Tony Scott Trucking, Inc. v. N.L.R.B.

Decision Date28 April 1987
Docket Number86-5262,Nos. 86-5115,s. 86-5115
Citation821 F.2d 312
Parties125 L.R.R.M. (BNA) 2910, 106 Lab.Cas. P 12,412 TONY SCOTT TRUCKING, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

D. Patton Pelfrey, Charles E. Allen, III, James H. Massey (argued), Brown, Todd and Heyburn, Louisville, Ky., for petitioner cross-respondent.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Collis S. Stocking/Katherine Morgan, John Welsh (argued), Emil C. Farkas, Regional Director, Region 9, N.L.R.B., Cincinnati, Ohio, for respondent cross-petitioner.

Before JONES and RYAN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


This is before the court on Tony Scott Trucking, Inc.'s ("Company") petition to review and the National Labor Relations Board's ("Board") cross-application to enforce an order issued by the Board against the Company on December 31, 1985. The Board found that the Company violated Secs. 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(a)(1) and (5) (1982), by refusing to bargain with the General Drivers, Warehousemen and Helpers Local Union No. 89 ("Union"), affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which had been certified as the exclusive representative of an appropriate unit of the Company's employees following the representation proceedings described below. We grant the Board's petition for enforcement.

On July 11, 1984, the Union filed a petition with the Board seeking a representation election for a unit of the Company's employees. The Board conducted a secret ballot election for employees on September 6, 1984. Thirty-three valid ballots were cast, 19 in favor of and 15 against representation by the Union. The Company filed timely objections to the election, alleging that the Union had impermissibly interfered with the election by offering to waive initiation fees for those employees who signed authorization cards before the election, and by subjecting employees to threats of physical harm, racial slurs, false accusations of criminal wrongdoing, and other acts of intimidation. A hearing was held to resolve the issues raised by the objections. On November 14, 1984, the hearing officer issued a report recommending that the objections be overruled and the Union be certified. The Company filed timely exceptions to this report. On May 10, 1985, the Board adopted the hearing officer's findings and recommendations and certified the Union as the collective bargaining representative of the employees in the unit.

Thereafter, the Company refused to bargain with the Union. The Union then filed an unfair labor practice charge, and the Board issued a complaint alleging that the Company's refusal to bargain with the Union violated the NLRA. In its answer, the Company claimed that its refusal to bargain was not unlawful because the Union was improperly certified. The General Counsel moved for summary judgment and the Board issued an order to show cause why the motion should not be granted. The Company filed a response repeating its allegations that the Union's conduct had affected the outcome of the election. On December 31, 1985, the Board issued its decision and order, finding that all issues raised by the Company in the unfair labor practice proceeding were or could have been litigated in the prior representation proceeding, and that the Company had not offered any newly discovered and previously unavailable evidence or alleged any special circumstances that would warrant a reexamination of the decision in the representation proceeding. Accordingly, the Board granted the motion for summary judgment and held that the Company had violated the Act by refusing to bargain with the Union. The Board's order required that the Company cease and desist from refusing to bargain with the Union and from in any way interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.

The issue before us is whether the Board, in overruling the Company's objections and certifying the Union, acted within the "wide degree of discretion" entrusted to it by Congress in resolving questions arising during the course of representation proceedings. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946). "The only question presented on judicial review is whether the Board has reasonably exercised its discretion in the matter." Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 827 (D.C.Cir.1970). The Board's findings of fact are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. Sec. 160(e). The Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).


In its first objection, Company alleges that the Union interfered with employees' rights to refrain from union activities or membership by offering a waiver of initiation fees for employees who signed authorization cards before the election. In order to succeed in its claim, the Company must establish two elements: (1) that such an offer was made, and (2) that it was made by the Union or its agents. See NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). In Savair, the Supreme Court held that a union's promise to waive initiation fees for only those employees who signed a recognition slip prior to an election unlawfully interferes with an employee's free choice in the election.

The Company bases its claim of a Savair violation on the testimony of two individuals. The first is Roger Curry, who testified that about two months before the election, he was approached by another employee, Jimmy Burton, who was involved in union activities, and asked to sign a union authorization card. Curry refused to sign and told Burton he "wasn't going to sign no damn card." On the afternoon of July 18, 1984, following an employee meeting called by management, Curry drove his truck past the Tri-State Bedding Company in Bowling Green, Kentucky. He observed about twenty Company employees meeting in the Tri-State parking lot. One of the employees, Lewis Burton (Jimmy's brother) called Curry over. Curry stopped and talked with Lewis and Jimmy Burton and Tom Cox, another employee. According to Curry, with Cox and Jimmy Burton standing "right beside him," Lewis Burton told Curry "that if [he] didn't sign the card, it would cost [him] $150, if [he] did [sign the card then], it would cost $10." Curry again refused to sign. Curry also testified that Jimmy Burton later approached him and said that he would "come out cheaper" if he signed a card before the election.

The second individual is Jimmy Hudson, a Company mechanic. Hudson claims that he also heard a similar representation regarding a waiver of initiation fees. Hudson, who was working on a truck at the Bowling Green Facility, overheard an unidentified employee speaking to other employees in the truck shop, saying "those that didn't sign the card now, it would cost [them] a $100 later on." Hudson, however, could not see or identify the speaker or the other individuals who were present. He also stated that no one ever asked him to sign an authorization card.

Charles Priddy, an assistant president of the Union, also testified at the hearing. He stated that he conducted only two official meetings for employees of the Company during the organizing campaign. Priddy told the employees, in response to a question, that the dues and fees for the Union were fixed and they would be the same for all employees whether or not they had signed a union card. Priddy also stated that he never authorized any employee to act as a spokesman or representative of the Union.

Lewis Burton testified and denied having made any of the statements ascribed to him by Curry. Jimmy Burton and Tom Cox both testified and denied hearing Lewis Burton say anything about initiation fees. Jimmy Burton also denied making any of the comments Curry claims he made.

After hearing this testimony, the hearing officer stated that:

I found Curry's testimony concerning the cost of joining the Union to be less than credible. His testimony was contradictory and somewhat confused. In particular, I do not credit Curry's testimony that Lewis Burton told him that if he didn't sign a card it would cost $150 and if he did it would cost $10.

App. 51. The hearing officer then concluded that no Savair violation had occurred. The Board adopted this conclusion.

The Company now argues that the hearing officer's finding on this issue...

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