The Baltimore Transit Co.

In the Matter of THE BALTIMORE TRANSIT COMPANY AND ITS AFFFILII- ATED COMPANIES, THE BALTIMORE COACH COMPANY, THE UNITED REALTY COMPANY OF BALTIMORE CITY, RESPONDENTS and AMALGAM- ATED ASSOCIATION OF STREET, ELECTRIC RAILWAY' AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1300 (AFL) Case No. C-2340.-Decided February 1, 1943 Jurisdiction : street-transportation industry. Unfair Labor Practices Interference, Restraint, and Coercion: denouncing nationally affiliated unions; surveillance of meetings*of union members ; interrogating employees and seek- ing information as* to their membership in the union ; threatening employees as to adverse consequences of union membership and activities upon their jobs; compelling employees to resign or refrain from joining the union and to refrain from engaging in union activities; encouraging employees to support the dominated union. Company-Dominated Union: union organized, sponsored, supported and controlled by employer prior to effective date of Act ; continuation thereof without material change following effective date of Act ; outgrowth of successor unions formed and controlled by employees active in prior company-dominated unions ; trans- fer of assets to successor union ; presence of and participation by company officials at meetings, absence of meetings of general membership ; acquiescence of union officials in views of management ; absence of true bargaining with representatives of management ; expulsion of union officials active in organizing outside union ; reward of officials in company-dominated union by promotion ; failure to deduct from wages of officials of company-dominated union for time-spent in union activities during regular working hours. Discrimination: Discharges, and one forced resignation, because of union member-, ship and activities ; indicia : shadowing of employees who were union, members for the purpose of establishing breaches of company rules ;' assignment of reasons for discharge not stressed in cases of violations of rules by employees not active in the affairs of the outside union; dismissals for minor' infractions of rules ; handling of discharges by higher company, officials contrary to usual practice; anti-union expressions of officials of respondent. ' Remedial Orders : dominated successor organization disestablished; employer ordered to withhold recognition from predecessor dominated organizations in the event of their revival; reinstatement and back pay awarded; restoration of dues checked off since assumption of jurisdiction by Board in present " proceec DECISION AND ORDER ' On September 23, 1942, the Trial Examiner issued his Intermediate Report in the above=entitled proceeding, finding that the respondents, 47 N L R. B., No 18. 109 110 DEC'ISIONS' OF NATIONAL LABOR RELATIONS BOARD The Baltimore Transit Company and The Baltimore Coach Com- pany,' had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and that they take certain affirmative action as set forth in the copy of the Intermediate Report annexed hereto. Thereafter; exceptions to the Intermediate Report and briefs in support of the exceptions were filed by the respondents and,the Independent. ' In their exceptions, the respondents contend in part that the Trial Examiner was biased and prejlgdiced in his conduct of the hearing. The Board has considered the; record and finds that there is no evi- dence of bias or prejudice on the part of the Trial Examiner and that the parties had a full and fair hearing on the issues involved.' The Board has considered all the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was, committed. The rulings are hereby affirmed. Upon request of the respondents and the Independent and pursuant to notice, a hearing was held before the Board at Washington, D. C., on January 7, 1943, for the purpose of oral argument. The respond- ents, the Union, and the Independent were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the respond- ents' and the Independent's exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions and additions noted below. 1. The Trial Examiner has made detailed findings as to the busi- ness operations of the respondents. The record shows, and we find, that the respondents furnish substantially all the public transporta- tion in and around Baltimore, Maryland; that among the passengers carried on the respondents' transportation system are substantial num- bers of employees going to and from their work in industrial plants in and around Baltimore; 3 that many of these industrial plants re- ceive large amounts of raw materials-from outside the State of Mary- land and ship their finished. products, which now include goods essential to the nation's war effort, to destinations outside the State; and that the uninterrupted and undiminished operation of these in- dustrial plants, and the consequent flow of interstate shipments to and from these plants, are dependent upon the transportation facilities 'On motion of counsel for the Board , the Trial Examiner during the hearing dismissed the complaint as to the respondent, the United Realty Company of Baltimore City 2 The exceptions to the Trial Examiner's conduct of the hearing are set forth and considered at length in Appendix A to this Decision and Order ' The Trial Examiner has found that 1 of the respondents ' bus lines daily carries approxi- mately 7,500 employees of the Glenn L Martin plant . The record shows, and we find, that this bus line of the respondents daily carries approximately 2,700• employees of the Glenn L. Martin plant THD BALTIMORE TRANSIT COMPANY 111 provided by the respondents. We therefore find, as did the Trial Examiner, that the unfair labor practices in which the respondents have engaged and are engaging affect commerce, 'within the meaning of Section 2 (6) and (7) of the Act. 2. The Trial Examiner has found that, in a ballot' conducted by the B. T. E.A. on July 12, 1937, to determine whether to retain the B. T. E. A. or to form the Independent; 2,540 votes were cast 'for forming the Independent, 2 votes were cast against forming the Independent, and 184 votes were blank. The record shows that the figures thus found by the Trial Examiner refer to another ballot conducted by the Independent in June 1942, just prior to the hearing held herein. The Trial Examiner's finding as to the number of votes cast in the balloting on July 12, 1937, is therefore deleted. 