NLRB v. Hudson Pulp & Paper Corporation
| Decision Date | 12 January 1960 |
| Docket Number | No. 17703.,17703. |
| Citation | 273 F.2d 660 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUDSON PULP & PAPER CORPORATION and Pioneer Transportation Service, Inc., Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Alfred Brummel, Atty., National Labor Relations Bd., Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Rothman, Gen. Counsel, National Labor Relations Bd., Frederick U. Reel, Fred J. Hahn, Attys., National Labor Relations Bd., Washington, D. C., for petitioner.
Theo. Hamilton, Jacksonville, Fla., for respondents.
Before HUTCHESON, CAMERON and JONES, Circuit Judges.
The National Labor Relations Board has petitioned for enforcement of its order against the respondents, Hudson Pulp & Paper Corporation, herein called Hudson, and Pioneer Transportation Service, Inc., herein referred to as Pioneer, directing the respondents to cease and to desist from specified anti-union activities, to rehire a discharged employee of Pioneer, and to post a compliance notice. Hudson is a manufacturer of paper and related products at a number of plants, one of which is at Palatka, Florida. Pioneer furnished trucks and drivers to Hudson at Palatka for transportation of its products. Pioneer was managed, primarily, by Irving Weinstein, who apparently was the principal owner of its stock. He hired the drivers and supervised their work. The drivers were on Hudson's payroll and received hospitalization insurance and an annual bonus from Pioneer. The Palatka mill was unionized except for the truck drivers. Weinstein had formerly operated in Pennsylvania and New York, and his drivers there were represented by a union. In September of 1956 some of the truck drivers attempted to get union representation. At their request, a union representative in Jacksonville first requested Pioneer and later Hudson to bargain with the union as representing the drivers. Hudson declined to bargain without certification. An election was held on December 6, 1956, and the union failed to get a majority.
During the period of the union effort to obtain recognition, Weinstein had attempted to learn the identity of the drivers who had signed union authorization cards, had made inquiries as to the union wage rate for drivers, and had stated that before he would let the union in he would sell the trucks and the drivers could starve as far as he was concerned. Before the election the Industrial Relations Director of Hudson talked with one of the drivers, a member of the union, and made inquiry as to who was for the union. He was given a non-committal answer and closed the interview by slapping the driver on the back and saying, "Well, I hope you boys luck." The Industrial Director talked with another driver and asked why the drivers wanted a union. The Board found interference, restraint and coercion of the drivers in violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1). So far as Pioneer is concerned, we think that there is a sufficiency, although not overmuch, of evidence to sustain the findings. As to Hudson, we would reach a contrary conclusion unless Pioneer, which was controlled and managed by Weinstein, acted for Hudson in the employer-employee relations with the drivers. Weinstein, subject to Hudson's veto power, did the hiring and the firing, directed the work of the drivers and, as the Board found, "In practical effect, Hudson thus designated Pioneer (acting through Weinstein) to act as its agent with respect to the operation of the leased equipment and the hiring, discharging and supervision of its driver employees." 121 N.L.R.B. 1446, 1450. Pioneer was acting for Hudson. The cease and desist portion of the Board's order will be enforced. See National Labor Relations Board v. McGahey, 5 Cir., 1956, 233 F.2d 406; National Labor Relations Board v. Newton Co., 5 Cir., 1956, 236 F.2d 438.
One of the drivers at Hudson's Palatka mill was Enon M. Harris. He had been employed, off and on, by Pioneer in Pennsylvania during the period between 1935 and 1947. In December of 1947 he moved to Florida at Weinstein's request and became a driver for Hudson and Pioneer. He was one of the drivers who had attempted to procure union recognition. He had been a participant in a similar attempt made about three years earlier. His difficulties with his employer to which our attention is directed seem to have commenced in October, 1956. Weinstein was on vacation. William Miles Baker, a Hudson employee, had the responsibility for the time being of authorizing repairs to the truck equipment. Harris was driving a truck from Chicago to Palatka. Mechanical trouble developed. He telephoned, as he was required to do, for authority to incur the repair expense. There was a delay in reaching Baker by telephone and getting authority to have the repairs made. Harris borrowed $40 from the garage making the repairs to cover his expense during his layover, and the garage added this to the repair bill sent to Pioneer. Weinstein charged the $40 back to Harris. Harris quoted Weinstein as saying, "Any time that a truck breaks down, you don't have it fixed, you run the thing until it falls apart and then get in the best way you can." Despite the vigorous denial of Weinstein that any such statement was made, and despite the implausibility of a statement that the owner of valuable equipment had directed an employee deliberately to damage it, the Board credited the testimony of Harris.
In December of 1956, Harris was driving a truck from Milwaukee to Palatka. In Tennessee, engine trouble developed. As Harris stated it, "The counterbalance had worked loose on the crank-shaft and was causing vibration, undue vibration." "And", testified Harris, "if it got too bad it could tear up the truck, tear up the motor." Harris admitted that he knew better than to drive the truck in its state of disrepair. He drove it on to Palatka, a trip of about eighteen hours. Harris gave two reasons for his failure to have the truck repaired, first, that he didn't have enough money with him to wait until repairs were made, and second, the orders he had received "to bring it in." On arriving at the Palatka mill about ten or eleven o'clock at night Harris parked the truck. Harris had been instructed that if a truck needed repairs he should leave a note affixed to the key stating that fact. Harris deliberately failed to do this although he was aware of the condition that, in his words, might "tear up the truck, tear up the motor." He sought to excuse this willful disobedience of orders by saying that on other occasions he had "left written notes on the key and the work wasn't done on them anyhow." The next morning Harris went to the mill to pick up his expense check. The truck which Harris had brought in the night before passed him on the road as he was on his way to the Hudson mill, and he assumed it was going to Chicago. He made no effort to detain it. After Harris had obtained his expense check he saw Weinstein and told him the truck needed repairs. Weinstein replied, This was not news to Harris. Harris was later informed that what he had predicted might happen, had happened; that the truck required the installation of a new motor before it returned from the trip which was beginning when it passed Harris on the road. There was evidence that on other occasions Harris had been responsible for damaging equipment. Weinstein discharged Harris on January 15, effective January 19, 1957, and the reason given for the discharge was "tearing up" equipment. On the complaint of Harris the Board found that he had been discharged because of his union activities and ordered that he be given back pay and offered reemployment.
The only evidence of any anti-union animus directed toward Harris by his employer to which our attention is called is to be found in the testimony of George W. Miles, a brother-in-law of Harris. Like Harris, he was a truck driver in the employ of Hudson and Pioneer. Miles, as a witness called by the Board's General Counsel, testified on direct examination about two conversations with Weinstein. He was asked about the first of the conversations, and so far as might have related to Harris the questions and answers were:
Later, following examination having no relation to Harris, counsel for the Board resumed:
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