R.J. Lallier Trucking v. N.L.R.B.
| Decision Date | 20 July 1977 |
| Docket Number | No. 76-1829,76-1829 |
| Citation | 558 F.2d 1322 |
| Parties | 95 L.R.R.M. (BNA) 3101, 82 Lab.Cas. P 10,023 R. J. LALLIER TRUCKING, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William C. Hoffman, St. Paul Minn., for petitioner.
Joseph Ferrara N. L. R. B. Appellate Court Branch, Washington, D. C., for respondent; John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Asst. Gen. Counsel, Washington, D. C., on brief.
Before LAY and HENLEY, Circuit Judges, and NANGLE, District Judge. *
R. J. Lallier Trucking, an individual proprietorship owned and managed by Raymond J. Lallier of St. Paul Minnesota, has brought this direct petition for review of an order of the National Labor Relations Board directing petitioner to cease and desist from certain unfair labor practices proscribed by § 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a)(1) and (3), to reinstate with back pay and without loss of seniority a discharged employee, Gerald Garrity, and to post appropriate notices of compliance. The Board has cross-petitioned for enforcement of its order. We have jurisdiction by virtue of § 10(f) of the Act, 29 U.S.C. § 160(f).
Petitioner is engaged in the business of commercial hauling in and around St. Paul, and it owns and operates a small fleet of trucks; its principal customers are Northern States Power Co. and Minnesota Mining & Manufacturing Co. During 1974 and for most of the first half of 1975 petitioner employed four truck drivers, including Garrity and Robert Bauerfeld. Three of the four drivers operated petitioner's trucks under written lease agreements. Garrity had no written lease but was operating under what the parties considered to be an oral lease; he was compensated on the same basis as were the other drivers. Prior to late May or June, 1975, the drivers were not represented by any labor union as their collective bargaining agent.
Petitioner's business is seasonal, and its busy season runs from about October 1 of a given year to about April 15 of the following year. Petitioner is able to operate at least one truck on a twelve month basis, but during the slack period of each year the employment of the drivers by petitioner is sporadic. Although no collective bargaining agreement was in force during the period with which we are concerned, it appears that petitioner would call drivers to work during slack periods on the basis of seniority. If, as happened on several occasions with respect to Garrity, a driver was discharged for any reason, he lost his seniority, and would be at the bottom of the list if he was rehired.
The controversy presented here arose when on March 31, 1975 Local Union 221 of the Construction, Building Materials, Ice and Coal Drivers and Helpers and Inside Employees, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union, applied to the Board for the calling of a representation election to determine whether it was the desire of a majority of the four drivers that the Union become their collective bargaining agent.
Lallier was evidently of the view that should his operation be unionized, the existing lease arrangement between it and the drivers would have to be scrapped, and that unionization would increase petitioner's operating costs and might result in loss of work by the drivers.
Petitioner opposed the calling of the election contending that the drivers were independent contractors and were not employees. The Board held a hearing on April 16, 1975 and rejected that contention which is not in issue here.
The election was held on May 28, and the Union prevailed by a vote of three to one. Garrity, Bauerfeld and another driver, Stromberg, voted for the Union. The fourth driver, Frank Tschida, voted against it. Immediately after the election Mr. Lallier, who appeared to be angry at the results, made certain remarks to Bauerfeld, Garrity and Stromberg.
On the morning of June 2, 1975, four days after the election, Tschida at Lallier's direction contacted Garrity by telephone and asked him if he could report for work on an excavation job in St. Paul, probably within the next hour or so. Garrity advised Tschida that he had other plans for the day and would not be able to report. When Lallier learned of this, he immediately discharged Garrity by means of a letter which was sent to Garrity by certified mail. The letter gave as the sole reason for the discharge the fact that Garrity had refused to report for work on that day. No reference was made to the fact that on two previous occasions Garrity had been discharged for being late to work, and that in November, 1974 he had been discharged for drinking on the job. On each of those occasions Garrity had been rehired but with loss of seniority. Garrity was last reemployed in February, 1975, but it appears that between the date of his rehiring and the date of his discharge he had actually worked on only about seven days.
On the evening of June 9 Lallier contacted Bauerfeld and directed him to report for work on the following morning. Bauerfeld did so, but he arrived late, found no one on petitioner's business premises and went home. Immediately thereafter he secured a full time job as a guard at the Minnesota State Prison. In late June Lallier contacted Bauerfeld and inquired whether he considered himself still to be employed by petitioner. Bauerfeld indicated that he did not; Lallier then directed Bauerfeld to surrender certain keys that were in his possession, and Bauerfeld presumably did so.
It will have been observed that the episodes involving both Bauerfeld and Garrity occurred during the 1975 slack season. When petitioner's busy season began in the fall of 1975 petitioner made no effort to recall Bauerfeld to work. Bauerfeld did not long retain his job at the prison; during most of August and September, 1975 he worked for two other trucking companies, but in each instance his employment was terminated prior to the expiration of his thirty day probationary periods.
Apparently the Union was duly certified as the bargaining agent for petitioner's drivers, but by agreement between petitioner and the Union collective bargaining negotiations were postponed until the fall of 1975. We are not apprised as to whether a contract between petitioner and the Union was ultimately negotiated.
In October, 1975 unfair labor practice charges against petitioner were filed with the Board, and the Board issued its complaint in December. It was charged in substance that on two occasions prior to the election of May 28 Lallier in his management capacity had made threatening anti-union statements to his drivers and had made similar statements immediately after the election, and that the statements constituted violations of § 8(a)(1) of the Act. It was further charged that the discharge of Garrity was on account of his pro-union activities and was in violation of § 8(a)(3) and (1) of the Act. A similar charge was made with respect to Bauerfeld on the theory that the failure of petitioner to call him back to work at the beginning of the busy season of 1975 constituted an unlawful discharge in retaliation for his support of the Union.
Petitioner denied the charges. With respect to the statements made to the employees petitioner contended that they were protected by the first amendment to the Constitution of the United States as implemented by § 8(c) of the Act. As to Garrity, petitioner contended that he was not discharged for having supported and voted in favor of the Union but because of his failure to report for work on June 2. Petitioner denied that it had ever discharged Bauerfeld and asserted that Bauerfeld had simply quit his employment with petitioner and had gone to work for other employers.
The case was assigned to an administrative law judge who held an evidentiary hearing in February, 1976. In late April, 1976 the judge submitted his decision and recommended order. The charge that Bauerfeld had been discharged unlawfully was dismissed. The other charges were sustained.
Petitioner excepted to the decision and the recommended order. In August, 1976 the Board adopted the decision of the administrative law judge as its own and also adopted the recommended order. The instant proceedings were then timely commenced in this court.
In pertinent part the Board's order is as follows:
Respondent, R. J. Lallier Trucking, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities.
(b) Threatening employees with loss of work, layoff or reprisals because of their union activities or protected concerted activities.
(c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found will effectuate the policies of the Act:
(a) Offer to Gerald M. Garrity immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him. . . .
Petitioner contends here, as it did before the agency, that the statements made by Lallier both before and after the election were protected by the first amendment and by §...
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