National Labor Relations Board v. Cement Transport, Inc.

MILLER, Before CELEBREZZE and Judges, O’SULLIVAN, Circuit and Sen- Judge. ior Circuit CELEBREZZE, J., opin- delivered the Court, MILLER, J., ion of the in which joined.

O’SULLIVAN, J., part. dissented Judge. CELEBREZZE, Circuit The National Relations Board Labor petitions for enforcement of its Order of reported December at 200 and ac- adopted NLRB No. 122. In its Order companying Decision, the Board Judge’s conclu- Administrative Respondent violated section sion that 8(a)(1) 8(a)(3) and of the National La- Act.1 The Board ruled bor Relations “(a) regard 1. 29 U.S.C. 158: It shall be an unfair crimination in to hire tenure of em- § or practice employer (1) any employ- ployment labor for an in or term or condition of — with, restrain, employees membership encourage discourage terfere or coerce ment or rights guaranteed any organization.” in sec the exercise of the labor title; (3) by tion 157 of this ... improperly Ace Doran was reaffirmed this Court interro- Inc., Pony Trucking, gated employees union in N. L. R. B. v. their its sympathies representative elec- 486 Edgar Ray illegally and tion Transport’s operations are Cement organizational Thompson of his because Doran, quite en- similar to Ace those Transport ordered Cement activities. It tailing super- government-required both 8(a)(1) and desist section cease vision and additional controls. Cement 8(a)(3) violations, reinstate argues Transport that Ace Doran can be whole, and to him and make distinguished paid for its because Doran appropriate post notices. cargo (Respondent drivers’ insurance cargo), holds drivers liable stolen Respondent contends got percentage Doran of revenues independent contrac anwas (Re- from its owner-drivers’ backhauls employee, tor, it committed spondent to allows its owner-drivers by questioning its drivers no offense keep profit, haul for and but others leanings, and that their union behest), subjects them to recall at its properly Doran limited the routes its owner- and apart union activi from his misconduct (Respon- could on deliveries drivers take independent to turn first ties. We its dent leaves the choice roads to issue. contractor practice matter of has drivers as a but Transport, Inc., cement hauls Cement routing.) right Dor- to direct Compa- for the Kosmos Portland Cement may discipline procedures be more an’s Transport ny. owns the Cement While Respondent’s they than but exist.3 strict business, leases in its it trailers used Respondent differences of cites While Ed- from various individuals. tractors fact, differences of it shown has not gar Ray one lessor. such Transport principle. has a suf Cement single owner-driver, Thompson had a A single right to control owner- ficient its Respondent which lease with standard they finding to sustain drivers oper- provided would that the tractor be independent employees than rather super- Company’s direct under ated control, right It is to contractors. be devoted and “shall vision and control an em exercise, that determines not its [Company’s] exclusively business to ployee L. R. B. v. A. relationship, S. N. transportation often much and as 1964); 1, Co., F.2d Abell by reasonably required may such be 850, Steinberg, 182 F.2d N. L. R. B. business.” (5th Cir. Rigging Hauling and In Ace Doran deci of the Board’s review Our B., 462 F.2d 190 L. R. Co. N. ap- If evidence is substantial 1972), sion limited. held that this Court working supports con the Board’s record propriate cases owner-drivers by clusion, is bound this Court could be considered carriers for contract though chose the Board independent findings, even con- employees rather than conflicting fairly views” jurisdic- between “two tractors, had Board so that the employee-independent-contractor single “The of over owner-drivers.2 tion Insur v. United holding N. L. R. B. based on distinction. is behind our rationale 988, Co., 390 U.S. the control and ance controls’ both ‘additional (1968). findWe 19 L.Ed.2d 1083 supervision exercised pursuant and in this case done Board has so at 194. requirements.” F.2d ICC signs in on the Act, 2(3) a driver term Once “The 2. Under Section any list, haul load bound to lie is ‘employee’ maintained include . . . shall assigned assigned. load an having haul Refusal any status . . . individual suspension. three-day independent in a results § 29 U.S.C. contractor.” jurisdiction 152(3). over has no The Board independent contractors. 