NLRB v. Ozark Motor Lines

• Decision Date: 20 November 1968
• Docket Number: No. 19159.,19159.
• Citation: 403 F.2d 356
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OZARK MOTOR LINES, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

403 F.2d 356 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OZARK MOTOR LINES, Respondent.

No. 19159.

United States Court of Appeals Eighth Circuit.

November 20, 1968.

Leonard M. Wagman, Atty., N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Mr. Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., and Franklin C. Milliken, Attys., N.L.R.B., on the brief.

Donald R. Wellford, of McCloy, Wellford & Clark, Memphis, Tenn., for respondent.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This case is before us upon petition of the National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, as amended (29 U.S. C.A. § 151 et seq.), for enforcement of its order issued against respondent Ozark Motor Lines (Ozark) on May 3, 1967, which is reported at 164 NLRB No. 41. Ozark by answer has denied it is guilty of any unfair labor practice charged and asks that enforcement be denied. The unfair labor practice arose within this circuit; jurisdiction is established.

The Board found that Ozark violated § 8(a) (1) of the Act by coercively interrogating employees about union activities, by threatening employees with discharge, and by offering employees economic and other benefits if they would abandon adherence to the union. The Board also found that Ozark had violated § 8(a) (1) and (5) of the Act by refusing to bargain with the union at a time when the union represented a majority of its employees in an appropriate unit.

The Board in this same proceeding dismissed charges that Ozark was guilty of unfair labor practices in discharging employees Camden and Maudlin and no review is here sought of such determination.

Ozark operates as a common carrier of property between its main base in Memphis, Tennessee, and West Plains, Missouri. At West Plains freight shipped from Memphis is broken down and delivered by West Plains employees to consignees in West Plains and small surrounding towns, or is delivered to other truck lines for interline shipment. Ozark is a relatively small operation originated and owned by M. M. Higginbotham. In April of 1966, Ozark had four employees in West Plains. Such employees were Camden, Maudlin, White and Evans. Higginbotham visited the West Plains operations about once a month.

Ozark contended that Camden was a supervisor. Such contention was disputed. Camden performed many of the same duties as were performed by the other employees. The Board determined Camden was a supervisor within the meaning of § 2(11) of the Act and hence was not a member of the appropriate bargaining unit. Such determination is not here controverted. Thus it satisfactorily appears that at the time here material the members of the bargaining unit were Maudlin, Evans and White.

The union here involved is General Drivers, Salesdrivers, Warehousemen and Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters. Kirk, an organizer for such union, met at Ozark's office on April 27, 1966, with all of Ozark's West Plains employees. There had been some discussion among the employees relative to joining a union and word of such interest in the union had reached its officers. The arrangements for the meeting were made principally by Maudlin. Camden, who in connection with earlier employment had been a member of the union, cooperated in making the arrangements and he attended the meeting. Kirk made his union pitch and laid four union authorization cards on the table and told those present to talk the matter over among themselves. Maudlin replied, "We don't need to wait. We can sign them now." Thereupon, Camden, Maudlin, Evans and White each signed an authorization card and delivered it to Kirk.

On April 28, 1966, Kirk wrote a letter on behalf of the union to Ozark advising that the union represented a majority of the West Plains employees. Recognition was requested. Higginbotham admits receiving such letter sometime prior to May 2, 1966. On that date he drove to West Plains and immediately after his arrival he was told by Maudlin that Camden, White, Evans and Maudlin had each signed authorization cards. On that night, the next day and on the morning of May 4 prior to returning to Memphis, Higginbotham made repeated attempts to persuade the employees to abandon the union but was consistently told that the employees were adhering to their union authorization cards.

On May 5, 1966, Ozark's counsel responded to the union's letter. Ozark rejected the representation claim upon the basis that "the company has a bona fide doubt as to the majority status of your union."

It is Ozark's position that enforcement of the Board's order should be denied for the following reasons:

(1) There is no substantial evidentiary support in the record as a whole for the Board's findings:

(a) That Ozark violated § 8(a) (1) by coercive interrogation, threats of reprisal and promises of benefits.

(b) That Ozark did not have a good faith doubt that the union was a freely chosen bargaining representative of a majority of the West Plains employees at the time of its recognition refusal on May 5, 1966.

(2) The Board's remedy is inappropriate.

Our examination of the record completely satifies us that the evidence in support of the Board's factual determinations on all material issues meets the substantial evidence standard set out in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Board in its reported opinion adequately demonstrates that the required standards have been met. There is a conflict between the testimony of the employer and the employees. The Examiner, who heard the witnesses, credited the testimony of the employees to the extent that their testimony conflicted with that of Mr. Higginbotham. Ozark has failed to demonstrate that error was committed in so crediting the testimony. See N. L. R. B. v. Superior Sales, Inc., 8 Cir., 366 F.2d 229, 232-233.

It is undisputed that Higginbotham was strongly opposed to the unionization of his employees. Immediately upon the receipt of the recognition request, he went to West Plains. There is evidence that he offered his employees better hours and equipment and offered White privately a $10 per week wage increase if the employees would disclaim the union, and that he made threats of discharge...