NLRB v. Cement Transport, Inc.

• Decision Date: 22 January 1974
• Docket Number: No. 73-1260.,73-1260.
• Citation: 490 F.2d 1024
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CEMENT TRANSPORT, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.2d 1024 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CEMENT TRANSPORT, INC., Respondent.

No. 73-1260.

United States Court of Appeals, Sixth Circuit.

Argued October 17, 1973.

Decided January 22, 1974.

Rehearing Denied March 4, 1974.

COPYRIGHT MATERIAL OMITTED

Lawrence Levien, N.L.R.B., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Assistant Gen. Counsel, Alan D. Cirker, Attys., N.L.R.B., Washington, D. C., on brief.

Louis E. Woolery, Louisville, Ky., for respondent; James U. Smith, Jr., Louisville, Ky., on brief.

Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

CELEBREZZE, J., delivered the opinion of the Court, in which MILLER, J., joined.

O'SULLIVAN, J., dissented in part.

CELEBREZZE, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its Order of December 11, 1972, reported at 200 NLRB No. 122. In its Order and accompanying Decision, the Board adopted the Administrative Law Judge's conclusion that Respondent violated section 8(a) (1) and 8(a) (3) of the National Labor Relations Act.¹ The Board ruled that the Company improperly interrogated its employees about their union sympathies before a representative election and illegally discharged Edgar Ray Thompson because of his organizational activities. It ordered Cement Transport to cease and desist from section 8(a) (1) and 8(a) (3) violations, to reinstate Thompson and make him whole, and to post appropriate notices.

Respondent contends that Thompson was an independent contractor, not an employee, that it committed no offense by questioning its drivers about their union leanings, and that Thompson was properly discharged for misconduct apart from his union activities. We turn first to the independent contractor issue.

Cement Transport, Inc., hauls cement for the Kosmos Portland Cement Company. While Cement Transport owns the trailers used in its business, it leases tractors from various individuals. Edgar Ray Thompson was one such lessor. A single owner-driver, Thompson had a standard lease with Respondent which provided that the tractor would be operated under the Company's direct supervision and control and "shall be devoted exclusively to the Company's business of transportation as much and as often as may be reasonably required by such business."

In Ace Doran Hauling and Rigging Co. v. N. L. R. B., 462 F.2d 190 (6th Cir. 1972), this Court held that in appropriate cases owner-drivers working for contract carriers could be considered employees rather than independent contractors, so that the Board had jurisdiction over single owner-drivers.² "The rationale behind our holding is based on both `additional controls' and the control and supervision exercised pursuant to ICC requirements." 462 F.2d at 194. Ace Doran was reaffirmed by this Court in N. L. R. B. v. Pony Trucking, Inc., 486 F.2d 1039 (6th Cir. 1973).

Cement Transport's operations are quite similar to those of Ace Doran, entailing both government-required supervision and additional controls. Cement Transport argues that Ace Doran can be distinguished because Doran paid for its drivers' cargo insurance (Respondent holds its drivers liable for stolen cargo), Doran got a percentage of revenues from its owner-drivers' backhauls (Respondent allows its owner-drivers to haul for others and keep the profit, but subjects them to recall at its behest), and Doran limited the routes its owner-drivers could take on deliveries (Respondent leaves the choice of roads to its drivers as a matter of practice but has the right to direct the routing.) Doran's discipline procedures may be more strict than Respondent's but they exist.³

While Respondent cites differences of fact, it has not shown differences of principle. Cement Transport has a sufficient right to control its single owner-drivers to sustain a finding that they are employees rather than independent contractors. It is the right to control, not its exercise, that determines an employee relationship, N. L. R. B. v. A. S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964); N. L. R. B. v. Steinberg, 182 F.2d 850, 857 (5th Cir. 1950).

