Tele-Trip Company v. NLRB, 9394.

• Decision Date: 11 January 1965
• Docket Number: No. 9394.,9394.
• Citation: 340 F.2d 575
• Parties: TELE-TRIP COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

340 F.2d 575 (1965)

TELE-TRIP COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 9394.

United States Court of Appeals Fourth Circuit.

Argued October 2, 1964.

Decided January 11, 1965.

Winthrop A. Johns, Washington, D. C. (Reilly & Wells, Washington, D. C., on brief), for petitioner.

Morton Namrow, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsch, Atty., N. L. R. B., on brief), for respondent.

Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge:

Tele-Trip Company, Inc., (hereinafter Tele-Trip or the Company) petitions this court under Section 10(f) of the National Labor Relations Act (hereinafter the Act), 29 U.S.C.A. § 160(f), to set aside an order entered by the National Labor Relations Board on March 6, 1964.¹ The Board cross-petitions for enforcement of its order.

Tele-Trip, a Delaware corporation engaged in selling air travel insurance throughout the United States, has three locations in the Washington, D. C., area, Washington National Airport, Dulles International Airport and City Terminal at 12th and K Streets. Sales are made by machines and by women employees called booth sales representatives. The Company had commenced operating at National in December 1960, at City Terminal in September 1962, and at Dulles in November 1962. At the time of this controversy the Company employed fifteen representatives at National, four at Dulles and three at City Terminal. Although the main office of the Company was in Washington, the three area locations were under the supervision of Sam Irby who maintained his office at National and spent the greater part of his time there; however, he made periodic visits to Dulles and City Terminal. Irby reported to Mr. Cruze, the vicepresident in charge of sales, and to Mr. Brady, the president, who had offices in the main office downtown.

The acts which were found to constitute unfair labor practices occurred at Washington National Airport during an organizational drive by the Insurance Workers International Union AFL-CIO. The organization campaign began in mid-February 1963 when Mrs. Petti, a booth sales representative at National, contacted a vice-president of the Union. He gave her union cards and with the help of Mrs. Daniel, another employee at National, she distributed the cards to the other booth sales representatives at National for the purpose of securing their signatures. The union activity was carried on secretly and most of the contacts with the employees were made on the way to and from work; one meeting was held on March 12 at the home of an employee where four persons, including Petti and Daniel, were present. The Company admitted, however, that Brady had heard "rumors" of union activity on March 22 when Casteel, a company employee at Dulles who was found by the examiner and the Board to be a "supervisor," came to the main office to deliver some policies and while there inquired of Brady concerning the union rumors at National. Brady stated that this type of talk was not unusual and he regarded it as merely a "rumor." The organization drive reached its peak on March 27 when the vice-president of the Union mailed a letter to Irby stating that the Union had been selected as bargaining agent for the booth sales representatives at National and requesting recognition of the Union for collective bargaining purposes.

On the same day the letter was mailed to Irby, Brady, the company president, called Irby and asked him to meet Brady and Cruze for lunch at a Washington club to discuss "lagging sales" at National. Brady and Cruze testified that on March 26 they had received the semimonthly sales report for March 1-15 which showed sales were behind those of the preceding year. As air traffic had been increasing they became alarmed and decided something must be done. At the meeting which lasted approximately two and one-half hours, the situation and possible remedies were discussed, according to their testimony, All three officers agreed that the only thing which could be done was to discharge the employees with low sales production and replace them with new girls. Irby stated he could only dismiss two girls at that time and still operate all the sales booths, but he thought Petti, Jenkins and Daniel were the lowest. Irby did not have with him the records of individual sales and Brady and Cruze left it to him to decide which two employees to terminate. Irby also suggested that a pay raise might serve as an incentive as many of the employees had been at the maximum hourly rate of $2.00 for some time. The officers admitted that the union "rumors" were discussed, but insistently denied that names of particular employees were mentioned.