3. With respect to the Credit Union formed among the respondents' employees in 1935, the Trial Examiner has found, in part, that it was a continuation of a previously existing company-benefit plan, and that loans by the Credit Union to employees were subject to the respond- ents' approval. We have examined the record, and we find that it is not sufficient to support these findings of the Trial Examiner. The findings are hereby reversed. The record does show, however, and we find, that the respondents had, and on at least one occasion exer- cised,, such control- over the Credit Union that loans to employees were denied in order to discourage their joining or assisting affiliated labor organizations, and that the respondents thereby interfered with, restrained, and coerced their employees' in the exercise of the rights guaranteed in Section 7 of the Act. 4. The Trial Examiner has found that the respondents engaged in unfair labor practices by dominating and interfering with the forma- tion and administration of the U. R. A., the B. T. E. A., and the Independent, and by contributing financial and other support to them. Although the respon'dents' activities with respect to the U. R. A. prior to July 5, 1935, the effective date of the Act, are material and relevant in any appraisal of their subsequent activities with respect to the B. T. E. A. and the Independent, they are not unfair labor practices within the meaning of the Act. We therefore find that the respondents dominated and interfered with the administration of, and contributed support to, the U. R. A. and the B. T. E. A. subse- quent to July 5, 1935, and-that the respondents dominated and inter- fered with the formation of the Independent in 1937 and its. administration thereafter and contributed support to' it, thereby interfering with, restraining, and coercing their employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. By this course ' See the findings at pages 47-48 of the Intermediate Report with respect to the applical lion for a loan from the Credit Union made by O'Connor , a bus driver , in February 1942. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of conduct, the respondents engaged in unfair labor practices, within the meaning of Section 8 (1) and (2) of the Act: 5. The Trial Examiner has. found, and we, agree that, the record supports the finding, that in March, and September 1941; Transporta- tion Manager Duvall, Line Superintendent Woolston, and Chief Supervisor Soth engaged in surveillance ' of union organizing meet- ings held by employees of, the respondents. We find that, by this surveillance of these, meetings by Duvall, Woolston, and Soth, the respondents interfered with, restrained, and coerced their,employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged 'in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The Trial Examiner has found that the respondents on March 19, 1942, discriminatorily discharged Joseph Al. Flaherty because of his :union activities. The respondents contend, and there is some indication in the record, that Flaherty was not discharged but re- signed from his position on March 19, 1942. We do, not deem it -necessary to resolve this conflict in the testimony, since the record shows, in our opinion, that if Flaherty did resign his resignation was compelled by the respondents' deliberate and planned,accumulation of briefs against him, following the same technique used by them in the other cases of discrimination found by the Trial Examiner. We therefore find that Flaherty's employment with the respondents was terminated on March 19, 1942, either by his discharge or by his forced resignation, because of his union activities..' By thus discriminating in regard to Flaherty's hire and tenure of employment, the respondents discouraged membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8 (3) and (1) of the Act. 7. The Trial Examiner'has recommended, in part, that the respond- ents ;reimburse their employees for any fees and dues checked off from their wages and paid to, the Independent since June 2, 1942, and that the respondents make the discriminatorily discharged employees whole by paying to each of them a sum equal to the amount which he would normally have earned as wages from the date of his discrim- inatory discharge to, the date, of the respondents' offer 'of• reinstate- ment, less his net earnings during that period. The respondents contend that, because of the, dismissal by the Board's Regional: Director on September 29, 1937, for "lack of jurisdiction," of a charge previously filed, against the respondents under the Act,5 the Board is now without jurisdiction to make any findings of unfair, labor practices on the part of the respondents, at least until the prior "adjudication" is, reversed. We are of the opinion and we find, as did the Trial Examiner, that the dismissal of the chaige filed--in---1937- On appeal from ' the Regional Director 's ruling, the Board on April 29 , 1938 , sustained the dismissal. THE BALTIMORE, TRANSIT COMPANY 113 is not'res, judicata of the question of the applicability of the Act to^ the respondents." However, in, the exercise of our administrative discretion as to the remedy most' appropriate in the circumstances, we find that it will best effectuate the policies of the Act if the pro- visions in our Order, that the respondents reimburse employees for dues checked off from their wages on behalf of the Independent and make whole the discriminatorily discharged employees for any loss of earnings on their part, are limited to the period since June 2, 1942, the date on which the complaint herein was issued, since upon the issuance of the complaint the respondents were placed on notice that' the Board's prior administrative determination was no longer in effect.' ORDER Upon the entire record in the case, and pursuant, to Section 10 ^ (c) of the National Labor Relations Act, the National Labor Relations Board hereby -orders that the respondents, The Baltimore Transit Company and The Baltimore Coach Company, Baltimore, Maryland, and their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1300, affiliated with the A. F. of L., International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, affiliated