NLRB v. Braswell Motor Freight Lines, Inc., No. 72-1444.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: FAIRCHILD and STEVENS, Circuit , and CAMPBELL, Senior
• Citation: 486 F.2d 743
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRASWELL MOTOR FREIGHT LINES, INC., Respondent.
• Docket Number: No. 72-1444.
• Decision Date: 04 October 1973

486 F.2d 743 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
BRASWELL MOTOR FREIGHT LINES, INC., Respondent.

No. 72-1444.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 1973.

Decided October 4, 1973.

Rehearing Denied November 15, 1973.

486 F.2d 744

Peter G. Nash, Gen. Counsel, William L. Corbett, Atty., NLRB, Washington, D. C., for petitioner.

Hugh M. Smith, Ronald R. Slaughter, Dallas, Tex., for respondent.

Before FAIRCHILD and STEVENS, Circuit Judges, and CAMPBELL,^* Senior District Judge.

WILLIAM J. CAMPBELL, Senior District Judge.

The Board has petitioned for enforcement of its order which found that the respondent violated Sections 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily laying off nine employees from its Atlanta, Georgia plant and by discriminatorily discharging an employee, Ike Singletary, from its plant in Jackson, Mississippi.¹ The issues before this court are whether there is substantial evidence in the record as a whole to support the Board's findings, and whether the respondent's conduct at its Atlanta and Jackson plants was properly before the Board.

The Company is engaged in the interstate motor truck transportation over a wide geographical area. It has trucking facilities in Chicago, Illinois, in Atlanta, Georgia, as well as in Jackson, Mississippi. It also has large operations in the state of Texas. Its President and General Manager, J. V. Braswell, owns 99% of the Company's outstanding shares of stock.

Since the 1950s, the Company has engaged in an ongoing battle with various locals of the International Brotherhood of Teamsters over the organization and operation of the Company's facilities.² It is fair to say that the Company's

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posture throughout this history has been one of resistance to organizational efforts by the Union and its various locals. The record in this case is no different. It contains evidence of direct statements of the company president and his management assistants which support the findings of the Board that the layoffs and discharge were discriminatorily motivated by reason of the employees' union activities. Typical of these statements is a remark of the company president to the director of its Chicago terminal concerning the problem in Chicago. J. V. Braswell stated "I will tell you one thing, if those sons-of-bitches up there go union I will shut that terminal down because if they are allowed to go union, every terminal in the system will get the idea that they can do the same thing." Although the incidents at the Chicago terminal are not being challenged by the respondent in this court, similar incidents occurred at the Atlanta and Jackson plants. For example, when Braswell learned that the Atlanta employees had signed union authorization cards he immediately instructed Cahill, the Chicago terminal director, to go to Atlanta, hire an independent cartage company to conduct the respondent's operations in Atlanta, and then to fire "every son-of-a-bitch in Atlanta." At a later point in time, when Cahill informed Braswell that the situation in Atlanta was "bad", Braswell responded "well, at least I got rid of a bunch of union bastards in Chicago." With respect to the Jackson facility, when Braswell learned that employee Ike Singletary had previously walked a union picket line at the Jackson plant, he instructed that Singletary was to be fired

The position of the respondent is that the layoffs in Atlanta, Georgia, were justified by the economic situation prevailing at the time. Concerning this purported justification, the testimony of the witnesses is conflicting. Where this is so, the determination of the witness' credibility lies peculiarly within the province of the trial examiner as the trier of fact. Saginaw Furniture Shops Inc. v. NLRB, 343 F.2d 515, 516-517 (7th Cir. 1965); NLRB v. National Food Stores Inc., 332 F.2d 249, 251 (7th Cir. 1964). Moreover, even if there be a valid business purpose for the layoff, a violation of the Act still occurs if the employer's motive is discriminatory. NLRB v. Bedford-Nugent Corp., 379 F. 2d 528, 529 (7th Cir. 1967); NLRB v. American Casting Service Inc., 365 F.2d 168, 174 (7th Cir. 1966). Considering this along with the evidence in the record as a whole, we conclude that there is substantial support in the record for the findings of the Board.

The more difficult question here concerns whether the Company's conduct at its Atlanta, Georgia and Jackson, Mississippi facilities was properly before the Board. The chronology of this case shows that on January 27, 1970, the Chicago teamsters local filed an unfair labor practice charge against the respondent alleging violations of Sections 8(a)(1), (3) and (5) of the Act at the Chicago terminal. The Regional Director issued a complaint and notice of hearing on September 11, 1970. Thereafter, on October 28, 1970, an amendment to the original complaint, which added additional Chicago employees, was filed. Finally, on November 12, 1970, a further amendment was filed, alleging that the company violated Sections 8(a)(3) and (1) of the Act by laying off and discharging certain employees at its Atlanta and Jackson terminals. Inasmuch as the Atlanta and Jackson incidents were not mentioned in the original charge filed with the Board and occurred more than six months prior to the filing of the amended complaint, the respondent maintains that Section 10(b) of the Act forecloses any consideration

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by the Board of the Atlanta and Jackson incidents.³

It has long been recognized that this section of the Act prevents the Board from filing a complaint on its own initiative. National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940); NLRB v. Kohler Company, 220 F.2d 3, 7 (7th Cir. 1955). Recognizing that a charge is not a complaint but is rather an administrative...