After the luncheon Brady and Cruze returned to the main office and decided that a pay raise as suggested by Irby might help the situation. Brady composed a letter which he sent to twelve employees. Eight employees at National and one at City Terminal were increased from $2.00 to $2.10 per hour, three employees who had been with the Company six months were raised from their starting salary of $1.75 to $2.00 an hour (all at National), and Irby's salary was increased $35.00 per month. It was testified that it was a Company policy to grant automatic increases from $1.75 to $2.00 to all employees after they had been with the Company for six months.

According to Irby, he returned to his office at National and compiled tables showing the sales averages for all the booth sales representatives at National which confirmed his statement to Brady that Petti, Jenkins and Daniel were the low producers. As the standing of Jenkins and Daniel was relatively close, he decided to retain Jenkins and put her on probation as she had five children but to discharge Petti and Daniel (Irby explained further that he felt Jenkins was putting forth more effort than Daniel). It was then too late in the day to take any action as Petti, Jenkins and Daniel had gone home. The next morning, March 28, when Irby came to work he telephoned Petti at her sales booth and Daniel at home (as she had the day off) and told them to report to his office. Petti arrived and he dismissed her stating that it was because of her low sales average. After Petti left, Daniel arrived and he told her the same thing. Neither girl at that time mentioned the Union. Irby also sent a note to the payroll department which stated the girls were dismissed because of continued low level sales. In the afternoon he gave Jenkins a letter which stated she had been placed on probation and further action would be taken unless her sales improved.²

After these occurrences the Union continued its organizational drive. On March 29 it filed a petition with the Regional Office of the Board requesting a representation election. On April 22 a hearing was held on the petition at which Tele-Trip asserted that National alone was not an appropriate bargaining unit and contended that the unit should include all three Washington locations. Then, on April 30, the complaint was filed with the Board which led to the Board's now contested order. A hearing was held on August 26 and 27 before a trial examiner and he filed his report and recommended order on October 28.

Throughout the proceedings Tele-Trip has contended: That the Company was not responsible for Casteel's conduct as she was not a supervisor within the meaning of Section 2(11) of the Act, 29 U.S.C.A. § 152(11),³ as she had only routine responsibility; that the dismissal of Petti and Daniel and the wage increases were steps taken to combat "lagging sales" at National and could not have been for any other reason as the union activities were carried on in secrecy and the officers were unaware of the organizational drive until they received the letter on March 28 which was the day after the action was taken. To justify the dismissals the Company also introduced the tables Irby had compiled which showed the sales averages for the employees at National. The Company contends here that the findings and conclusions of the trial examiner which were adopted by the Board were not supported by substantial evidence in the record and that the trial examiner was biased and exhibited his determination to reach a clearly preconceived result.

The finding by the trial examiner that the Company had violated Section 8(a) (1) of the Act by interrogating an employee and making threats of economic reprisal focuses upon Casteel, the "supervisor" at Dulles, and her activities. The acts which have been found to constitute this unfair labor practice took place on the evening of March 22, the same day Casteel had gone to the main office and told Brady of the union "rumors." Jenkins testified that she had been called by Casteel who asked her to give Casteel the name of a third party involved in the union movement. When Jenkins stated she did not have that information, Casteel told her if the girls joined a union wages would be lowered and certain privileges withdrawn. Casteel admitted she had called National that evening not for the purpose of talking to Jenkins, but that Jenkins happened to answer the telephone and they conversed. She stated that the Union was discussed but that she could not recall the exact conversation.

In this connection the real issue centers on whether or not Casteel was a "supervisor" within the meaning of Section 2(11) of the Act. Casteel had been employed as a booth sales representative at National when the Company opened that office in December 1960. When the Company opened the Dulles office Irby asked her if she would transfer there. Her primary responsibility would be to report directly to Irby on the conduct of the other employees and perform certain administrative functions. In addition, she was to be a booth sales representative and sell insurance just like the other employees. The...