MERCHANTS TRUCK LINE, INC., Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
No. 77-3043.
United States Court of Appeals,
Fifth Circuit.
Aug. 7, 1978.
Leslie Darden, New Albany, Miss., for petitioner, cross-respondent.
Elliott Moore, Deputy Assoc., Gen. Counsel, Alan Banov, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Paul J. Spielberg, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent, cross-petitioner.
Petition for Review and Cross-Application for Enforcemеnt of an Order of the National Labor Relations Board.
Before WISDOM, GOLDBERG and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
The issue before us is whether substantial evidence supports the NLRB's conclusion that the employer, Merchants,1 in violation of §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act, discharged four employees because they signed union authorization cards, and in order to discouragе pro-union activity among its employees. The record permits other inferences and contains evidence that would support the conclusion that the employer acted for sound business reasons, but the standard of review to which we are limited requires us to uphold the Board's decision.
I.
Although the employer challenges only one aspect of the Board's order, a brief summary of the circumstances that led to the unfair labor practice charges in this case is necessary to illuminate its analysis and our evaluation of it.
In May, 1976, several of Merchants' employees initiated a campaign to establish a Teamsters local as the employees' bargaining agent. During May, the employer's president and vice president were involved in at least two instances of threats and coercive interrogations directed at pro-union employees. In June, the employer promulgated a strict "no-solicitation rule," and the employer's secretary-treasurer threatened a pro-union employee with discharge because of his organizing activity. The employer later announced new employee benefits, some unprecedented in the company, and these were found by the Board to have an illegally coercive effect upon the employees. In July, the employer suspended a pro-union driver without justification for three days. In all these respects, the employer does not dispute the existence of substantial evidence to support the Board's decision that violations of Section 8(a)(1) of the NLRA occurred.
On June 3, 1976, Jimmy Roberson, the employer's secretary-treasurer, instructed Mark Shuford, the employer's director of terminals, tо investigate the possibility of truck route changes in connection with the employer's impending merger with Mississippi Freight Lines, another carrier, whose operations the employer had conducted in part since 1974 under ICC temporary authority. On June 22, in a memo marked "Confidential," Shuford notified the terminal supervisors, including Alan Patterson at the Louisville, Mississiрpi terminal, that the route changes would take effect on June 28, two days before the consummation of the merger. Shuford directed the Louisville supervisor "to make the necessary reduction in . . . work force to offset the reduction in the work load at Louisville." On June 25, Patterson discharged the five junior employees at Louisville, four of whom were known to him2 to be union sympathizers, and the fifth of whom was his son. He informed all five that a reduction in work load caused by the merger required their dismissal. Two of the four who had signed union cards inquired again in August regarding the reasons for their discharge and the possibility of rehire; Roberson informed them that they could not have their jobs back or transfer to a differеnt terminal.
On August 11, 1976, Preston Farr, the driver whom the employer had suspended in July without justification, filed an unfair labor charge alleging that Merchants had engaged in anti-union coercive activity. Thereafter, Virgil Rodgers, the senior employee discharged on June 25, filed an unfair labor charge, in connection with the June discharges and the employer's othеr allegedly coercive activities. The General Counsel filed a complaint on both charges.
The employer contends, and the Administrative Law Judge found, that the June 25 dismissals were justified to effect operating economies after Merchants adopted route changes that made its freight operation more efficient and enabled Merchants to handle its freight operations with fewer people. As further evidence of good faith, the Administrative Law Judge noted that the selection of discharged employees was based on seniority, and that the discharged employees were given two weeks' severance pay plus their accrued vacation benefits. The employer further argues that, when an opening for a full-time driver occurred at the Louisville terminal in December, 1976, after the NLRB complaints had been filed, the job was offered to and accepted by Virgil Rodgers, the senior employee discharged and a complainant in this action.
The NLRB reversed the Administrative Law Judge with respеct to the discharges for essentially two reasons. First, according to the Board, he failed "to give proper weight to the timing of the discharges during a (union) campaign already strenuously opposed" by the employer. Merchants Truck Line, Inc., 1977,
To counter the employer's argument of eсonomic justification, the Board urges that the timing of Merchants' route changes is suspicious, and that the route changes did not sufficiently reduce Merchants' workload to justify the layoffs. The Board argues that the merger was no more or less certain, and the route changes no more or less risky, in June, 1976 than at any other time after Merchants first took over Mississippi Freight Lines' operating authority in 1974. Although it acknowledges that the route changes afforded some benefits to the company, the Board insists that economic necessity did not compel the changes when effected, and that the timing is suspect under the circumstances of the company's anti-union campaign. The Board finally points to what it considers evidence of excessive overtime after June 25 at the Louisville terminal to demonstrate that the route changes did not eliminate the need for the employees that Merchants discharged.
II.
Our role in reviewing decisions of the National Labor Relations Board is limited: an NLRB decision must be sustained if supported by substantiаl evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 1951,
In determining whether the Board's conclusion that violations of 8(a)(3) occurred is supportable, it is of course crucial to bear in mind the nature of that conclusion. Evidence of an 8(a)(3) violation must be probative of discrimination, not merely of the employer's hostility towards unionism. Discharge is a traditional management prerogative; lack of justification is not to be lightly inferred:
Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids.