with the A. F. of L., or any other labor organization of their employees, by discharging or refusing to reinstate any of their employees, or' in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (b) Dominating or interfering with the administration, of The Independent Union of the Transit Employees of Baltimore City or with the formation or administration of any other labor organization 9 Cf • Federal Communications Commission v. Pottsville Broadcasting Co , 309 U S. 134; Jacobsen v N L R B, 120 F (2d) 96 (C C. A 3), remanding Matter of Protective Motor Service Company, a corporation and Twenty-five Employees, 40 N L R. B 967, and 21 N L R B. 552 Since Theodore J: Peacock, one of the discriminatorily discharged employees, was in- ducted into the armed forces of the United States on May 22, 1942, we shall not direct the respondents to make him whole for loss of earnings, except for any period during which the respondents fail or refuse to reinstate him following his timely application for reinstate- ment after his discharge from the armed forces, in accordance with the provisions of our Order. The Union contends that Peacock would not have been inducted into the armed forces, if he had not been discriminatorily discharged and if the respondents had requested occupational deferment for him as they have for other similar employees, and that the respondents should therefore be directed to give back pay to Peacock for the period until his discharge from the armed forces of until a decision by the military authorities not to release Peacock for, the pui pose, of resuming his civilian work Ave are of the opinion that the connection between Peacock's discriminatory discharge and his induction into the armed forces is speculative and remote, and we therefore deem it unnecessary to consider whether we should in this instance depart from the form of order usual in such cases. 513024-43-vol. 47-8 114 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD of their employees, and from contributing financial or other support to The independent Union of the Transit Employees of Baltimore City or to any other labor organization of their employees; (c) RecognizingThe Independent Union of the Transit Employees of Baltimore City as the representative of any of their employees for the purpose of dealing with the respondents concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (d) Giving effect to the agreement of January 18, 1942, between the respondents and The Independent Union of the Transit Em- ployees of Baltimore City, or to any extension, renewal, or modifica- tion thereof, or to any other contract or agreement between the respondents and The Independent Union of the Transit Employees of Baltimore City which may now be in force; (e) In any'other manner interfering with, restraining, or coercing their` employees in the exercise of the right to self-organization, to form, join, 'or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed 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) Withdraw all recognition from and completely disestablish The Independent Union of the Transit Employees of Baltimore City, and withhold all recognition from United Railway Employees' Asso- ciation of Baltimore and Baltimore Transit Employees' Association in the event that either of these two organizations at any time here- after resumes functioning, as the representative of any of their em- ployees for the purpose of dealing with the respondents concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; (b) Reimburse all employees, whose fees and dues in the Inde- pendent were checked off, for the amounts thus deducted from their wages since June 2, 1942; (c) Offer to George May, George Silberzahn, Arthur W. Rawlings, Clayton G. Perry, Frank Pennington, Carroll Lee Strupp, Joseph M. Flaherty, John McHenry, and Charles L. Mueller immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges ; (d) Make whole George May, George Silberzahn, Arthur W. Raw- lings, Clayton G. Perry, Frank Pennington, Carroll Lee Strupp, Joseph M. Flaherty, John McHenry, and Charles L. Mueller, for any loss of pay they have suffered by reason of the respondent's discrim- THE BALTIMORE' TRANSIT COMPANY 115 ination against them by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from June 2, 1942, to the date of the respondents' offer of reinstate- ment, less his net earnings during such period; (e) Upon application by Theodore J. Peacock within forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a sub- stantially equivalent position, without prejudice to his seniority or other rights` and privileges; (f) Make whole Theodore J. Peacock for any loss of pay he may suffer by reason of the respondents' discrimination against him, by payment to him of a sum of money equal to the amount which -he normally would have earned as wages during the period from a date five (5) days after Peacock's timely application for reinstatement, if any, to the date of the offer of'reinstatement by the respondents, less his net earnings during that period; (g) Post immediately in conspicuous places throughout their trans- portation system in and around Baltimore, Maryland, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating : (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that the respondents will take the affirmative action set forth iii paragraphs 2 (a), (b), (c), (d, (e), and (f) of this Order; and (3) that the respondents' employees are free to become or remain mem- bers of Amalgamated Association, of, Street, Electric Railway and Motor Coach Employees of America, Division 1300, affiliated with the A. F. of L., or International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the A. F. of L., and that the respondents will not discriminate against any em- ployee because of membership in or activity on behalf of those organizations ; (h), Notify the Regional Director for the Fifth Region in writing, within ten ,(10) days from-the date of this Order, what steps the respondents have taken to comply herewith. APPENDIX A The Board finds no merit in the exceptions taken by the respondents to the rulings and conduct of the Trial Examiner. Because of the emphasis placed on this issue by the respondents, it has been deemed appropriate to analyze the exceptions in detail. Exceptions 168, 169, 190, 191: merely allege prejudice and bias gen- erally, without reference to any specific grounds. