NLRB v. Transport Company of Texas

• Citation: 438 F.2d 258
• Decision Date: 22 March 1971
• Docket Number: No. 30191 Summary Calendar.,30191 Summary Calendar.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORT COMPANY OF TEXAS, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

438 F.2d 258 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPORT COMPANY OF TEXAS, Respondent.

No. 30191 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 10, 1971.

Rehearing Denied March 22, 1971.

Clifford Potter, Director, N. L. R. B., Houston, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Eugene B. Granof, Joseph C. Thackery, Attys., N. L. R. B., Washington, D. C., for petitioner.

Powell, Brown & Maverick, William A. Brown, Houston, Tex., for respondent.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

This labor case involves the rights of reinstated economic strikers upon a company's later reduction of force. We hold that they are not to be treated as new employees but must be treated uniformly with nonstrikers.

The case comes to us upon application of the National Labor Relations Board for enforcement of its order issued June 30, 1969, against the Transport Company of Texas.

The Board found that the Company had violated §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act¹ by selecting four recalled economic strikers — Everado Delgado, Eusebio Cuellar, Leonardo de la Garza, and Roumaldo Guerra — for layoff based upon their participation in a strike on May 1, 1968. The Board therefore ordered the Company (a) to cease and desist from this unfair labor practice, (b) to offer Delgado reinstatement, (c) to restore all rights and privileges to Cuellar, de la Garza, and Guerra,² and (d) to make the four workers whole for any loss of earnings suffered as a result of the Company's unlawful actions. The Board also ordered the usual posting of notices. 177 NLRB No. 82 (1969).

I. The Facts: The Trial Examiner's Conclusions.

The Trial Examiner found the facts to be as follows.

The Company is in the business of hauling crude oil for Pemex, an agency of the Mexican government, from Brownsville, Texas, across the Mexican border and back again. The Company has two categories of employees working at its Brownsville terminal — drivers and mechanics. On December 12, 1966, the Board certified the Oil, Chemical, and Atomic Workers International Union, AFL-CIO, as the Brownsville employees' exclusive bargaining representative. Subsequent contract negotiations between the Union and the Company reached an impasse, and on May 1, 1968, seventeen of the twenty drivers struck. The Company continued to operate, however, by using the three nonstriking drivers and the mechanics to man the trucks. In addition, the Company hired eight replacements for the striking drivers. These replacements were told that they did not have to belong to the Union to work for the Company and that their jobs were not just for the duration of the strike but were "permanent" as long as they did their work properly.

On May 3, 1968, the Union abandoned the strike and immediately applied for reinstatement of all seventeen strikers. The Company, having decided to retain the eight replacements and three nonstriking drivers, needed only four more drivers at the time. On May 4 therefore the Company took back the four men considered to be the best drivers on strike: Manuel Buentello, Rafael Martinez, Everado Delgado, and Justo Castillo. On May 7 the Company decided to increase the number of drivers from fifteen to seventeen and accordingly reinstated strikers Martin Jarmon and Roumaldo Guerra.³ In the next two months two of the replacements quit, and the Company recalled to work strikers Eusebio Cuellar and Leonardo de la Garza. Thus by June 27 the Company had reinstated eight of the seventeen striking drivers; the other nine were never reinstated because they had been replaced and were never again needed.

In July, however, it became apparent that because of a reduction in the amount of their business the Company would be forced to lay off some of its drivers. Accordingly, the Company's General Manager, E. C. Dodds, discussed the matter with William Brown, counsel for the Company. Brown told him that the easiest way out of the problem would be to discharge the permanent replacements because in that event the Union would not complain. Brown added, however, that the Company had no duty to discharge the replacements but was obligated to retain the best drivers regardless of union affiliations. He suggested that Dodds talk over the situation with Cecil Brunk, the resident manager at Brownsville.

