rest and relaxation and not in discussion of controversial subjects, because of the hazardous nature of their employment and the necessity that they keep their minds calm and free from the excitement or agitation naturally produced by discussion of such subjects, and their nerves relaxed and their reactions alert. This contention was based upon what respondent claimed was its experience that, unless these rules were followed, accidents increased.

The Board found the employee Wright had been wrongfully warned against violating this rule, and that he was eventually discharged because of his union activity and not because, as claimed by respondent, he had made a false report to it concerning a minor accident he had with the car of another employee. The...