NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GROENDYKE TRANSPORT, INC. and Ann Myers Bell d/b/a Bell Transport Company, Respondents

United States Court of Appeals for the Fifth Circuit1974-04-26No. No. 73-3327

493 F.2d 17

Summary · law.co

Holding. The court enforced the National Labor Relations Board's order in full, finding that the companies committed unfair labor practices and that the Board properly set aside the election and issued a bargaining order requiring the companies to bargain with the union.

The National Labor Relations Board found that two transport companies committed unfair labor practices by threatening to discharge employees who supported unionization, interrogating workers about their union sympathies, promising better working conditions while simultaneously threatening worse ones, and discriminating against union supporters through discharge and demotion. Although a union had initially secured authorization cards from a clear majority of employees, the companies' unlawful conduct undermined that support, resulting in a tied election vote. The Board determined that standard remedies would be insufficient to restore fair election conditions and therefore issued a bargaining order requiring the companies to negotiate with the union.

The companies challenged the Board's findings and remedial orders, primarily disputing the credibility of witness testimony and arguing that certain violations occurred after the election. The court rejected these arguments, finding that the Board's factual determinations were supported by substantial evidence and that credibility assessments properly belong to the administrative adjudicator, not the reviewing court. The court also determined that the pattern of violations, both before and after the election, fell within the category of cases justifying a bargaining order under established precedent.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether threatening discharge and interrogating employees about union support constitutes unfair labor practices
Whether offering improved conditions while threatening worse ones violates labor law
Whether discriminatory discharge and demotion of union adherents violates labor law
Whether a bargaining order is appropriate when unfair practices have dissipated union majority support

Procedural posture

The National Labor Relations Board issued findings of unfair labor practices and a bargaining order, which the respondent companies challenged in an enforcement proceeding before the court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

In this enforcement proceeding, the respondent companies challenge the National Labor Relations Board’s findings of unfair labor practices, its order setting aside the election, and its order to bargain with the intervening union upon request. 204 N.L.R.B. No. 27 (1973). We grant enforcement in full.

The Board, which adopted the opinion of the Administrative Law Judge, found the following section 8(a)(1) and (3) violations: threats to discharge union adherents, illegal interrogation of employees as to union support, offers of improved working conditions, threats of more unpleasant working conditions and withholding of benefits, and the discriminatory discharge of one leading union adherent and the demotion of another. The Board found that the union once held a clear majority of authorization cards, but that its strength had been dissipated by respondents’ conduct, so that the election resulted in a tie vote. Finally, the Board found that its traditional remedies would probably not restore the laboratory conditions necessary for a free and fair election and that a bargaining order was required to protect the employees’ statutory rights.

We are convinced that the Board’s findings of 8(a)(1) and (3) violations are supported by “substantial evidence on the record considered as a whole.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). The main thrust of the companies’ attack challenges the Administrative Law Judge’s explicit findings as to witness credibility. Credibility determinations, however, are for the administrative trier of facts and not for this Court. NLRB v. B. F. Diamond Construction Co., 410 F.2d 462 (5th Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969); NLRB v. May Aluminum, Inc., 398 F.2d 47 (5th Cir. 1968).

The acts themselves are clearly unfair labor practices. See, e. g., Chevron Oil Co. v. NLRB, 442 F.2d 1067 (5th Cir. 1971); NLRB v. Texas Industries, Inc., 426 F.2d 812 (5th Cir. 1970) ; NLRB v. Varo, Inc., 425 F.2d 293 (5th Cir. 1970). Respondents, however, contend that the Board was not warranted in setting aside the election, pointing out that the discriminatory discharge occurred after the election. The rest of the unfair labor practices, with the exception of one threat, occurred before the election and the Board was within its discretion in setting aside the election on the basis of that conduct.

Finally, the companies’ challenge to the propriety of the bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), must also fail. The unfair labor practices that occurred both before and after the election fall within the scope of the second category of cases for which Gissel authorized the issuance of bargaining orders. See, e. g., NLRB v. Orlando Paper Co., 480 F.2d 1200 (5th Cir. 1973); NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374 (5th Cir. 1973); NLRB v. WKRG-TV, Inc., 470 F.2d 1302 (5th Cir. 1973).

Enforced.