NLRB v. Greyhound Corp.(So. Greyhound Lines Div.), 23110.

• Decision Date: 17 November 1966
• Docket Number: No. 23110.,23110.
• Citation: 368 F.2d 778
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GREYHOUND CORPORATION (SOUTHERN GREYHOUND LINES DIVISION) and Floors, Inc. of Florida, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 778 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The GREYHOUND CORPORATION (SOUTHERN GREYHOUND LINES DIVISION) and Floors, Inc. of Florida, Respondents.

No. 23110.

United States Court of Appeals Fifth Circuit.

November 17, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.

William B. Peer, I. J. Gromfine, Herman Sternstein, Washington, D. C., Zimring, Gromfine & Sternstein, Washington, D. C., of counsel, for Amalgamated Transit Union, AFL-CIO, intervenor.

Alexander E. Wilson, III, Atlanta, Ga., Wilson, Branch, Barwick & Vandiver, Alexander E. Wilson, Jr., Atlanta, Ga., for respondent Floors, Inc. of Florida.

Warren E. Hall, Jr., Wofford H. Stidham, Bartow, Fla., for respondent Greyhound Corp.

Before RIVES, BELL and THORNBERRY, Circuit Judges.

RIVES, Circuit Judge:

This proceeding for enforcement of a National Labor Relations Board order presents the questions of whether substantial evidence on the record as a whole supports the Board's finding that Greyhound¹ and Floors² are joint employers of the porters, janitors and maids sought to be represented by the Union,³ and whether those employees constitute an appropriate unit for purposes of collective bargaining.

Those issues eventuate from litigation which has extended over more than a decade. Greyhound's own employees formerly performed the janitorial and loading services at each of Greyhound's terminals, and were represented by the Union. In 1954, Greyhound and Floors entered into an agreement by which Greyhound subcontracted to Floors the performance of janitorial and loading services at Greyhound's Jacksonville, Florida, terminal. When the Union contested the right of Greyhound to subcontract the janitorial and loading work, Greyhound brought an action against the Union for a declaratory judgment which finally resulted in a decision by this Court upholding Greyhound's right to subcontract this part of its operations. Amalgamated Association etc. v. The Greyhound Corporation, 5 Cir., 1956, 231 F.2d 585, 57 A.L.R.2d 1394. In 1951 and 1958 the same agreement, as amended and revised, was put into effect at Greyhound's terminals in St. Petersburg, Tampa and Miami.

In 1961 the Union filed an amended representation petition with the Board naming Greyhound and Floors as co-employers of the employees involved. In 1962 the Board issued a decision and direction of election finding Floors and Greyhound to be co-employers of the employees and directing an election in the unit petitioned for by the Union. Greyhound then filed suit in the federal district court seeking to enjoin the election ordered by the Board. The district court held that the Board had acted in excess of its statutory authority in finding Greyhound to be co-employer with Floors and permanently enjoined the holding of the election. The Greyhound Corporation v. Boire, Regional Director, S.D.Fla.1962, 205 F.Supp. 686. The district court held that the findings of the Board "establish as a matter of law that Floors, Inc. is an independent contractor and, for the purposes of collective bargaining, its employees are not the employees of the plaintiff Greyhound." (205 F.Supp. at 689). On appeal, in a per curiam opinion, this Court expressed itself as in agreement with the principles stated and the decision reached by the district court and affirmed. Boire, Regional Director v. The Greyhound Corporation, 5 Cir. 1962, 309 F.2d 397. The Supreme Court granted certiorari and subsequently ruled that the district court did not have jurisdiction to issue the injunction. Boire v. The Greyhound Corporation, 1964, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed. 2d 849. In the course of its opinion, the Supreme Court said:

"It is said that the Board\'s finding that Greyhound is an employer of employees who are hired, paid, transferred and promoted by an independent contractor is, * * *, plainly in excess of the statutory powers delegated to it by Congress. This argument, we think, misconceives both the import of the substantive federal law and the painstakingly delineated procedural boundaries of Kyne Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210.

"Whether Greyhound, as the Board held, possessed sufficient control over the work of the employees to qualify as a joint employer with Floors is a question which is unaffected by any possible determination as to Floors\' status as an independent contractor, since Greyhound has never suggested that the employees themselves occupy an independent contractor status. And whether Greyhound possessed sufficient indicia of control to be an `employer\' is essentially a factual issue, unlike the question in Kyne, which depended solely upon construction of the statute."

(376 U.S. at 481, 84 S.Ct. at 899.)

Subsequent to the Supreme Court's decision, an election was held by the Board and the Union was certified as bargaining representative. Floors and Greyhound then refused to bargain with the Union and the Board issued a complaint alleging a violation of Section 8 (a) (1) and (5)⁴ of the Act on the part of Floors and Greyhound. The parties⁵ entered into a stipulation waiving a hearing before a Trial Examiner and submitting the case directly to the Board for findings of fact, conclusions of law, and an order. The Board made full and elaborate findings of fact which it summarized as follows:

"Upon our consideration of the record in its entirety, we

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