NLRB v. Longhorn Transfer Service, Inc.

• Decision Date: 15 June 1965
• Docket Number: No. 21347.,21347.
• Citation: 346 F.2d 1003
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LONGHORN TRANSFER SERVICE, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

346 F.2d 1003 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LONGHORN TRANSFER SERVICE, INC., Respondent.

No. 21347.

United States Court of Appeals Fifth Circuit.

June 15, 1965.

Warren M. Davidson, Atty., N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Arnold Ordman, Gen. Counsel, Leo N. McGuire, Atty., N. L. R. B., Washington, D. C., for petitioner.

James J. Loeffler, Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel, for respondent.

Before HUTCHESON, BROWN and GEWIN, Circuit Judges.

HUTCHESON, Circuit Judge.

This is a proceeding to enforce an order of the National Labor Relations Board pursuant to Sec. 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e). The Board found that respondent violated Section 8(a) (1) of the Act by coercively interrogating its employees concerning their union activities, by refusing to give a promised wage increase because the employees had joined the union, by threatening reprisals, including discharge against union adherents, and by enlisting the aid of employees to work against the union and for the company. The Board also found that respondent violated Section 8(a) (3) of the Act by discriminatorily discharging union leader McCardell at the height of the union campaign. It adopted the findings, conclusions and recommended order of the Trial Examiner. 144 NLRB No. 91. The Board's order requires respondent to cease and desist from the unfair labor practices found, to reinstate McCardell with back pay, and to post an appropriate notice.

Employee McCardell apparently spearheaded the drive to bring the union¹ into respondent's business. He contacted its business agent initially and got thirteen other employees to sign union authorization cards, after which they named him their chief spokesman. Following the initial union meeting a telegram was sent to company president Hahn, asserting the union's representation of a majority of the company's twenty-five employees and listing the names of the fourteen men who had signed union authorization cards. McCardell's name headed the list. Hahn received the telegram the night of October 11, 1962. The charged activities began the next day. According to credited testimony Hahn called employee Patrick to his office, told him that he had seen his name on the telegram and that he could help Patrick but that the union could not. Two days later, in the company warehouse Hahn asked employee Leslie about the union and who its instigator was. He asked employee Davidson what he was griping about and insisted that he state his complaints to Hahn. A couple of days later he again spoke to Leslie and asked him to talk to the other employees about forgetting the union. A few days later he inquired as to whether Leslie had talked to them and upon being told that he had not, retorted that "One of these days you fellows might be sorry". On November 2, when Leslie, McCardell and one Denkins went to Hahn's office for their paychecks, Hahn said, "Well, you guys know that you got this union roused up", and threatened, in effect, that there would be some discharges, ending with the statement, "and you know who it's going to be".

After the representation election was held, Hahn announced the results to a group of his employees saying, "The Union won 14 to 11. But that don't mean that you'll tromp on me". Then, according to credited testimony, he asked employee Davidson about an incident with his truck and, after his reply, called him a liar. He then told the dispatcher to watch Davidson and to tell Hahn everything he did because Davidson would be be the first s.o.b. he'd fire.

In November 1961, Hahn had promised the men two pay raises, one to become effective in February 1962, and the second in November, 1962. The employees received the first raise, but not the second. According to credited testimony Hahn told Leslie and employee Patrick that he couldn't give the second raise "on account of the Union — if it hadn't been for the Union, you'd get your other raise".

Union leader McCardell had been employed by respondent for three years at the time he was discharged. During this period he had been involved in several incidents including damage to his truck, loss of goods, and personal injuries to himself. He apparently had never been formally reprimanded in writing for any of these occurrences. On October 8, McCardell's parked truck rolled down an incline and struck a building doing $200 damage. On October 17, nine days after the accident and six days after the union's telegram listing McCardell as one of its adherents had been received, Hahn called McCardell to his office and reprimanded him for a number of past incidents, including the building damage, and warned him that if he had another accident he would be discharged. He placed a record of reprimand in McCardell's personnel file containing the notation, "Final warning, next incident will be discharged".

On November 9, McCardell violated a company rule by leaving his truck parked down the street from the company office instead of in its assigned parking place, and by leaving the keys and a tarp in it when he had completed work for the day. On learning of McCardell's action, Hahn said, "He thinks cause he got the Union going on he can do anything he wants to, but I've got news for him". On the next working day, McCardell was discharged.

Our duty is to determine whether there is substantial evidence on the record as a whole to support the Board's findings that respondent violated Section 8(a) (1) and Section 8(a) (3) of the Act. E. g., Schwob Mfg. Co. v. N. L. R. B., 297 F.2d 864 (5th Cir. 1962). The record is replete with the conflicting testimony, faulty memories, and general disagreement about what was said, common to such cases. We, however, are not the fact-finder whose function it is to accept or reject, credit or discredit, conflicting versions of factual events and the inferences to be drawn from them. N. L. R. B. v. McGahey, 233 F.2d 406 (5th Cir. 1956). That is the function of the Trial Examiner and the Board, and on the facts as they found them, we have no doubt that respondent's activities constituted a violation of...