NLRB v. Thompson Transport Company

• Decision Date: 21 March 1969
• Docket Number: No. 9879.,9879.
• Citation: 406 F.2d 698
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THOMPSON TRANSPORT COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

406 F.2d 698 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THOMPSON TRANSPORT COMPANY, Inc., Respondent.

No. 9879.

United States Court of Appeals Tenth Circuit.

January 29, 1969.

Rehearing Denied March 21, 1969.

COPYRIGHT MATERIAL OMITTED

Edward Wall, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Frank H. Itkin and Mitchell L. Strickler, Washington, D. C., Attorneys, on the brief), for petitioner.

William G. Haynes, Topeka, Kan. (Lillard, Eidson, Lewis & Porter and O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., Charles N. Henson, Peter F. Caldwell, Roscoe E. Long, R. Austin Nothern and Brock R. Snyder, Topeka, Kan., on the brief), for respondent.

Before PICKETT, LEWIS and HICKEY, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

This case reaches us through petition of the National Labor Relations Board under section 10(e) of the National Labor Relations Act for enforcement of a remedial order made June 21, 1967, and premised on a Board decision that Thompson Transport Company (Company) had violated §§ 8(a) (1) and 8(a) (5) of the Act. The Board found that the Company violated § 8(a) (1) by threatening employees that it might close its Phillipsburg, Kansas, terminal if the employees chose union representation and § 8(a) (5) and (1) of the Act "by closing the terminal without prior notice to, or bargaining with the Union¹ concerning its decision to close the terminal and the effect of the closing upon the employees" The Company's resistance to enforcement asserts:

(1) That the Board\'s certification of the Union was invalid.

(2) That there is not substantial evidence on the record as a whole to support the Board\'s finding that the Company violated section 8(a) (1) of the Act.

(3) That there is not substantial evidence on the record as a whole to support the Board\'s finding that the Company violated section 8(a) (5) and (1) of the Act.

(4) That the Board\'s remedy as ordered does not effectuate the purposes of the Act.

The Board's Certification

The Company, a common carrier by truck of petroleum and related products, maintained terminals at McPherson and Phillipsburg, Kansas. On November 9, 1965 the Union filed a petition under § 9(c) of the Act for a representation election of the Company's employees at the Phillipsburg terminal. A full hearing was held on the petition and as a result thereof the Regional Director issued his Decision and Direction of Election which, inter alia, found Willis Hodge to be an employee of the Company rather than an independent contractor as argued by the Company and properly included within the requested bargaining unit.² Thereafter the company filed a petition with the Board to review the Director's decision. The Board on December 28, 1965 issued a telegraphic order denying the petition

as it raises no substantial issues warranting review except as to the status of the leased driver Hodge. As such issue can best be resolved by the challenge procedure, the decision and direction of election is hereby amended to permit the leased driver to vote subject to challenge.

Pursuant to the Board's order the election was held on December 29, 1965 in which nine votes were cast, five of which, including that of Hodge, were challenged. Thereafter the Regional Director conducted an investigation in respect to the challenged votes, and on January 28, 1966 determined that Hodge's ballot should be opened and counted.³ The Company did not petition the Board for review of this determination and the Board in noting that no objections had been filed to the Regional Director's report within the time provided for in its Rules and Regulations § 102.67(b), 29 CFR 102.67(b),⁴ adopted the Regional Director's findings and certified the Union as the duly elected representative of the Company's employees. At the unfair labor hearing the Company sought to relitigate the status of Hodge; however the Trial Examiner sustained General Counsel's objection thereto

on the basis of the Board\'s well established policy not to relitigate in an unfair labor practice proceeding such as this, issues which were or could have been litigated in a prior related representation proceeding absent newly discovered or previously unavailable evidence.

In NLRB v. Ideal Laundry & Dry Cleaning Co., 10 Cir., 330 F.2d 712, this court held that when an employer had not been granted an opportunity for a full hearing during the interlocutory administrative procedures on the issue of the appropriateness of the bargaining unit such issue was open in the unfair practice hearing and thereafter on review in this court. The fundamental of Ideal is simple and basic — due process in an administrative hearing requires an opportunity to be fully heard upon any issue that is determinative of the rights of the parties and when that opportunity is denied at the interlocutory level no finality can be accorded the determination there made. But this principle has not been abused by the Board in the case at bar. Although the Company did seek and obtain review of the Regional Director's determination of the appropriate unit the Board acted well within its discretion in holding that the issue of Hodge's status could best be determined through the challenge procedure. It is quite apparent that the validity of Hodge's vote might have had no effect upon the outcome of the election and thereafter the Company might have had no further interest in his inclusion in the unit. In any event the Board procedures provided full opportunity for review of the Director's decision to count the Hodge vote and the Company did not seek such review. To continue the issue as appropriate in the unfair practice hearing would be but to nullify the effectiveness of § 102.67(b) and violate the cautionary words of the Supreme Court that "* * * courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54.

We hold, as did the First Circuit in NLRB v. Rexall Chemical Co., 370 F.2d 363, that the Company's failure to exhaust administrative procedures as to Hodge's status precludes review of that issue in this court.⁵

The Section 8(a)(1) Violation

It is a basic violation of § 8(a) (1) for an employer to interfere with employee organizational activity by a coercive threat to close his plant. Irving Air Chute Co. v. NLRB, 2 Cir., 350 F.2d 176; cf. Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827. The core of the unfair labor practice lies, however, in the element of coercion and does not extend to a total restriction upon argumentative discussion of the effect of unionization upon the economic health of the company. The latter is protected activity under section 8(c) of the Act. J. S. Dillon & Sons Stores Co. v. NLRB, 10 Cir., 338 F.2d 395. The primary responsibility of determining whether particular utterances are to be construed as threats or mere expressions of opinion lies with the Board, Betts Baking Co. v. NLRB, 10 Cir., 380 F.2d 199, 202; NLRB v. McCormick Concrete Co. of S. C., Inc., 4 Cir., 371 F.2d 149, and its decision will not be disturbed on appeal unless the record as a whole does not reveal substantial evidence in support thereof, North American Rockwell Corp. v. NLRB, 10 Cir., 389 F.2d 866.

In the case at bar the Board...