NLRB v. Stafford Trucking, Inc.

• Decision Date: 19 April 1966
• Docket Number: No. 15276.,15276.
• Citation: 359 F.2d 829
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STAFFORD TRUCKING, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

359 F.2d 829 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STAFFORD TRUCKING, INC., Respondent.

No. 15276.

United States Court of Appeals Seventh Circuit.

April 19, 1966.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Laddon, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Walter Meyer, Attys., N. L. R. B., Washington, D. C., for petitioner.

Walter S. Davis, Hoebreckx, Davis & Vergeront, Milwaukee, Wis., O. S. Hoebreckx, Milwaukee, Wis., of counsel, for respondent.

Before DUFFY, KILEY and SWYGERT, Circuit Judges.

KILEY, Circuit Judge.

The Board's petition seeks enforcement of its order¹ finding respondent guilty of violations of Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § 158.² Respondent does not challenge the finding as to the 8(a) (1) violation.³ We deny enforcement of the order based on the 8(a) (3) violation with respect to employee Toivonen, and order enforcement as to employees Lowitz and Immel.

Respondent in 1963 was in the trucking business in Portage, Wisconsin, employing "about" twelve truck drivers, including Toivonen, Lowitz and Immel. Late in June of that year, at Immel's request, Union⁴ activity was begun to organize the employees. After a meeting on June 22, 1963, of the employees and Union representatives, the Union filed a representation petition. A Direction of Election was issued on August 19, making all employees on the payroll for the period prior to August 19 eligible to vote. The mail ballot was counted on September 26, and the Union was selected as bargaining agent. The alleged § 8(a) (3) discriminatory conduct involves the discharges of Immel and Lowitz, and the failure to reinstate Toivonen — all in the period between the Union meeting and the direction of an election.

The question for us is whether there is substantial evidence on the record as a whole to support the findings that Lowitz, Immel and Toivonen were unlawfully discharged and that the reasons assigned by respondent for the discharges were "pretexts" to shield the motive based on their Union activities. NLRB v. Economy Food Center, Inc., 333 F.2d 468, 471 (7th Cir. 1964). While the issue of the 8(a) (1) violation is not before us, the anti-Union attitude implicit in that violation may be considered as a background against which the events occurred.

The three employees involved here attended the June 22, 1963, Union meeting. Clifford and Wilcy Stafford, sons of respondent's president, Jack Stafford, attended also, but were asked to leave and did so.

The Trial Examiner credited Lowitz' testimony that the night before the meeting President Stafford had interrogated him, accused him of being one of the Union instigators, and criticized him for his Union activities; threatened loss of working time for the employees and personal surveillance of their driving and lunching conduct; and threatened to have Lowitz fired because he was an insurance risk. To some extent Stafford corroborated Lowitz' testimony. Stafford testified he discharged Lowitz "because of the insurance."

It is true that Lowitz had a poor driving record and his license was suspended for sixty days in the autumn of 1962. But he resumed work as a truck driver in December of 1962 and continued driving until his discharge. It is true also that in March, 1963, Stafford's "third" successive insurer wrote Stafford's agent, asking to be relieved of liability under the policy, citing three large losses on accidents,⁵ and observing that Lowitz and employee Wakeman had fallen asleep at the wheel and "it appears that this is an occupational hazard in this risk because of the unusual hours they keep." Respondent's insurance agent in late June or early July requested insurance reports on five drivers, and these reports, dated July 9, 1963, indicated that the driving records of both Lowitz and Wakeman were "generally unacceptable." Lowitz was told the insurance risk was the reason for his discharge. But the reports were not dated until two days after the discharge on July 7, and Wakeman continued working after Lowitz' discharge. In addition, when Lowitz' license had been suspended in late 1962, he was retained on the payroll by respondent. His driving record, since recovering his license and again driving for respondent, was "without blemish." The Examiner concluded and the Board agreed that respondent discriminatorily discharged Lowitz in violation of § 8(a) (3) and (1) of the Act.

Immel began working for respondent in February, 1963. His testimony was substantially as follows: He started the Union activity and passed out cards to the employees. Stafford late in the night before the June 22 Union meeting asked Immel if he was going to the meeting and impliedly threatened him with reduction of working hours and said "I don't know what you are going to do but I know what I'm going to do." On Tuesday, August 13, Immel was sick and had his wife call respondent's office, and he heard her say that he was "sick and * * * felt weak and had a headache and * * * felt faint like," and wanted the afternoon off to see his doctor.⁶ That afternoon, their Doctor Cooney told him he was "coming down with the flu" and to take the rest of the week off and "get rested up." On Sunday, August 18, upon reporting to respondent that he wanted the next day off to go to his grandmother's funeral, Immel was told by Clifford Stafford that he could not return to work without a doctor's release so that respondent could find out why he "was fainting all the time." The following Tuesday Dr. Cooney gave him the release authorizing his return to work.

The testimony continues: Clifford Stafford rejected the release and told Immel that President Stafford wanted him to be examined by Dr. Henney, Stafford's own doctor, at the same clinic as Dr. Cooney. This doctor asked him about his "fainting spells." Immel denied having had any. The doctor asked him if "we were having any union problems at the company." Dr. Henney certified that Immel was ready for work. President Stafford refused to reemploy him, stating he wanted Immel to go to Madison to determine whether he had a brain tumor, "then you can come back to work."⁷

Immel did not go to the Madison hospital and accordingly could not return to work. He could not afford the cost of this examination, and was not assured that anyone else would pay for it.⁸

It is true that on one previous occasion he had run his car into a ditch and the night before that event had "passed out" in the Stafford garage. He denied that he had fainted, but stated he had gotten sick both times from driving a truck with a bad piston which resulted in diesel smoke and fumes in the truck cab. This was possible, according to testimony of Dr. Henney. The Examiner credited Immel on this factual question whether Immel had "fainted" or had "fainting spells" or, as Jack Stafford told Dr. Henney, "blackout spells" which worried Stafford about his driving. The Examiner, noting also respondent's "strong feeling against the Union," concluded, and the Board agreed, that respondent discriminated against Immel in violation of § 8(a) (3).⁹

Toivonen went to work for respondent on May 6, 1963, signed a Union card and attended with the other drivers the June 22 meeting. He and two other Stafford drivers, all lowest in seniority and residing in Hurley, Wisconsin (about 235 miles from Portage), were laid off for lack of work on June 29, 1963. The other two were called back two weeks later, after a week's notice. It is conceded that the layoff was justified and there is no claim that Toivonen was their senior, entitled to recall before them. Respondent did not communicate with Toivonen until Sunday afternoon, ...