NLRB v. Gass, 6793.

• Decision Date: 05 May 1967
• Docket Number: No. 6793.,6793.
• Citation: 377 F.2d 438
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Samuel B. GASS et al., Respondents.
• Court: U.S. Court of Appeals — First Circuit

377 F.2d 438 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Samuel B. GASS et al., Respondents.

No. 6793.

United States Court of Appeals First Circuit.

Heard March 7, 1967.

Decided May 5, 1967.

Allison W. Brown, Jr., Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., Washington, D. C., were on brief, for petitioner.

Irving Isaacson, Lewiston, Me., for Samuel B. Gass, respondent.

Courts Oulahan, Washington, D. C., with whom Charles S. Rhyne, Alfred J. Tighe, Jr., Washington, D. C., Benjamin P. Lamberton, III, and Rhyne & Rhyne, Washington, D. C., were on brief, for Lipman Bros., Inc., et al., respondents.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board issued against the respondents, Gass and Lipman, based on Board findings that these respondents engaged in certain unfair labor practices. The case arises out of the alleged unlawful discharge of a long time Gass employee. From this charge other issues developed upon which the Board made additional unfair labor practice findings, all of which are hereinafter discussed.

The pertinent background facts are as follows. The Lipmans are in the poultry business with principal places of business in Augusta and Winslow, Maine. They raise, process and sell poultry on a large scale through the medium of seven corporations. These corporations are controlled by three brothers, Bernard, Frank and Harold Lipman. Respondent Samuel B. Gass, a Maine corporation (hereinafter Gass) is a trucker with a principal place of business in Augusta. It is a family corporation in which one Sam Gass is president and his wife is treasurer. Mrs. Gass is a sister of the Lipman brothers. Actually Gass has only one customer — Lipman — and most of the time is engaged in hauling poultry feed from Lipman's feed mill in Augusta to some 150 to 200 poultry farms within a general fifty mile radius where Lipman raises its chickens.¹ Gass operates nine specially equipped delivery trucks and employs seven drivers, a mechanic and a mechanic-driver. From this business it grosses in excess of $100,000 a year.

Miville, the discharged employee in question, was one of these seven drivers. In August 1964 he and another driver succeeded in getting all nine Gass employees to sign union authorization cards. On the day that the last of the drivers signed up, (August 19), one Morgan, the superintendent of the Lipman feed mill in Augusta, heard about this union activity. He contacted Sam Gass and immediately tried to discourage it.² The next day (August 20) the following occurrences took place. Early that morning Harold Lipman discharged Miville, ostensibly for other than union reasons.³ When Miville remarked that he was really being fired on account of his union activities, Harold replied "You didn't have to sign the papers," meaning the union papers. Then Harold asked Miville how many Gass drivers had signed up with the union and when Miville told him they had signed up "one hundred per cent," Harold Lipman angrily remarked "I'm taking the trucking outfit over." After rebuking Miville he ordered him off the Lipman property. Also on that day Gass received written notice from the union⁴ stating that it represented a majority of the employees and demanding collective bargaining rights. Shortly afterwards Sam Gass showed this notice to one of the Lipmans. On this same morning Miville brought one Hastings, the president and business agent of the union, to the truck terminal to see Sam Gass about Miville's job. Sam was not available at the time but they were confronted by Mrs. Gass who, when she learned who Hastings was, subjected him to a strong outburst of antiunion animus and ordered him off the premises. An hour or so later Miville telephoned Sam Gass to try to arrange a conference between him and Hastings. At that time Mrs. Gass broke in on the telephone conversation and again expressed strong antiunion feelings.⁵ At the end of this conversation when Miville asked Sam Gass whether he (Miville) was "all through" Sam replied "Lipman don't want you on the farm. I have no more work for you." That afternoon Sam Gass informed his truck drivers he was losing his business and that their employment would end as of the following day.⁶

The next morning, Friday, August 21, one of the Gass employees told Morgan he had heard that Sam was losing his business and asked what would happen if the drivers withdrew from the union. Shortly thereafter word came back through Morgan that if the drivers got together with Sam Gass before 5 o'clock that day and "get this straightened out" the Lipmans "would give him back his business." Thereupon a hurried conference was called at which the truck drivers, Mr. and Mrs. Gass and Morgan, were present.⁷ As a result of this meeting the drivers agreed to withdraw from the union and Gass continued operating the business.⁸ That afternoon two drivers approached Sam Gass about Miville getting his job back now that they had withdrawn from the union. Sam stated he would do all in his power to have Miville reinstated but added that he didn't know if the Lipmans wanted Miville back.