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exception 170: criticizes the admission of a note written to Mr_ Perry by Dr. Pass. Since Dr. Pass was a resident of Baltimore at the time of the hearing, his presence could have been secured by the respondents, through subpoena, for cross-examination as to the con- tents of the note, which was properly received in evidence. Exception 171: criticizes the admission of a copy of a notice posted on the respondents' bulletin board, which copy had been made by Perry's daughter. The copy is clearly, admissible. Exception M: relates to the Trial Examiner's rejection of Respond- ents' Exhibit 3, a copy of the deportment record of Pennington. How- ever, the original, of which Respondents' Exhibit 3 was a copy, was, actually admitted in evidence as Respondents' Exhibit 9. Exception 173: criticizes action of the Trial Examiner in permitting qualifying questions by the Board's attorneys in connection with proposed exhibits, and comment on the exhibits before they were received. It is difficult to ascertain the specific nature of the respond- ents' contentions in this exception. However, with regard to the practice of commenting on documents not received in evidence in con- nection with qualifying questions, the respondents' attorney pursued the same practice as, for, example, at p. 3351 of the, record, when he read from the respondents', records in questioning the witness, Rawlings. Exception 174: relates to the alleged refusal of the Trial Examiner to allow the witness, Perry, to testify whether he was employed by the Amalgamated Union before or after his discharge. The question was, in fact, allowed at p. 2262 lines 7-13. As to questions addressed to Perry concerning, the "Plan," this ques- tion was also actually allowed, as is shown by the following testimony : Q. Your method, your idea of improving those conditions, was by bringing in the Amalgamated Association, was it not? Mr. WHEAT'LEY. Object. Trial Examiner WHITTEMORE. No ; I will permit the witness to answer this glestion. A. Yes. Objection to the following question was sustained (p. 2136, lines 18-25) Q. Now, on March 6th of this year, when you were discharged by Mr. Duval, you felt that you had achieved a great victory, .didn't you?, Mr. SHAwE. Oh, I object to the form of the question. Trial Examiner WHIrFErioRE. I sustain the objection. THE BALTIMORE T TRANSIT COMPANY 117 But objection to the following question was overruled (213) Q. (By Mr. Colgan.) When you were discharged by Mr. Duval on' March 6, 1942, you were very well satisfied with his action, were you not? Mr. WHEATLEY. Objected to, Mr. Examiner. • Trial Examiner WHITTEMORE. I will permit the witness to answer. A. I was very much dissatisfied, as most anyone would be, after 23 years of service with the company and then be,fired. Objection to the following question was sustained (p. 2138, lines 6-12) Q. Who was the first man you looked for and called up sifter Mr. Duval discharged you? * * * * * A. The first man' I called upon was Michael Garvey. Q. Exactly. What did you say to Mr. Garvey? Mr. SHAWE. Don't answer that. I object, Mr. Examiner, as to what this man said to his own union representative. Trial Examiner WHITTEMORE. What is your purpose, Senator, in going into this? Mr. COLGAN. This is preliminary, sir. It is preliminary. Trial Examiner 'VVHITTEMORE. Preliminary'to what? Mr. COLGAN. Other questions. Trial Examiner WHITrEMoRE. Well, unless you can give me some good reason for examining, him upon what he may have said to his own union representative, and giving the ground only, that it will be followed by other questions, I will sustain the objection. The ruling, even-if it had been erroneous, was not prejudicial and was cured by the following testimony (p. 2141, lines 1-9) : Q. (By Mr. Colgan.) Did.you tell Mr. Garvey what had hap- pened to you? A. Yes ; I did. , • Q. And Mr. Garvey had told you,you had done a good job, didn't he? Mr. WHEATLEY. Object. Trial Examiner WHITTEMORE. Oh, I will permit him to answer. A. Mr. Garvey did not. , Exception 175: relates to the 'alleged refusal to allow Strupp to answer similar questions. The witness was actually permitted to answer these questions, as is shown by the testimony at p. 2476, par- ticularly at lines 4-11. ' Exception 176: concerns the Trial Examiner's refusal to permit the witness, McHenry, to testify to certain conversations'with representa- 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives of the Amalgamated. The questions, objections to which were sustained, were extremely remote from the issues and the ruling was eminently correct, as is shown by the following testimony and ques- tions at pp. 2579 and 2584, line 14 and following : Q. (By Mr. Colgan.) Whom did you talk to about joining it [the Amalgamated ] before you joined? Mr. WnmATLEY. Same objection. Trial Examiner WVHIrrEMORE . The objection is sustained. Q. (By Mr. Colgan .) Did Mr. Keeler, of Philadelphia, talk to you about it? Trial Examiner WHITPEMORE. The objection is sustained. Q. (By Mr. Colgan.) Did anybody in Washington talk to you about it? ' Trial Examiner WHITTEMORE. Sustained. Trial Examiner, Whittemore -then asked : What is the purpose, Senator, may I ask? Mr. COLGAN . To obtain , sir, all of the evidence -and all of the light possible for the purpose of showing why without reason, provocation or complaint the Amalgamated Association came into Baltimore for the purpose of disrupting this independent union and paralyzing the operations of the Baltimore Transit Company. Trial Examiner WlmirrEMORE. Well-I will sustain the objection. Exception 177: involves the sustaining of objections to questions addressed to the witness, Flaherty, as to matters discussed with Duvall. The questions, objections to which were sustained , were as follows (at p. 2732, line 22 and following ' and p. 2733, line 1 and following)': Q. And when you told Mr. Shawe, the attorney here for the United States Government, that that was'all you can think of, you were mistaken about that , weren't you? Mr.' WHEATLEY. Object. Trial Examiner WHITTEMORE . Oh, I will permit the witness to answer. A.. What do you mean; about what? Q. On the witness stand a