Woodline Motor Freight, Inc. v. N.L.R.B.

• Decision Date: 13 June 1988
• Docket Number: No. 86-1631,86-1631
• Citation: 843 F.2d 285
• Parties: 127 L.R.R.M. (BNA) 3260, 108 Lab.Cas. P 10,414 WOODLINE MOTOR FREIGHT, INC. Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 285

843 F.2d 285

127 L.R.R.M. (BNA) 3260, 108 Lab.Cas. P 10,414

WOODLINE MOTOR FREIGHT, INC.Petitioner, v.NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 86-1631.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 3, 1987.

Decided March 31, 1988.

Rehearing and Rehearing En Banc Denied June 13, 1988.

Russell Gunter, Little Rock, Ark., for petitioner.

Patrick Szymanski, Washington, D.C., for respondent.

Before HEANEY and WOLLMAN Circuit Judges, and ROSS, Senior Circuit Judge.

HEANEY, Circuit Judge.

Woodline Motor Freight, Inc., petitions this Court to review an order of the National Labor Relations Board.That order found Woodline committed a series of unfair labor practices and required Woodline to cease and desist from further specified unfair labor practices and to take certain affirmative action to effectuate the policies of the National Labor Relations Act,29 U.S.C. Secs. 151-69.The Board cross-petitions for enforcement of its order.With the exceptions noted in this opinion, we hold that there is substantial evidence in the record as a whole to support the Board's findings, and we thus enforce the Board's order.

Woodline does not come to this Court with a clean record.It has twice been held to have violated the National Labor Relations Act,29 U.S.C. Secs. 151-69.In 1977, the Board found that Woodline had committed serious unfair labor practices.Woodline, Inc., 231 N.L.R.B. 863, 97 L.R.R.M. 1288(1977), enforced, 577 F.2d 463(8th Cir.1978).In the same year, the Board also found that Woodline violated the National Labor Relations Act,29 U.S.C. Secs. 151-69, by threatening its employees during an election.Woodline, Inc., 233 N.L.R.B. 97, 97 L.R.R.M. 1217(1977).No request for review of this decision was made.

In this proceeding, Woodline asks this Court to review only limited portions of the Board's order.Woodline does not challenge the Board's findings that it violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158 (a)(1), by coercively interrogating employees about union activities, by threatening employees who supported the union, by creating the impression that the employees' union activities were under surveillance, and by promising employees additional benefits if they abandoned their support for the union.Nor does Woodline challenge the Board's findings that it violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. Secs. 158(a)(1) and (3), by reducing the work week; by laying off Russellville line drivers Kenneth Lloyd, Wesley Clayton, Opie Whitbey, C.L. Dawson, and Charles Churchill; by reducing the work available to Ted Sweden; by constructively discharging Wilford Lanthorn; by reducing the work available to remaining Russellville line drivers after March, 1981; and by discharging Leonard Hogan.The Board found that Woodline took these actions because these employees engaged in union activities.We find substantial evidence in the record to support these uncontested findings.We, therefore, summarily enforce the uncontested portions of the remedial order.SeeMontgomery Ward & Co. v. NLRB, 385 F.2d 760, 765(8th Cir.1967).

We turn to the contested violations:

(1) The Discharge of Paul Rickman

We find substantial evidence to support the Board's finding that Paul Rickman was discharged in violation of section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1).

Rickman asked Woodline in June, 1980, to install air conditioners in the trucks.Woodline refused.Rickman proposed to the other drivers that he would install an "add-on" unit on his truck and, if it worked, the other drivers could do the same.The drivers authorized Rickman to present the idea to the management.The proposal was rejected.In mid-July, he asked the company president about the proposal.The president rejected it.On July 28, 1980, Rickman was fired.

Rickman's efforts to have an air conditioner installed in his truck were undertaken, not only for his benefit, but also for the benefit of his fellow employees.He discussed his proposal with other drivers, they supported it, and he acted as their representative.Moreover, Woodline knew that Rickman was acting with the support of the other drivers.Thus, the efforts to install air conditioners were clearly concerted.

