Before DUFFY, KNOCH and CASTLE, Circuit Judges.
Pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A., Section 151, et seq ., the National Labor Relations Board here seeks enforcement of its Order of January 21, 1959, against Transamerican Freight Lines, hereinafter called "Transamerican".
With one exception (discussed below) the Board adopted the findings of fact, conclusions of law and recommendations of the Trial Examiners' Intermediate Report and Recommended Order.
Transamerican was charged with (1) refusal to bargain collectively with Automotive Mechanics Lodge No. 510, International Association of Machinists, AFL-CIO, hereinafter called the "Union"; (2) discriminatory discharge of one employee and transfer of another employee for union activity; and (3) interrogation of employees respecting union activity.
Transamerican is a common carrier of interstate and local freight by truck. Its terminal and garage at Milwaukee, Wisconsin, are in the charge of District Manager Jerome L. Cleaveland. We are concerned only with the garage employees who handle maintenance of operating equipment.
The Trial Examiner found that Transamerican had increased the garage personnel in the Milwaukee garage from two employees to four, in 1956. Garage personnel increased country-wide in a program of renovation to conform to Interstate Commerce Commission directives. It was anticipated that $6 million in new equipment would be acquired (as it was, in fact) making future economies in maintenance possible, but in April, 1957, garage staffs in the entire system had risen from 121 in January, 1956, to a high of 140. They were cut back to 123 by April, 1958.
Frank Matteoni testified that when hired, late in 1956, he stated on his employment form that he held a withdrawal card from the Union, and that District Manager Cleaveland then told him the garage was not "union" and that Cleaveland would like to keep it that way. The drivers and dock men were covered by contracts with a teamsters' union.
The Trial Examiner found that about 3:00 or 3:30 P.M., May 21, 1957, District Manager Cleaveland received a letter from Union Representative Julius Drozewski in which Drozewski requested a conference to discuss a collective bargaining agreement, stating that a majority of the garage mechanics had authorized the Union to represent them.
About an hour later, Cleaveland discharged Matteoni, with the explanation that Cleaveland had orders to cut expenses. The Trial Examiner found that although reduction in force was being considered, Cleaveland had not, at that time, been instructed by his superiors to reduce his force in the Milwaukee garage. Evidence was adduced to show that decreasing profits dictated attempts to cut expenditures, that other garages of Transamerican operated with less help, that Cleaveland's action was economically motivated, and that Matteoni was the junior man in the garage.
From the coincidence of the time element and the fact that only Matteoni's union affiliation was then known to Cleaveland, the Trial Examiner inferred that the discharge was improperly motivated by Matteoni's union activity.
On May 24, 1957, Union Representative Drozewski called on Cleaveland and proffered signed membership cards of Matteoni, Melvin Olson, and James Getchell, which Cleaveland did not inspect. The Trial Examiner concluded that Cleaveland was not acting in good faith in declining to bargain when there was no doubt of majority representation. Transamerican argues that there were bona fide questions about the appropriate bargaining unit: as to whether it could properly include Frank Gage (who was subsequently found by the Trial Examiner to be a supervisor and not part of the unit) and whether the three other employees qualified as "mechanics".
On May 28th, Cleaveland transferred Getchell from the garage to the dock, as sertedly to reduce both garage expense (by reducing staff) and dock expense (by cutting dock overtime.) Getchell was then junior man in the garage, but, as to Transamerican as a whole, he was senior to Olson, having previously worked on the dock.
Olson testified that Garage Supervisor Gage said he wished Olson had discussed joining the Union with Gage first, and that Cleaveland told Olson he could still back out of the Union. Getchell testified that Gage told him he ...