while ago, when you told the attorney here for the Government that that was all Mr. Duvall said to you, what you told him? Trial Examiner WHIITEMORE. I beg your pardon . I will sus- tain the objection, if that is the question . I understand it, if that was all he recalled Mr. Duval stating. Now , if youwant to frame the question the way I understood it to be framed THE BALTIMORE TRANSIT COMPANY 119 Mr. COLGAN. We will take an exception, sir, and I will ask another question. It thus appears that the Trial Examiner's ruling was only as to the form of the question, which respondents' counsel declined-to change. Moreover, the witness had already testified, at p. 2732, lines 19-21, as follows : Q. So he did talk to you about a lot of things besides your union activities; didn't he? A. Yes, sir. The question objected to was therefore merely repetitive. Exception 179:'relates to the Trial Examiner's alleged overruling of the respondents' objections to questions as to violations committed by other employees. The respondents' objections were actually, sus- tained. At p. 3336 an objection to the question as to whether drivers customarily smoked was sustained. An objection to the question as to whether the witness-had observed, other drivers smoking, at the end of the line was overruled. The latter question was clearly material on the issue of the alleged discriminatory treatment. Exception 180: involves the Trial Examiner's action in permitting the Board's attorney to comment on an alleged letter of recommenda- tion of Rawlings. The testimony as to the alleged letter was actually stricken, to- gether with the entire testimony regarding it, as is shown by the record at pp. 3343, 3344, 3345, and 3346. Exception 181: concerns.the sustaining of objections to questions addressed by respondents' counsel to Rawlings designed to show that the witness was guilty of violations of the rules, and to statements by the Trial Examiner that the respondents' counsel had not proven the violations.: The correctness of the ruling is shown by the following testimony at pp. 3375 and 3376, especially line 23: Q. (By Mr. Colgan.) Mr. Rawlings, I only asked you about violations and reprimands that occurred prior to March 17th, you understand that, don't you, 1941? You understand, don't you ? - • - Mr. WHEATLEY. Object to the form, violations that occurred. Trial Examiner WHIrrEMORE. I will permit the witness, to answer. It is-his allegation that they occurred. Mr. COLGAN. I know, Mr. Examiner, but please, sir Trial Examiner WHiTTEMonE. It doesn't merely prove Mr. COLGAN. Please, sir, haven't we got the right, if we can, to prove by`testimony of this witness, in connection with questions, that he has been guilty of repeated violations of-rules, and-why should anyone have the right to object to that? 120 - DECISIONS OF NATIONAL LABOR REEL ATIONS, BOARD Y Q. (By Mr. Colgan.) Mr. Woolf or, since you have,been,super- intendent, have you ever warned or threatened, or in anywise interfered with or attempted to interfere with the, employees because ,they were members of or were active on behalf of any outside labor organization? Mr. WIIEATLEY. Object. Trial Examiner WHITTEi roRE. Let me pose this question, since it is quite likely that it will come up again. Do you seriously maintain that even if the witness should deny that he, is interfered with, even in the legal definition of the term, or its general interpre- ' tation, that that would be binding, that the Board could not make findings that he had, 'if the facts and the evidence showed he had? Trial Examiner WHITTEMORE, Well-I will permit the witness to answer, the question. I overruled your objection. A. No. sir. Mr.'WHEATLEY. You haven't proved it. Mr. COLGAN. I am attempting to prove it. Trial Examiner WIIITrEMoRE. Well, you are not proving it, Senator., [This was true-Colgan was referring to reprimands for violations as proof of the violations; the Trial Examiner's remark was helpful to counsel in pointing this out.] Mr. COLGAN. I may not be able to prove it, I am' merely trying to. Haven't I aright to try? Trial Examiner WHITrEMORE. I don't know, whether you under- stand yet Mr. COLGAN. Maybe I am dense; I don't pretend to be brilliant- ,Trial Examiner WHITTEMORE. Well, I don't understand what this outburst is for. I ruled in your favor and told, you ,to go ahead. Exception 182: involves ,the granting of permission to the Board's attorneys to inspect memoranda used by ' respondents'' witnesses' to refresh their recollection and-the granting of permission to cross- examine witnesses on such memorahda, not offered in evidence. This right is fundamental and well recognized. ''Exception 183: relates to the Trial Examiner's allegedly `biased treatment of the witness, Woolford, at p. 5321. The incident referred to by respondents is as follows (5319=5321) THE BALTIMORE TRANSIT COMPANY 121 The Trial Examiner made the statement not, as respondents ' counsel stated, in questioning respondents ' counsel, but in questioning the Board's counsel , and the statement was in explanation of his overruling the Board's objection to the question. Exception 18x: relates to the striking out of testimony of the wit- ness, Woolston , to- the effect that Mueller came in angry and swearing. The testimony was actually received in two places , once in answer to a question by the Boards counsel and'once in answer to a question by the Trial Examiner himself. In view of the unfairness of the criticism advanced by respondents on this point , the testimony is set forth at length as it appears at p. 5407, especially line 24; p. 5408 , line 5 'et seq; p. 5412, line 6 et seq; p. 5413, line 1 et seq; and pp. 5522L5523: Q. * * * Well, what took place on that occasion, do you recall? A. Well) I Vecall Mr. Martin having sent for Mr. Mueller be- cause of some briefs, violations , I don't recall just how many. There were several, I am sure; and it seemed that he came in the office very angry, and he did some swearing. Mr. SHAWE. I move that that be stricken , Mr. Examiner. Mr. COLGAN. Why do you want it stricken, Mr. Lawyer. Mr. SI wE. Counsel for the Baltimore Transit Company, I want it stricken because I would like to have the conversation and not this witness' biased conclusion. Mr. COWAN. He said he came in swearing. He can go, on to tell what was