Union Bus Lines

In the Matter of JOE AMBERSON, DOING BUSINESS UNDER THE STYLE AND TRADE NAME OF UNION BUS LINES and COLEMAN BENNETT, AN INDIVIDUAL - Case No. C-009.-Decided November 21, 19 2 Jurisdiction: bus transportation industry. - Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; questioning as to union activities ; threats of dismissal for union activities ; allegation of espionage dismissed. Discrimination: charges of, dismissed when discharge of employee found not discriminatory. Remedial Orders: ,cease and desist unfair labor practices ; post notices to this effect. Mr. Elmer Davis, for the Board. Mr. A. M. Felts, of Austin, Tex., and Mr. Sid Hardin, of Edinburg, Tex., for the respondent. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE 0 Upon an amended charge duly filed June 22, 1942, by Coleman Bennett, an individual, the National Labor Relations, Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated June 25, 1942, against Joe Amberson, doing business under the style and trade name of Union Bus Lines, San Antonio, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in un- fair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and Bennett. With respect to the unfair labor practices, the complaint alleged in substance: (a) that from on or about January 1, 1941, and there- after the respondent by his officers and agents (1) urged, persuaded, and warned his employees to refrain from becoming or remaining 45 N. L. R. B., No. 105. - 709 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, herein called the Union; (2) questioned his employees concerning membership in the Union, and threatened them with discharge or other reprisal if they aided said Union or became members thereof; (3) employed the services- of an investigator who engaged in surveillance of union activities among the employees and reported thereon to the respondent; (b) that on or about November 28, 1941, the respondent discharged Cole- man Bennett, employed as a driver on his bus line, and since that date has refused to reinstate the said Coleman Bennett, because of his union membership and activity; and (c) by'the aforesaid acts inter- fered with, 'restrained, and coerced employees in the exercise of the i ights guaranteed in Section 7 of the Act. On July 14, 1942, the respondent filed an answer in which he did not deny the allegations of the complaint pertaining to the interstate character of his business, but did deny that he had engaged in unfair labor practices as alleged therein. The answer alleged affirmatively that the respondent discharged Coleman Bennett for the reason that over a long period of time Bennett had violated many of the rules and regulations of the Union Bus Lines. Pursuant to notice, a hearing was held at San Antonio, Texas, on July 27 and 28, 1942, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the re- spondent were represented by counsel, and both participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated August 27, 1942, copies of which were duly served upon the parties. He found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He accordingly recommended that the respondent cease and desist from engaging in unfair labor practices and that he take certain affirmative action to effectuate the policies of the Act. On September 25, 1942, the respondent filed exceptions to the Intermediate Report. The respondent thereafter filed a brief and requested permission to present oral argument before the Board. On October 15, 1942, pursuant to notice served upon all the parties, a hearing for the purpose of oral argument was held before the Board at 'Washington, D. C. The respondent appeared by counsel, but Bennett did not appear. - UNION BUS LINES 711 The Board has considered the exceptions to the Intermediate Re- port and finds them to -have merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE-RESPONDENT Joe Amberson, doing business under the style and trade name of Union Bus Lines, is engaged in the business, of transporting pas- sengers and property within the State of Texas. The ,respondent's lines cover some 1100 miles and form connecting links in the trans- portation of passengers, property, and the United States Mails in interstate and foreign commerce to and from points outside the State of Texas and outside the United States. The gross revenue of the respondent during the year 1941 amounted to $228,784.05; for the first 6 months of 1942 such revenue amounted to $202,782.45. At the oral argument before the Board, counsel for the respondent admitted that the respondent was engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Although no labor organization is a party to this proceeding, the unfair labor practices alleged in the complaint relate to the Amalga- mated Association of Street, Electric Railway and Motor Coach Em- ployees of America, a labor organization affiliated with the American Federation of Labor, admitting to membership bus drivers of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Coleman Bennett was first employed by the respondent in,1939. In December 1940 he was laid off when the run he was then-on was dis- continued. He did not return to work for the respondent until March 1941. Bennett testified that in January 1941 he had a conversation with Amberson in which Amberson brought up the subject of unions and asked him what he thought of them; that Bennett replied in sub- stance that while he-was not familiar with unions generally, he under- stood it was "a man's privilege to join one"; that Amberson then stated that he would not tolerate a union and would not have any New York "kikes" dictating the terms on which he could work his drivers, and further that he would dismiss any man whom he found talking about a union or making an effort to organize one. Amberson could not recall this meeting with Bennett and denied that he ever made such 712, - DECISIONS OF NATIONAL LABOR RELATIONS BOARD a statement. We credit the testimony of Bennett, as did the Trial Examiner, and find that Amberson made the foregoing statement substantially as testified to by Bennett. During the latter part of October 1941, Bennett and Boyd Foster, another driver for Amberson, decided to organize a union among the drivers. ' On or about November 1, 1941, a letter bearing Foster's signature was mailed to J. W. Connally, an organizer for the Amalga- mated Association of Street, Electric Railway and Motor Coach Employees of America. Beginning about November 1, Bennett and Foster solicited other drivers in an effort to interest them in the proposed organization. . On or about November 6, 1941, Amberson laid off Bennett for two days and instructed him to report to the central office in San Antonio. Bennett testified that he reported and that in the course of a conversa- tion with Amberson the latter again brought up the subject of unions and stated that before he would have a union organized among his drivers he would sell out to the Greyhound Lines and recommend that the latter not hire any of his drivers. Although Amberson denied making this statement, he admitted having discussed unions with Bennett. The Trial Examiner credited Bennett's testimony, this time as supported by the testimony of Connally, the union organizer, that