Our review of the Board's decision is limited. If substantial evidence in the record supports the Board's conclusion, this Court is bound by such findings, even though the Board chose between "two fairly conflicting views" of the employee-independent-contractor distinction. N. L. R. B. v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). We find that the Board has done so in this case and affirm its conclusion on the basis of Ace Doran.⁴

Second, Respondent objects to the Board's finding that it violated Section 8(a) (1) of the Act by coercively interrogating its employees before a representative election. The record shows that shortly after the 1971 campaign to organize Respondent's drivers began, Respondent's general manager asked three employees on five separate occasions whether they had signed Union cards and whether Edgar Thompson was asking their help in his organizing efforts. He did not caution the employees that no retaliation would flow from their answers. The untruthful responses of two of the employees demonstrated their natural fears about such questioning. We agree that under the circumstances, the general manager's questioning constituted inherently coercive interference with the employees' right freely to choose a bargaining representative, under Section 8(a) (1) of the Act. See N. L. R. B. v. Gissell Packing Co., 395 U. S. 575, 85 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Capital Broadcasting Corp. v. N. L. R. B., 479 F.2d 329 (6th Cir. 1973). Substantial evidence in the record considered as a whole supports the Board's conclusion on this point. N. L. R. B. v. Armstrong Circuit, Inc., 462 F.2d 355, 357 (6th Cir. 1972).

Third, Respondent argues that the Board erred in holding that the Company fired Thompson because of his union activities.

Our inquiry is whether substantial evidence in the record as a whole supports the Board's conclusion that Respondent discharged Thompson because of his Union activities. See N. L. R. B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (6th Cir.), cert. denied, 389 U. S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1967); cf. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 29 U.S.C. § 160(e). The question of discriminatory motivation under Section 8(a) (3) is primarily factual, to be determined initially by the Board through its administrative apparatus. N. L. R. B. v. Murray Ohio Mfg. Co., 358 F.2d 948, 950 (6th Cir. 1966); N. L. R. B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (6th Cir. 1967). "The Board, not the courts, has the delicate task of divining an employer's motives from the confusion generated when spirited organizational activity clashes with comparable efforts to eliminate it." N. L. R. B. v. Lou de Young's Market Basket, Inc., 406 F.2d 17, 21 (6th Cir.), remanded on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969).

The burden of proving an employer's discriminatory motive in discharging an employee is on the General Counsel. N. L. R. B. v. Bangor Plastics, Inc., 392 F.2d 772, 777 (6th Cir. 1967); Lawson Milk Co. v. N. L. R. B., 317 F.2d 756, 760 (6th Cir. 1963). The Board found that the General Counsel had met that burden. The record is clear that Respondent was aware of Thompson's spearheading the organization of its drivers since 1967 and that it actively opposed such efforts. One campaign was aborted in 1969, when Thompson discovered that the Company had found out how many Union cards were being turned over to Teamsters Louisville Local 89. To avoid another leak, Thompson turned to Local 299 for aid in the 1971 campaign.

By July 15, 1971, Thompson had collected 38 signed authorization cards, representing substantially all the drivers eligible to vote. Between that time and the petition for an election in January, 1972, Thompson was advised by union officials to hold the cards. To maintain union interest, he continued to voice dissatisfaction with the Company's wage scale and to complain about company practices after July 15.

On October 25, 1971, the Company terminated Thompson's lease. The Administrative Law Judge found that Respondent's President Cummins, in a phone conversation the day after terminating Thompson's lease, told Thompson that his discharge was prompted by Thompson's "spreading that Union poison around." Cummins testified,

I\'ve known this man for a long time. He has been a good operator. There is no question about that. There is no fault to find there but he really never has worked for anybody else for any length of time. I just feel like as far as the companies that are in this area are concerned, we are probably as good a company to work for as any company in the country but I don\'t think he felt that way and so I suggested to him that he go somewhere else and work awhile. Maybe he would see that things aren\'t quite so bad at home as he thought they were and I knew people in the trucking industry around here and if he wanted me to say a word for him, I would tell anybody he was a good operator. Then, maybe some day if he felt differently about it, if he didn\'t feel that we were such a bunch of thieves and liars, we might talk again. Tr. 424.

Accepting the credibility assessments of the Administrative Law Judge⁵ and considering the evidence above and the rest of the record, we find substantial evidence to support the Board's conclusion that Thompson was discharged because of his union-related activities.

Ordinarily this would end our review. Respondent, however, has asserted what amounts to an affirmative defense.⁶ It charges that, in conducting his activities, Thompson made numerous false and derogatory statements about the Company itself, the general manager, and the Company...