said. Mr. SHAWE. Let us have the conversation. Mr. COLGAN. I have no objection , sir, but you don't have to give me- orders, sir. Trial Examiner WHITrEMORE . He said he came in very angry and did some swearing . That may be stricken. [Obviously, at any rate at the very commencement of the testimony as to this conversation , the words said, and not the general impression of the, witness,: should'be given. The ruling was proper.] , Mr. COLGAN. Did you really strike that, Mr. Examiner, that he came in swearing? Trial Examiner WmrrmueRE. I did, yes. I want to hear this witness' testimony as to what was said. Thereafter, respondents' counsel refused to ask witness any more questions, although the Trial Examiner expressly invited him to do so. Trial Examiner WHITrEMORE. All, right. That objection is overruled. Start all over again and have him testify as to what was said. 122 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD Mr. COLGAN. I don't care to ask him any more questions, sir, because it is already in the record. Trial Examiner WHITIEMORE. Well, all right. Mr. COLGAN. I am satisfied with that, sir. I am through with Mr. Woolston and I am very much obliged to you, Mr. Woolston. I can not examine the witness, sir, under such circumstances and under such limitations. On the ensuing cross-examination , Mr. Shawe, the Board's counsel, asked the witness about the conversation : Q. * * * Now, I will ask you about this conversation that counsel apparently didn't want * * A. Mr. Martin , as -I said, had sent for Mr. Mueller. It was obvious when he walked in the door , he was angry. (After objection by Mr. Colgan) : . ` Trial Examiner WHITrEMORE . All right. Now, Mr. Witness, I want you to tell us exactly what happened . Now, I assure you of this, when you are all through telling , exactly what was said, I will ask you the question ; since you twice 'said lie was angry- I will ask you the question what made you -think he was angry, but I want you to give me that conversation of what anyone in there, yourself , Mueller, or whomsoever else was in there, said. I just want you to state what was said and by whom. ' A. Well, Mr. Martin confronted Mr. Mueller with the viola- tions, and his remark was, "Is this a God damn purge" or some- thing of that sort. And Mr. Martin said, "No, it is not a purge, it is just a case we want to get you straight." And the exact words I can't give , but then there was some more swearing ; something everybody around here , every God damn soul' around here, something, about that purge, or something between this purge, something 'about that purge-there wasn't a lot said . Just like a flash, it'was all over. * * * * * * Trial Examiner, WairrEMoRE. Now, how do you know'-he was angry? A.-It was his appearance , which was very obvious , and the fact of'what he told the dispatcher . That was not a customary thing, when a man had to see Mr. Martin ; and yet to say "I will only be in there a second," or "Watch me come out," or something like that. Again at p. 5522, on re-direct examination , the Trial Examiner asked Mr. Colgan : "If you want to ask him whether or not he was angry, and go over that again-lie has already testified on the point- I have no objection to your asking him." THE' BALTIMORE TRANSIT COMPANY, 123, Mr. CoLGAN. We were forbidden, sir Trial Examiner WHITTEMORE. The record shows exactly what happened. Q. (By Mr. Colgan.) Now, what was his attitude when he came - in the office? Trial Examiner WHITTEMORE (after objection) : I will permit witness to answer. A. Well I was judging from his appearance, because, as a rule, he is a very pleasant fellow, and you could tell-that he wasn't feeling in that mood. Exceptions 18.: relates to respondents' exception to the comment of the Trial Examiner that Woolston had done nothing after seeing Rawlings commit two violatioiis within 4 minutes. That the Trial 'Examiner's statement clearly meant that Woolston had not spoken to Rawlings at the time, and that the respondents' exception states a misleading version of the incident, is shown from the following testi- mony at pp. 5429-33, 5556, 5562, line 15 and following, which indi- cates that the witness observed McHenry committing dangerous viola- tions, but failed to speak to him immediately about them. (The wit- ness' testimony contained so many inconsistencies that questioning by the Trial Examiner to bring out the real facts was eminently proper). Trial Examiner WHITTEMORE. All right. On October 31st, at 11: 12-rather, at 11: 09 in the morning, you yourself, according to the brief that you turned in, saw him fail to stop at a railroad crossing. . A. That is right. Trial Examiner WHITTEMORE. Four nniuites later, 11: 13, he failed to stop at another railroad crossing? A. That is right. Trial Examiner WI-IITTEMORE. What did you do about that? o A. I turned those over to Mr. Badart, because the case Trial Examiner,WHITTEMORE. YOU mean, within four min- utes he failed to stop. at two railroad crossings and you didn't do'anything about it? The foregoing indicates clearly that the Trial Examiner meant doing something about it at the time. Respondents' misapprehension as to the meaning of the remark is still more difficult to understand in view of the following explanation of the Trial Examiner at p. 5563, line 24, in denying a,rrmotion to strike out the question for bias: I assure you, counsel, that I have no bias against the respondent. I have tried to find out from the superintendent here who has given certain testimony, as to why, when he himself finds a man 124 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD within 4 minutes failing to stop at 2 railroad crossings, which he says endangers the public, he does nothing about it. Now, as a member of the public, I think I certainly should ask this ques- tion whether Tam in this hearing or not.' Exceptions 186 and 187: refer to comment by the Trial Examiner on the testimony of the witness, Field. - The record shows the fol- lowing questions and answers at p. 5569, line '4 and following; p. 5570, line 9 and following; and p. 5570, line 17 and following : Q. Now, what conversation, if any, did you have, with Mr. McHenry or did he have with you? Tell us what took place from the time he got on the bus until he got off. A. Well, just offhand, I can't remember now just which one did start