Dodds then telephoned Brunk and advised him of the general guidelines that Brown had given him. He instructed Brunk to select his twelve best drivers, advised him not to show preferential treatment to returning strikers, and stated that he had no obligation to discharge replacements first. Indeed, in view of the representations made to the replacements when they were hired, "indications were that possibly they should receive preferential treatment." A day or two later Brunk gave Dodds the names of the four drivers he had selected for layoff — Delgado, Guerra, Cuellar, and de la Garza. Each was one of the striking drivers who had been reinstated in the two months following the strike. Dodds approved Brunk's recommendation, and on July 15 the Company laid off the four named drivers.

At the hearing before the Trial Examiner, Brunk and Dodds explained how Brunk reached his decision as to which employees the Company should lay off. Keeping in mind counsel's guidelines, Brunk first attempted to retain the twelve best drivers. Peculiarly enough, he decided that all his drivers — non-strikers, replacements, and reinstated strikers — were of equal ability. On this premise, he was forced to find some basis for the selection other than actual ability. One of the factors he relied upon was the commitment that the Company had made to the replacements: the Company had told them that they were to be permanent, as long as they performed satisfactorily. Since the Company thus had an obligation to retain the replacements and no duty to show preferential treatment to the returning strikers, Brunk went to the list of reinstated strikers to choose the drivers to be laid off. With the exception of Delgado, who had two accidents since being reinstated, Brunk chose the last strikers called back to work. Although, as noted, Brunk had testified that all the drivers were of equal ability, he rationalized his lay-off procedure on the basis of the Company's previous policy of recalling the "best" of the striking drivers first; thus those recalled last were the "least desirable of those that were called back to work."⁴ Moreover, elaborated Dodds, there was less moral obligation on the Company's part to keep the men it had hired last — especially since the Company had a commitment to its other drivers.

The Trial Examiner further found that in making his selections Brunk did not rely on the drivers' accident records, history of absenteeism or tardiness, experience generally, or length of service with the Company. With the exception of Delgado, Brunk's sole criterion for judging these men to be his "least desirable" drivers was the fact that they were the last drivers recalled to work following the strike. To test the accuracy of that criterion, the Trial Examiner surveyed the driving records of all the drivers and found that with the exception of Delgado, the laid off drivers in fact had accident records equal to or superior to those of the retained drivers.⁵

From this evidence, the Trial Examiner concluded that

the only characteristic that distinguished the laid-off employees from those retained was their participation in the strike. This becomes more apparent from Respondent\'s emphasis on its commitment to replacements and its stress on its selection of reinstated strikers for layoff on the basis of the order in which they had been reinstated, its point being that since the alleged discriminatees were called back to work after four other strikers had been reinstated, and because strikers were being reinstated in accord with the degree of their "desirability" (competency), the discriminatees ranked lower than those reinstated ahead of them, and this resulted in their layoff. Thus, the only objective standard used, or suggested as having been used, in determining who should be laid off — once it had been determined that all drivers were "equal" — was the order in which strikers had been reinstated.

The Board adopted these findings and conclusions. See 177 NLRB No. 82 (1969).

We have reviewed the record carefully and conclude that substantial evidence supports the Board's findings as to the Company's method of choosing the drivers to be laid off. See Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Thus the only question for review is whether the Company's method of selection was lawful.

II. The Law: Reinstatement Rights of Economic Strikers.

The National Labor Relations Act, 29 U.S.C. § 151 et seq., provides the statutory basis for the reinstatement rights of economic strikers.⁶ Section 2 (3) of the Act defines the term "employee" to include strikers who upon cessation of a strike have not obtained any other regular and substantially equivalent employment. While not granting to strikers any substantive rights, § 2(3) makes it clear that strikers retain the rights guaranteed to employees in other sections of the Act. See N.L.R.B. v. Mackay Radio & Tel. Co., 1938, 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381, 1389-1390; Note, 58 Calif.L.Rev. 511 (1970).

Section 7 of the Act provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations * * * and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The Supreme Court has consistently recognized the strike as a legitimate form of protected concerted activity; indeed, it is "the ultimate weapon in labor's arsenal." N.L.R.B. v. Allis-Chalmers...