160(e). question discriminatory Ace on the basis of affirm its conclusion 8(a)(3) pri- motivation Doran4 under Section marily initially factual, to be determined objects Respondent Second, through the Board its administrative finding that it violated Sec the Board’s apparatus. Murray R. B. v. Ohio L. by coercively 8(a) (1) in tion of the Act Mfg. F.2d employees repre terrogating 1966) ; Ogle N. L. R. Protection B. election. The record shows sentative Service, Inc., F.2d campaign shortly after the 1971 1967) courts, . Board, “The not the organize began, Respondent’s drivers divining employ- task of delicate general manager Respondent’s asked generat- er’s motives from the confusion separate employees occa three on five spirited organizational activity ed when signed they Union sions whether comparable clashes with efforts to elimi- Edgar Thompson was cards and whether Young’s nate it.” B. Lou de organizing asking help ef their in his Basket, Inc., Market employees forts. did not caution the He (6th Cir.), grounds, remanded on other that no retaliation would flow L.Ed.2d respons their answers. The untruthful (1969). employees es of two of demonstrated question their natural fears about such proving The burden of an em ing. agree We circum that under the ployer’s discriminatory motive in dis manager’s general question stances, the charging employee an is on the General ing inherently inter constituted coercive Bangor Plastics, Counsel. L. B. v. N. R. right employees’ freely ference with the Inc., 1967); (6th 772, 392 F.2d 777 bargaining representative, to choose a B., Lawson Milk v. L. Co. N. R. 317 F.2d 8(a)(1) Act. See under Section of the 756, 1963). The Board 760 Packing L. U. N. R. B. v. 395 Gissell found met that the General Counsel had 575, 1918, L.Ed.2d 547 S. 85 23 S.Ct. that The record clear that burden. is Broadcasting (1969); Capital Corp. v. Respondent Thompson’s of was aware B., R. F.2d N. L. 479 329 spearheading organization the of 1973). in evidence the Substantial actively drivers since 1967 and that it supports record a whole considered as opposed campaign such efforts. One point. the on Board’s conclusion this 1969, Thompson in was aborted when Armstrong Circuit, Inc., L. R. B. Company discovered that had found 355, being many out how cards were Union Respondent argues Third, that turned Lo over Teamsters Louisville holding Compa- Board in erred that leak, Thomp cal another 89. To avoid ny Thompson fired because of his union son turned to Local for in the aid activities. campaign. inquiry July Thompson 15, 1971, Our is By whether substan col- had cards, signed tial in evidence as a whole record lected authorization supports substantially representing the Board’s conclusion that Re all the drivers spondent Thompson eligible because to vote. Between that time and petition January, his Union activities. R. B. See for an election in Ogle Service, Inc., 1972, Thompson by Protection 375 F.2d advised union was cert, 497, denied, Cir.), 389 U. officials the cards. To maintain to.hold 843, 84, interest, S. 19 L.Ed.2d S.Ct. union he to voice dis- continued (1967); Corp. wage Universal Camera with the satisfaction cf. B., company complain N. L. U.S. scale and to about (1951); practices July 95 L.Ed. 456 29 U.S.C. after 15. § Respondent’s single (1967) ; Regional owner drivers were N.L.R.B. Director’s “employees” Election, found in N.L. to> be two other No. and Direction of Case Decision Transport, Inc., 9-RC-9380, R.B. decisions. Cement Mar. Company an amounts to affirmative defense.® It On October charges conducting that, Thompson’s The Ad- in his .terminated lease. activi- ties, Judge Thompson found that Re- made numerous false and ministrative spondent’s Cummins, derogatory Compa- in a about the President statements ny itself, general manager, phone day termi- and the conversation after nating Thompson president. Thompson’s points lease, It told out that discharge prompted that was Chairman Miller dissented his finding Thompson’s “spreading poi- decision, that Union Board’s that testified, employer bribing un- son around.” Cummins accused his ion officials. long man for a I’ve known this good operator. a time. He has been considering contention, In question no that. There is good employer’s in that faith we note find but he There is no fault to there engaged protected firing employee in anybody really never worked for 8(a)(1) activity a a defense to § any length just I else for time. violation. companies feel far that like as as the sum, 8(a) (1) if it is In is violated § concerned, we are this area are in discharged employee that shown good probably company to work engaged protect- the time was at country any company in the but activity, employer it knew ed that way that and so I I don’t think he felt such, the basis was that go suggested to some- him alleged charge of miscon- was an act Maybe where else and work awhile. activity, duct in course things quite he would see that aren’t not, fact, employee thought they as he so bad at home guilty of National that misconduct. people I were and knew the truck- Burnup & Board Labor Relations ing if he industry around here and 21, 23, Sims, say him, me a word for I wanted (1964). 