NLRB v. Stafford Trucking, Inc.

• Decision Date: 03 February 1967
• Docket Number: No. 15709.,15709.
• Citation: 371 F.2d 244
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STAFFORD TRUCKING, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

371 F.2d 244 (1966)

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

No. 15709.

United States Court of Appeals Seventh Circuit.

December 27, 1966.

Rehearing Denied February 3, 1967.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Theodore Martineau, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Gary Green, Atty., N. R. L. B., for petitioner.

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

Before HASTINGS, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.

Rehearing Denied February 3, 1967 en banc.

CUMMINGS, Circuit Judge.

This case is here on the National Labor Relations Board's petition under Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) to enforce an order against respondent. See 154 N.L. R.B. No. 99. Earlier this year, we considered a related case against this same respondent. That proceeding is reported in 7 Cir., 359 F.2d 829 and 150 N.L.R.B. 1036 and will be termed Stafford I herein.

Respondent Stafford Trucking, Inc. ("Stafford") is a Wisconsin corporation with its principal office in Elm Grove, Wisconsin, a suburb of Milwaukee. It is engaged in the business of local and interstate hauling by truck, with its dispatch office and garage located in Portage, Wisconsin. The Board concluded that Stafford's January 30, 1964, discharges of its employee-drivers Daniel Immel and Donald Becker were discriminatory discharges forbidden by Section 8(a) (3) of the Act (29 U.S.C. § 158(a) (3)). The Board also concluded that Stafford refused to bargain collectively with the Union¹ by unilaterally instituting a contributory insurance plan in contravention of Section 8(a) (5). These two violations led the Board to conclude that Stafford had engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act (29 U.S.C. § 158(a) (1)).

In June 1963, Immel led a unionization effort among Stafford's 12 truck drivers, resulting in a meeting between the employees and representatives of the Union on June 22, 1963. The night before the meeting, Jack Stafford, owner and president of respondent, asked Immel whether he planned to attend the meeting. He replied in the affirmative. Mr. Stafford then asked if Immel could live on only 40 hours a week. On the same night, Mr. Stafford threatened several of his employees with discharges for violating Company rules if they should join the Union.

After the June 22, 1963, meeting of the employees and Union representatives on August 19th, the Board's Regional Director issued a Direction of Election, making all employees on the payroll for the period prior to June 19th eligible to vote. The election was held on September 26th, but the outcome was in doubt because Stafford challenged the ballots of drivers Immel, Becker, Lowitz and Toivonen (see 150 N.L.R.B. at p. 1037, note 3). Immel had been discharged on August 19th, Becker on July 23rd, Lowitz on July 7th, and Toivonen had allegedly been refused re-employment on August 12th.

In October 1963, Immel and Becker gave testimony against respondent in Stafford I. In that proceeding, the Board found that Immel and Lowitz had been discriminatorily discharged and that Toivonen had been discriminatorily refused re-employment. However, the Board concluded that Stafford had discharged Becker for failing to remove a binder chain that had fallen from the conveyor on the rear of his truck into a sand bin belonging to a customer of Stafford, and that Becker's discharge was not for his Union activities. Becker was rehired on August 23, 1963. Immel was rehired in November 1963. In Stafford I, this Court held there was substantial evidence to support the Board's findings that Immel and Lowitz were unlawfully discharged, but that there was no substantial evidence to support the Board's holding that the failure to reinstate Toivonen was unlawful. 359 F.2d 829.

On January 8, 1964, the Board ruled that the four challenged ballots should be counted and therefore certified the Union as the exclusive bargaining representative of Stafford's employees. Three weeks thereafter, Immel and Becker were discharged the second time. Jack Stafford's stated reason for firing them was their driving truck 15 at 55 miles per hour, in contravention of respondent's rule that its trucks should not be driven in excess of 50 miles per hour.

The refusal to bargain issue involves an insurance policy that Stafford put into effect on March 10, 1964, under which respondent would pay two-thirds of the cost and the drivers the other third through payroll deductions. Stafford did not consult the Union about this plan even though bargaining sessions were then taking place. A similar plan had been announced in May 1963 and posted in June 1963 but failed to carry because too few drivers signed up.