The following Monday, August 24, Sam Gass offered Miville his job back "under the old conditions" but Miville replied that he would come back to work only if he "could talk freely with the boys about a union." Sam said "under those circumstances I have no work for you" and hired a new driver who was there seeking employment at the time.

Some two weeks later Miville received a letter from Gass' attorney stating he was authorized to offer him "immediate and unconditional reinstatement" to his job notwithstanding he had twice refused reemployment. Upon receipt of this letter on Friday, September 10, Miville went to the terminal and in the absence of Sam told Mrs. Gass he was reporting for work in accordance with the letter. She informed him that a truck would not be available until the following Monday, whereupon Miville left. In a matter of minutes Mrs. Gass appeared at the office doorway to the garage where Miville had stopped to visit and told him she wouldn't have him or anyone else swearing or insulting her — and threatened to fire him then and there. Miville denied that he swore at or insulted Mrs. Gass. At any rate, the next day he received a telegram from Sam Gass discharging him for "insubordination and profanity to Mrs. Gass" on the previous day. At no time thereafter was Miville offered reinstatement in his job.

On the basis of the above evidence the Board found that the Lipmans were engaged in a single integrated enterprise; that Lipman and Gass were joint employers of Miville and as such discriminatorily discharged and refused to reinstate him in violation of section 8(a) (3) and (1) of the Act; that through respondents' coercive interrogation and threats of going out of business the Gass drivers were coerced into abandoning their union membership in violation of said section 8(a) (1); and finally the Board found that the respondents refused to bargain with the union in violation of section 8(a) (5) and (1) of the Act. It also rejected the respondents' contention that the Gass drivers are agricultural laborers and hence exempt from the Act.

Broadly, the respondents resist enforcement of the Board's order because they contend that none of these findings are supported by substantial evidence. In particular, the respondents vehemently press their contentions that they did not employ and were not joint employers of Miville; that Lipman is not a single integrated enterprise and that the Gass drivers are agricultural laborers and by reason thereof are exempt under section 2(3) of the Act.

It is now so well settled as not to require citation of authority that this court's function on a petition to enforce an N.L.R.B. order is merely to determine whether on the record as a whole there is sufficient evidence to support the Board's findings. We think there is substantial evidence to support the Board's findings. To begin with, we call attention to the fact that on a previous petition to enforce an order of the Board against the Lipmans, decided by this court some fifteen months ago, the Lipman corporations admitted and this court found that this same poultry operation was a single integrated enterprise. N. L. R. B. v. Lipman Brothers, Inc., 355 F.2d 15, 21 (1st Cir. 1966). There is no evidence before us of any change in the corporate set-up or modus operandi of this business in the relatively short period since this admission was made. Although this finding does not bind the respondent Gass, it not being a party to the earlier case, we see no reason why we cannot take judicial notice of this admission and of our findings based on it, as far as the respondent Lipman is concerned; and we do so notice this earlier finding. Quite apart from this admission in the earlier case, there is substantial evidence in the record before us that Lipman is a single integrated business enterprise. As above stated, the three Lipman brothers are still the only officers and directors of all seven corporations in question. Together these three brothers own the controlling interest in each of them. From an examination of the part these corporations play in the overall operation of this business, and from the division of responsibilities between the three Lipman brothers — apportioned without regard to corporate lines, it is clear that this is but one large integrated poultry business — not several businesses.⁹

Also, we think there is substantial evidence in the record to support the Board's finding that Lipman and Gass were joint employers of the Gass drivers and as such discriminatorily discharged and refused to reinstate Miville. It is evident that although Gass paid the drivers,...