172, L.Ed.2d 1 good op- anybody he would tell was a engaged actively Since day Then, maybe if he some erator. discharge activity, protected in and his a differently it, if didn’t felt he alleged of prompted by acts miscon- was of feel we such a bunch that were organizing ef- of his duct in the course might again. liars, and talk thieves we remaining question forts, only the Tr. 424. guilty Thompson of mis- was whether Accepting credibility of assessments outrageous justify his to conduct so as Judge 6and the sidering Law con- Administrative discharge protected spite in of his activ- the rest evidence above and ities. record, of the find evi- we substantial support dence to the Board’s conclusion struggle to of a In the context Thompson because that was repulsive organize union, “the most a his union-related activities. of provided speech enjoys immunity falls it un Ordinarily end our review. a or reckless this would of deliberate short truth,” allegedly however, long Respondent, what offensive has asserted so activity. credibility normally tions, protected this Under 5. disturb tlie his We will not not view, the Board’s Board or the Administra an attack on assessments of the it is more discharge) Judge, (discriminatory an the de than tive Law who observed conclusion may Second, v. ana- meanor N.L.R.B. it be of the witnesses. Ste affirmative defense. Mfg. Co., 737, lyzed defense mun Cir. a affirmative 423 F.2d bona fide violation, 1970) prima ; (even assuming Ma facie N.L.R.B. v. Howell Automatic discharge 1077, legal right Co., company chine 454 F.2d had the improprieties). 1972). gross Be- because of him Board’s con- of the our affirmation cause of in can be treated assertion clusion, these not choose between we need may ways. First, it be consid- one of two legal into the or delve characterizations two argument reason” for ered an that “real they Thompson discharging raise. ac- issues was his offensive assuming directly that related to activities this was true. Even actions are Thompson falsehood, protected by the ut- the Act and not so told a egregious non-prej- of and considered indefensi terance such an isolated as to be justify Plant Work udicial remark could not charge. his ble. Linn v. United Guard 53, Yet, Respondent America, 114, that states of Local 383 U.S. ers ; going Kentucky (1966) Thompson’s 61, 657, De- L.Ed.2d 582 partment 1229, Int’l. Brother was the that broke N. L. B. Local “the straw R. v. Workers, back,” U.S. the incident which hood of Electrical the camel’s (1953); immediately provoked 464, 865, L.Ed. the termination 73 S.Ct. Washington reject implication Aluminum L. his lease. We N. B.R. v. Respondent’s argument employee Co., L. 9, 17, 82 S.Ct. that 370 U.S. Hugh asking (1962). H. official See also should fear a state Ed.2d 298 Company. B., public Corp. L. 414 F.2d about his R. information Wilson 1969) ; (3rd disloyalty or insubordination Crown We find no 1355-1356 B., Corp. L. an act. Petroleum v. N. Central 1970); argu- remaining Respondent’s two F. Power Tool R. B. Thor alleged ments concern an threat and 2d company that a official was accusation bribing the union. standard, we Under this witnesses stated Several advocacy Thompson’s find that cannot Thompson had told that he had them 65%,” a “return to which concerned helped company up “he build the higher Thompson compensation scheme going help tear it down.” If Company believed the had taken alleged Thompson’s statements were ac years ago, the drivers was indefensible tually they made and if amounted to an reckless, or if the nev even scheme 65% against Company, improper threat accept er existed. We Administra Company might justified been have Judge’s credibility tive determina discharging him. R. B. Local N. L. tion that believed 65% A at though effect, even scheme was once reading record, however, close re may a false have been belief. Simi made, “threat”, even if veals larly, Thompson’s