Rickman's efforts not only were concerted, but they were protected.Although Rickman violated the chain of command rule when he went to the president to press his campaign for air conditioners, there is substantial evidence to support the Board's finding that Rickman's discharge was, in reality, motivated by his protected activity.Moreover, there is little evidence to support Woodline's argument that it would have discharged him, even in the absence of his protected activity.Thus, the Wright Line Standard, seeWright Line, Inc., 251 N.L.R.B. 1083, 105 L.R.R.M. 1169(1980), approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 403, 103 S.Ct. 2469, 2475, 76 L.Ed.2d 667(1983), is satisfied.See alsoLemon Drop Inn v. NLRB, 752 F.2d 323(8th Cir.1985).The Board's findings as to Rickman are affirmed, and its remedial order with respect to him is enforced.

(2) The Springdale Violations

On February 18, 1980, Woodline terminated all of its employees who worked at its Springdale terminal.Operations continued under an agreement between Woodline and ABE Trucking Company, which was run by Martin Huffmaster.The Board found that, under the agreement, Huffmaster did local pickup and delivery work in exchange for a percentage of the revenue from the local operation.Huffmaster purchased the trucks from Woodline, used its trailers and operated under its name and freight license.Huffmaster rented the Springdale terminal.Woodline insured Huffmaster's freight and paid his phone bills.Huffmaster hired Woodline's operations manager as his supervisor.

On the basis of the above findings, the Board found that Woodline violated the Act by closing the Springdale terminal, by terminating all employees, and by continuing the operation through its agent and alter ego Huffmaster, all because its employees engaged in union activities.It required Woodline and Huffmaster to cease and desist from interfering with employees in their exercise of rights guaranteed by section 7 of the Act, 29 U.S.C. Sec. 157.It ordered Woodline and its alter ego Huffmaster jointly to reinstate all former Springdale employees (leaving them free to order their business relationship with one another as they wished); to make the former Springdale employees whole for any losses resulting from the closing of the terminal; to expunge from the record any reference to the discharges or layoffs; to reinstate its former practice of allowing line drivers to select assignments according to seniority; and to post appropriate notices.

Woodline asserts on appeal that the Board erred in finding that ABE Trucking was the alter ego of Woodline and thus erred in ordering the reinstatement of the Springdale employees.We find substantial evidence in the record to support the Board's alter ego finding.

The question of whether a new employer is an alter ego and thus equally obligated to remedy the original employer's unfair labor practices is a question of fact for the Board.Southport Petroleum Co. v. NLRB, 315 U.S. 100, 101-04, 62 S.Ct. 452, 453-55, 86 L.Ed.2d 718(1942);NLRB v. Campbell-Harris Electric, Inc., 719 F.2d 292, 295(8th Cir.1983);NLRB v. Scott Printing Corp., 612 F.2d 783(3rd Cir.1979).Factors to be considered by the Board in making this determination are: whether the change in operations is unlawfully motivated, whether the new employer is owned or controlled by the old employer, and whether the new operator has the same business purpose, operations, equipment, customers, management, and supervision as the old operation.Campbell-Harris Elec. Co., 719 F.2d at 295-96;Scott Printing Co., 612 F.2d at 785-87.

(a) Motivation

There can be little doubt that the Board's finding that Woodline transferred its Springdale terminal to Huffmaster to retaliate against the employees for their union activities is supported by substantial evidence on the record as a whole.Woodline has a long history of anti-union animus; the decision to transfer was not made until after Woodline was aware that a majority of the Springdale employees supported the union; and the manager of the Springdale operation told Huffmaster's brother that he was looking for an agent to run the terminal because Woodline was having union problems.

Woodline argues that it made the change for economic reasons.While there is some support in the record for this argument, the record contains substantial evidence which justifies the Board's decision to reject it.

(b) Control

We likewise find substantial support in the record for the Board's finding that Woodline controlled ABE Trucking and Huffmaster.While ABE Trucking paid the employees, withheld all taxes and social security benefits, carried worker compensation benefits on employees, and administered day-to-day discipline, real control continued to rest with Woodline.The agreement between Woodline and Huffmaster was oral and could be cancelled at any time; Woodline arranged the financing for Huffmaster (an unemployed truck driver at the time the agreement was made); Huffmaster put up no money of his own; all bills of lading and other freight documents were in Woodline's name; and Woodline insured the freight.

(c) Business Purpose and Operation

We find substantial support in the record for the Board's finding that Huffmaster operated the business in the same manner and mode as had Woodline.He performed precisely the same services as Woodline.Indeed, he held himself out to the public as if ownership in the Springdale operation had never changed.He served the same customers and followed the same procedures.There was no interruption in service.There was substantial continuity in management and supervision, and the terminal,...