practically all the drivers he had contacted had told him they had been similarly advised. We credit Bennett's testimony and find that Amberson made this statement. Amberson admitted that he had interrogated some of his drivers concerning whether there was a union and whether they were members. We find that the respondent by the foregoing statements and ac- tivities engaged in a course of conduct whereby he interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed by Section 7 of the Act. No evidence was offered to substantiate that part of the complaint ,charging that the respondent had employed the services of an in- vestigator who had engaged in surveillance of union activities among the employees. B. The alleged discriminatory discharge On November 29, 1941, as Bennett was reporting to work, Robert Dean, a mechanic employed by the respondent, delivered a note from Amberson to Bennett stating that Bennett's services could no longer be used by the respondent. The respondent's answer alleged, and Amberson testified, that Bennett had been discharged as the, result of a series of rule violations. Some of the instances of rule violations cited by the respondent clearly are not supported by the record. On the other hand, there is persuasive evidence, in- the record to justify UNION BUS LINES 713 •a conclusion that Bennett from time to time had violated certain of the rules and regulations promulgated by the respondent. Among these rules is one which provides that when a passenger 'boards a bus without a ticket, the driver must take the fare, issue a receipt to the passenger from a prescribed pad, and turn in the stub and the cash to the San Antonio office. Amberson testified that over a period of'several months Bennett had failed to turn in all the cash "«nd the stubs, or if he had turned in the stubs, he had torn out the receipts (or "cut the fare") after completing his run instead of at the time when the passengers boarded the bus. Amberson testified further that he had laid off Bennett for a day or two on different occasions and otherwise had reprimanded him several times because of these practices. One such occasion was the aforementioned November 6, 1941, lay-off. At that time Bennett reported to San Antonio, as pre- viously indicated, and Amberson confronted him with two complaints, one, having to do with the upkeep of equipment and the other with the handling of fares. Bennett admitted that Amberson complained about his failure to turn in cash. Records of Bennett's daily reports show that from November 1 to 6, inclusive, he turned in only 15 cents to the respondent, whereas the average cash turned in by other drivers serving the same route was at least $2 or $3 per day. Bennett's excuse was that he had been turning in the cash to a ticket agent of the respondent in McAllen, Texas, pursuant to the instructions of said agent. The respondent objected to this practice because the ticket agent would then issue tickets for the cash and retain a 10 percent commission. Bennett was laid off again on November 15, 1941. According to Amberson's testimony, the cause of this lay-off was Bennett's failure to cut the cash fares at the time the passengers boarded his bus. Bennett did not deny that he had failed to cut cash fares properly. Bennett's daily reports show that his cash remittances were substantial from November 9 through 14, inclusive, but dropped down to 10 cents on November 15. Bennett reported to San Antonio immediately upon this latter lay- off, but found that Amberson had left for Edinburg, Texas. After following Amberson for a day or two and being unable to confer with him, Bennett returned to his route and told Dean, who had relieved him, to return his bus. This act of Bennett's was without authority since the respondent's rule regarding the return of a bus from a relief driver requires a note from Amberson to the relief driver. Amberson testified that he-stayed at his ranch a week or so following November 15 and did not know until he returned to San Antonio several days later that Bennett had gone back to work. The daily reports show that Bennett turned in substantial cash to the respondent from November 18 through November 26. On November 27 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 28, however, his last two days of employment, he turned in no cash. A further rule violation assigned by Amberson as contributing to 'Bennett's discharge was that for several months Bennett had pocketed small express charges for the delivery of ice cream to customers along his, route. Bennett admitted this practice as to a single customer, `contending that he understood from the driver preceding him that i his was customary. Amberson denied that there was any such prac- tice. Likewise, the driver who preceded Bennett on the route denied that`he had 'either retained such charges or told Bennett that it was customary to do so. Although the respondent was plainly hostile toward the Union, in view of the foregoing evidence establishing that Bennett had re- peatedly violated important rules of the respondent and in fact had been laid'off on two occasions during his last month of employment as a disciplinary measure 'for infractions of such rules, neither of which lay-off Bennett claimed to be discriminatory, we are not persuaded _that his discharge was discriiuin'atory. Accordingly, we find that the respondent has not discriminated in regard to the hire and tenure of employment of Coleman Bennett, and shall dismiss the complaint insofar as it so alleges. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and- tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, within the meaning of the Act, we shall order him to cease and 'desist therefrom and to take certain affirmative action `designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following,: CONCLUSIONS OF LAW 1. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2'(5) of the Act. UNION BUS LINES 715 2. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor prac- tices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated against Coleman Ben- nett in regard to hire or tenure of employment, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Joe Amberson, doing business under the style and trade name of Union Bus Lines, San Antonio, Texas, and his agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, re- straining, or coercing his employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post immediately in conspicuous places in and about the bus terminal in San Antonio, Texas, and in the bus drivers' quarters if any, and also' at his bus stations in Brownsville, Corpus Christi, Laredo. McAllen, Del Rio, and Van Horn,, Texas, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating that the respondent will not engage in the conduct from which he is ordered to cease and desist in paragraph 1 of this Order; and (b) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this order, what steps the respondent has taken to comply herewith; and IT TS rlTRTTTER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the respondent by discharging Coleman Bennett, engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. MR. GERARD D. REILLY took no part in the consideration, of the above Decision and Order.