we cannot find refer protected considered a should be state Respondent’s as a ence President Company’s witnesses stated ment. The egregious out “son-of-a-bitch” to be or said would “tear struggle. Linn of context in a labor See only get didn’t down” “if he Plant Guard United Workers coming what to him.” 60-61, America, Local U.S. at 383 anything find similar 657.7 Nor do we The thrust of the threat was securing improper Thompson’s employee a about to that of a strike-—-that appropriate copy the tariffs will take action if Com- intrastate forthcoming Kentucky Department pany Motor on the em- from the of is not testimony Transportation. ployee’s in a threat is at There is demands. Such labor-management copy requesting very of re- record in a heart of the that the expressed lationship. Thompson’s rates, Thompson told a official state the down,” copy “tearing Company to obtain a that he had been unable means of the according Company testimony of the Com- from and that he knew to the the Profanity disputes Tool F.2d 584 in has been ex Thor Power labor 1965), instance, employer many fired an in Falcon Plastics-Divi Cir. cused cases. N.L.R.B., griev employee participated Laboratories, in a after he had Inc. v. sion of B-D 1968) ; Hugh “horse’s ass” M. session and had muttered F.2d ance N.L.R.B., Corp. found the door. The Court F.2d as he walked out v. Wilson 1969) (3rd ; rather furnished excuse Crown Cen that this “remark 1355-1356 N.L.R.B., [employer’s] Corp. retalia F.2d reason for the than the tral Petroleum 1970). tory In N.L.R.B. v. F.2d at 587. action.” 1971). Corp., (7th Cir. 452 F.2d 205 pany have been to com- witnesses, would party, course, of re- plain Department Trans- The accused has of to S. the U. action, private Linn v. portation course to tort violations and the ICC Workers, regulations safety U.S. take United Plant Guard of and other steps employee’s 15 L.Ed.2d 582. similar rights. within an S.Ct. considering Thus, the entire Finding activity could have no which Thompson made his context in which Thompson’s justified separately comments, find to be we them cannot organization- charge in context of an malicious, insubordinate, or recklessly drive, Board’s conclu- we affirm al activity. protected The to unrelated his discharge Thompson’s was a that sion campaign Thompson’s a Company labels (1) 8(a)(3) and of violation of Section “personal found vendetta.” The Board en- Act. The Board’s order will be organize to effort them to one man’s be forced. to a if to come Even we were a union. de novo a trial Judge different conclusion after O’SULLIVAN, Circuit Senior disagree us, with we cannot (dissenting part). reviewing the Board’s assessment after my respectfully broth- I dissent Corp. entire Universal Camera record. command ers’ affirmance of the Board’s B., at employee that Johnson be reinstated Broadcasting Corp. Capital pay. full I believe with cannot back B., L. R. retain, required employer that an to payroll, a man who to or restore his story given a circulation argues wide Company Finally, employer union- had avoided that such discharge justified Thompson’s that “payoff” by a union ization another because, wrote Miller as Chairman year $20,000 to the President “to a dissent, Thompson a had circulated view of union. the relevant I share employer tally his rumor that baseless Chairman of NLRB. bribing at a union official has been year.” Thompson de $20,000 rate making any comment. Wit such nies charge Company nesses for Judge Law did. Administrative finding specific of fact made no Thompson actually started

whether

a rumor. majority accepted Ad- The Board’s America, UNITED STATES Judge’s explanation ministrative Plaintiff-Appellee, suspect reason to had Company-Local collaboration, since KACZMAREK, Defendant- Edward J. quickly had found out Appellant. number of union cards obtained No. 73-1426. organize when tried Appeals, United States Court of auspices. unit Local under 89’s Given Seventh Circuit. circumstance, agree that must we Argued Nov. Company-Local col- the rumor “totally lusion What- baseless.” Decided Jan. may specific allegations ever have assuming “bribe,” even been about them, they made charge among left to those matters best counter-charge, with eventual reso- representative lution at a vote B. v. Pekin

election. Ben See L. R.

Case Details

Case Name: National Labor Relations Board v. Cement Transport, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 4, 1974

Citation: 490 F.2d 1024

Docket Number: 73-1260

Court Abbreviation: 6th Cir.