In the present case, the Board found that Stafford's discharge of Immel and Becker for speeding was a pretext, and that they were actually discharged for their Union activities. The Board also found that Stafford's unilateral dealing with its employees about an insurance plan illegally bypassed the Union. Accordingly the Board concluded that Stafford had violated Sections 8(a) (1), 8(a) (3) and 8(a) (5) of the Act. A typical cease and desist order was entered, and Stafford was also directed to reinstate Immel and Becker with back pay and to bargain in good faith with the Union with respect to insurance and other conditions of employment and to post a notice embodying the terms of the Board's order.

Discharges of Drivers Immel and Becker

As to the discharges of employees Immel and Becker, Stafford asserts that Section 10(b) of the Act prevents the consideration of any evidence more than six months prior to the July 28, 1964, charge filed by the Union with the Board. In this case, that would prevent the consideration of evidence before January 28, 1964.

Section 10(b) of the Act provides in pertinent part (29 U.S.C. § 160(b)):

"Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * *" (29 U.S.C.A. § 160(b)).

Section 10(b) was construed in Local Lodge No. 1424, International Association of Machinists et al. v. National Labor Relations Board (Bryan Manufacturing Co.), 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed. 2d 832. The Supreme Court rejected the Board's argument that Section 10(b) is merely a statute of limitations and not a rule of evidence. However, the Court held that "where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices * * * earlier events may be utilized to shed light on the true character of matters occurring within the limitations period" (362 U.S. at p. 416, 80 S.Ct. at p. 826). In the present case, the discharges of these two employees occurred on January 30, 1964, and were within the six-month limitation period. Since those discharges might themselves constitute unfair labor practices, under the Bryan Manufacturing case it is permissible to consider earlier evidence, such as involved in Stafford I.

In Stafford I, respondent did not challenge the Board's finding that in violation of Section 8(a) (1), Stafford had interrogated and threatened Immel and Becker and other employees because of their Union activities and had threatened to enforce Company rules more strictly and to discharge any employees for any infraction thereof if the Union became their bargaining representative. There this Court agreed with the Board that Immel's first discharge was because of his Union organizational activities rather than for any health reasons and was in violation of Section 8(a) (3). There is no need to repeat here the above-outlined evidence concerning Immel's Union activities. (See also 359 F.2d at pp. 831-832; 150 N.L.R.B. at pp. 1040-1042, 1045-1048, 1050-1051.)

In Stafford I, Becker testified that on June 22, 1963, the date of the first Union organization meeting, Jack Stafford asked Becker whether he planned to attend. Mr. Stafford told Becker that if his employees wanted hospitalization insurance, he would send someone to see them the next day to sign them up. With respect to unionization, Mr. Stafford admitted that he told Becker that "nobody was going to run his outfit." Mr. Stafford also admitted that he told several of his employees that if they joined the Union, those who did not live up to his "strict rules * * * were all done." Becker told Mr. Stafford the drivers would not "buy" a deal with him, and that Becker would have to go along with the drivers. He and Immel testified against respondent in Stafford I in October 1963.

Becker was rehired on August 23, 1963, and Immel in November 1963. On January 8, 1964, the Board included the disputed ballots of Becker and Immel in its tally resulting in a certification of the Union on January 8, 1964. Just three weeks thereafter, namely, on January 30th, Stafford discharged Immel and Becker on the ground that they had violated the Company's 50-mile per hour speed limitation. We agree with the Board that these discharges were not predicated solely on valid grounds, so that the discharges were invalid under the Act. National Labor Relations Board v. Mid-West Towel & Linen Service, Inc., 339 F.2d 958, 962 (7th Cir. 1964); National Labor Relations Board v. Symons Manufacturing Co., 328 F.2d 835, 837 (7th Cir. 1964).

In any event, we approve the Board's determination that Stafford used the speeding by Immel and Becker as a pretext to cover their discharges for having successfully helped to obtain representative status for the Union. Thus it should be noted that Stafford assigned these two men to drive its truck 15, knowing that...