NLRB v. McGahey, 5 Cir. 1956,
The Gеneral Counsel has the burden of showing that, but for the employer's intention to discriminate against pro-union employees and thus to discourage union membership, these discharges would not have taken place. In this context, an employer's general anti-union hostility, and its pattern of anti-union activity, may be significant, when the employer's motives are ambiguous, but, without more, they do not supply the element of unlawful motive. NLRB v. Bogart Sportswear Mfg. Co., Inc., 5 Cir. 1973,
With these principles in mind, we turn to the record. As in many cases, some evidence exists of two motives, one lawful, one unlawful. NLRB v. Neuhoff Bros. Packers, Inc., 5 Cir. 1968,
In order to demonstrate discrimination on the facts of this case, the General Counsel must carry his burden of proving that at least one of the following factors was not justified by the employer's economic circumstances: the changes in truck routes; the timing of those changes; the layoff of any workers; or the layoff of these workers in particular.
As to three of these four elements, the General Counsel has not shown lack of justification: the route changes themselves are adequately justified by the savings and greater efficiency realized by Merchants in the hauling of freight between Memphis, Tennessee and Houston, Mississippi, and to and from Carthage, Mississippi. The Board points to costs that Merchants incurred in making the changes that may have made them a mixed blessing. A mixеd blessing, however, is a blessing nonetheless. "Management decisions are not subject to the second-guessing of the Board or the Courts unless it is shown by substantial evidence in the record as a whole that the decisions violate the Act." NLRB v. Materials Transportation Co., supra,
We also find no substantial evidence that, once having made the route changes, management was unjustified in laying off workers at the Louisville terminal. Although the average weekly overtime went up for the workers remaining at Louisville, the increased overtime costs per week were well under the wages that would have been required to retain one additional employee. The evidence that the work at Louisvillе was being done with unsatisfactory delay is vague, at best.
Finally, having made a decision to discharge employees, the employer would have been justified in discharging five workers according to seniority. Merchants' "Manual for Personnel" indicates that company policy is to lay off, when necessary, by seniority within the relevant skill field. The discharge of five junior pick-up and delivery drivers would accord with this policy if not discriminatorily motivated in any other respect. The Board has not shown any inconsistency between Merchants' selection of the five drivers discharged and its rational, facially neutral policy of discharge according to seniority. NLRB v. Georgia Rug Mill, 5 Cir. 1962,
However, we do find substantiаl evidence on the record as a whole that the timing of the route changes was as likely a result of the employer's anti-union campaign as it was reflective of the timing of Merchants' merger with Mississippi Freight. The employer offered nothing but conclusory evidence that the route changes could not have been effectuated аt any other time after 1974 with equal advantage. The employer's Secretary-Treasurer testified that the route changes could have been made under the temporary ICC authority; grants of authority to Merchants that appear in the record bear this out. Although some inconvenience would have resulted had the route changes beеn instituted and the merger fallen through, none appears of any consequence. The route changes themselves involved no additional capital investment.
Nor does it appear that the merger itself was any more or less certain in June, 1976 than it had been substantially earlier. In December, 1974, Merchants received an indefinite extensiоn of its temporary authority in order to complete the financial transactions necessary to consummate the merger. Additional extensions were granted in March and April, 1976. Conversely, although the necessary financial transactions were completed at about the time of the discharges, this did not automatically assure ICC apрroval of the route changes on a permanent basis. A new Certificate of Public Convenience and Necessity covering Mississippi Freight Line's old authority was not issued until September 17, 1976.
Given two competing inferences of equal plausibility, the Board is permitted to attach special significance to the timing and circumstances of the еmployer's anti-union campaign in choosing one. Sweeney & Co. v. NLRB, 5 Cir. 1971,
There is additional evidence that supports the Board's inference of anti-union motivation. None of the pro-union employees were permitted transfer to other jobs within the company nor was any assisted in finding work elsewhere. There is some evidence that the failure to transfer laid-off employees was inconsistent with past practice. More important, the record shows that one full-time pick-up and delivery drivеr was hired in September for the Tupelo, Mississippi terminal, only 80 miles from Louisville. This position was not offered to any discharged employee, although two employees inquired about the possibility of reinstatement in August. In fact, no discharged employee was reinstated until the senior employee discharged in June was reinstated in Louisville after the union lost its representation election and after the General Counsel had filed the complaints.
The substantiality of the evidence is not greatly mitigated by the layoff of one employee who had not supported the union, namely, the terminal manager's son. Where the central aim of a mass lay-off is to discourage union activity, the disсharge is unlawful, even though neutral or anti-union employees suffer in the process. NLRB v. Tesoro Petroleum Corp., 9 Cir. 1970,
Because substantial evidence on the record as a whole supports the Board's decision, we direct that its order in all respects be ENFORCED.
Notes
Merchants Truck Line, Inc
It appears from the record that Patterson's knowledge of the four drivers' pro-union sympathies antedated Roberson's June 3 letter to Shuford
We have previously said, "Only in the most rare and unusual cases will an appellate court conclude that a finding of fact made by the National Labor Relations Board is not supported by substantial evidence," Ward v. NLRB, 5 Cir. 1972,