the conversation. * * * Trial Examiner Wan=MORE. Well, Senator, may I raise a point right now? I don't, see the necessity, in view of the witness saying that he can't remember whether he started the conversa- tion or McHenry did, what possible relevancy could it have? Trial Examiner WHITrEMORE. From the witness' opening statement that he doesn't remember whether he started it,or Mc- Henry did, I certainly don't see where any responsibility should be placed on McHenry. After argument by counsel, the Trial Examiner said : Trial Examiner WHITTEMORE'. Well, if you still think it is im- portant, after' the witness' testimony, go ahead. Since the respondents were apparently attempting to prove the viola- tion of talking to a passenger while on duty, the question of who started the conversation was material. In any event, the full con- versation was ultimately, after a short 'colloquy, permitted. It is captious of the respondents nowto claim reversible error because of the foregoing interruption of the questioning. The Trial Examiner's next "interruption"'was as follows, 'at p. 5572; , p. 5573, line 17; and' pp. 5582 and 5583,'line 4 and following: Q. Well, now, after you said "How do you do" to each other, who then carried on the conversation, if you know? A. Well, offhand, I really don't know who spoke. Q. Well, do you remember what the conversation was? A. Well, it Q. What it was about? A. Well Mr. WHEATLEY. I object to what it was about. Give us the conversation. THE BALTIMORE TRANSIT COMPANY 125 Trial Examiner WHIrIEMOBE. What possible materiality is the subject matter of a conversation, Senator? Mr. COLGAN. It has a bearing upon his whole testimony, sir, what took place and what was done. Trial Examiner'WHIrrEMORE. Wait a minute. I sustained the objection. If you want the conversation, give it, but I don't want this witness' characterization of it. Thereafter the entire conversation was repeated, from pp. 5574 to 5579. The,topic, it developed, was solicitation of Field to join the Union. At the conclusion of cross examination; the Trial Examiner asked (evidently the,attempt to "break down" the witness referred to in the exceptions) : Trial Examiner WHZrrEMORE. You didn't say anything to McHenry and ask him not to talk to you about unions? 'A. No, I didn't. Trial Examiner WHIrrEMORE. Why didn't you ask him if he was your friend? If he was a friend of yours, if you were saying something to him and he didn't like it, wouldn't you expect him to ask*you not to say anything more about it? Would you still consider him as a friend if he went over your head to your boss? When the respondents moved to strike the question as biased, the Trial Examiner explained it as follows : Trial Examiner WHITTEMonE. Well, I again deny that I have prejudicial bias. My task is here to ascertain the facts, if pos- sible. Now, I have worked and I have had friends who are working, and this raises a point which I think any human being, whether he is a trial examiner or newspaper man or man on the street would be justified in asking of somebody else why a man, who says another is his friend, 'and tries to get him to, stop talking to him in a certain manner, doesn't ask him, but, goes over his head to their mutual boss. ' I think it is a logical question. It was not intended as bias. I wanted to find out what was in this man's mind. 'Exception 188: relates to the Trial Examiner's questioning the wit- ness, Flaherty, on matters not in the record. The incident referred to appears at pp. 5674-6. The Trial Examiner's questions were directed at ascertaining how the witness happened to board the bus at that time and whether he had been instructed to look for violations, one of the material issues in the case. The questions were not, therefore, required to be based on the witness' previous testimony. , The nature of the respondents' motion to strike the Trial Examiner's questions 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at p. 5676, line 16, shows that respondents ' counsel failed to under- stand the proper functions of a Trial Examiner. Exception 189: relates to alleged harassment of the witness, Dr. Kourey . The discussion was precipitated by questions by the Board's counsel directed to establishing the fact that the minutely detailed report of the interview prepared by Dr. Kourey was an unusual prac- tice for a physician (Board's Exhibit 203A-B ). Respondents' coun- sel intervened at this point ( p. 5999 ), alleging that the Board 's attor- ney was treating the witness in a contemptuous and offensive manner, which Board's attorney denied. The witness admitted that the case, that of Perry, was treated as an unusual case ( p. 6026). The Trial Examiner's question was as to why , after Perry had refused to be examined , as the witness had stated, the witness had "called Perry's doctor , Dr. Pass, to ask if he had any objection to Perry's being examined ( p. 6042). The Trial Examiner , in asking the question, said ( p. 6042, line 22 and following) : Well, I would like to have you explain what apparently is an inconsistency. Now,I want to give you full opportunity to do so, Doctor. * e * y I simply want to give the witness full opportunity to explain what to me-whether it does to counsel or not-appears to be an inconsistency here. Now, in all fairness to you, I don't want you to leave the stand until you have had an opportunity to explain it. Now, if you feel you have explained it and it is simply that I don't understand it, all right. This is what respondents' counsel refers to as attempting to break down-the witness' testimony and arguing with the witness. The Trial Examiner was entitled to ask the witness to explain a seeming inconsistency, and did so in the most courteous terms. When the wit- ness explained his telephone call as prompted by professional courtesy, (p. 6046), the Trial Examiner asked him why he had asked the patient first (p. 6047), a natural inquiry. At this point respondents' counsel accused the Trial Examiner of being more an advocate of the Board than an impartial trier of facts; whereupon the Trial Examiner then further explained the inconsist- ency in the witness' testimony (p. 6049). At p. 6047 the Trial Exam- iner took pains to explain the matter to the witness as follows : But just as a lawyer sometimes has to submit himself to certain ..practices, -probing . . . I suggest that now . . . you submit your- self to cross examination by counsel' for the Board and not accuse him of trying to make a crook out of you. THE BALTIMORE TRANSIT COMPANY 127 Elsewhere in this same exception, the respondents apparently except to a ruling of the Trial Examiner in striking out remarks made by Board's counsel to which respondents' counsel himself had objected. INTERMEDIATE REPORT Messrs Earle K. Shawe and Albert P Wheatley, for the Board. Messrs. Edward J. Colgan, Jr., and Charles A. Trageser, of Baltimore, Md., for the respondents. Messrs. E. L Oliver, of Washington, D C, and A. H. Keeler, of Baltimore, Md, for the Union. Carman, Tucker & Anderson, of Baltimore, Md., by Messrs. Robert R. Carman and Harold J. Wolfinger, for the intervenor. STATEMENT OF THE CASE Upon a second amended charge' duly filed on July 1, 1942, by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1300, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland) issued its com- plaint dated June 2, 1942, against The Baltimore -Transit Company and its affiliated Companies, The Baltimore Coach Company and- The United Realty Company of Baltimore City,' herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. With respect to the unfair labor practices the complaint, amended as herein- after described, alleged in substance (1) that the United Railways and Electric Company of Baltimore, predecessor of The Baltimore Transit Company, in October 1918 initiated, -formed, and sponsored The United' Railways Association of Baltimore, hereinafter called the U R. A., and at all times between October 1918 and July 1935 dominated and interfered with the administration of the U. R. A. and contributed financial and other support thereto ; (2) that in July 1935, receivership and reorganization proceedings involving said The United Railways and Electric Company of Baltimore were terminated, said corporation being reorganized and becoming known as The Baltimore Transit Company, one of the respondents herein, and that the respondents continued, from July to August, 1935, to dominate and interfere with the administration of the said U. R A, and to contribute financial and other support thereto ; (3) that in August 1935 the said U. R A. changed its name and continued to function as the Balti- more Transit Employees' Association, herein called the B T. E A, and that thereafter until July 1937, the respondents dominated and interfered with the administration of the said B T. E. A. and contributed financial and other support thereto; (4) that in July 1937 the said B. T. E. A. changed its name to and con- tinued to function as The Independent Union of the Transit Employees of Balti- more City, herein called the Independent ; and that the assets and liabilities of the said B. T E. A. were transferred to and assumed by the Independent, and that the respondents thereafter and until the date of the issuance of the' com- plaint, dominated and interfered with the formation and administration of the 'The original and first amended charges were filed, respectively, on March 5 and March 9,'1942 2 During the hearing, counsel for the Board moved to dismiss the complaint as to the United Realty Company of Baltimore City The motion was granted f 128 DEiCISIONS OF NATIONAL LABOR REILATZONIS BOARD Independent and contributed financial and other support thereto; (5) that the respondents, since July 5, 1935, have urged and warned their employees,to join and assist the Independent and its predecessor organizations, have recognized the said labor organizations as the exclusive bargaining agency of all of their employees, and have deducted dues and assessments from the wages of their employees on behalf of said labor organizations; (6) that the respondents, at all times since July 5, 1935, have urged, persuaded, and warned their employees not to become or remain members of=any other labor organization, especially the Union; lave threatened their employees with discharge if they became or remained members of the Union or any, other national affiliated labor organiza- tion ; and have kept under surveillance the activities of their employees on behalf of the Union and other national affiliated labor organizations; (7) that the respondents, on or about the dates listed opposite their names, discharged and thereafter refused to reinstate the following employees, because they engaged in concerted activities with other employees of the respondents and assisted a labor organization known as the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (AF of L), herein called'the Teamsters, and the Union': September, 1941, George May. October 14, 1941, George Silberzahn. November 6, 1941, Arthur W. Rawlings. (8) That the respondents, on or about the dates listed opposite their names, discharged and thereafter refused to reinstate the following employees because they joined and assisted the Union : March 6, 1942, Clayton G. Perry. March 7, 1942, Frank Pennington. March 19, 1942, Carroll Lee Strupp. March 19, 1942, Joseph M Flaherty. March 20, 1942, John McHenry. April 14, 1942, Theodore J Peacock. f S April 22, 1942, Charles L. Mueller. and (9) that by said activities the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondents, the Union, and the Independent. . The respondents, by their answer verified June 9, 1942, denied that they had engaged in the unfair labor practices alleged, and affirmatively alleged that the Board is without jurisdiction in the premises (1) because the respondents are not engaged in other than intrastate activities; and (2) because on Sep- tember 29, 1937, the then Regional Director for the Fifth Region informed the respondents that he was dismissing charges filed with the Regional Office against the respondents, for, lack of jurisdiction, and that said dismissal constituted res adyadicata as to the 'issues raised in the complaint in these proceedings. Pursuant to notice, a hearing was held at Baltimore, Maryland, and at Atlanta, Georgia s between June 15 and August 27, 1942, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing the Trial Examiner granted a petition to intervene submitted by the Independent. The Board, the respondents, the Union, and the Independent 3 The hearing, upon agreement of all parties, was transferred to Atlanta, Georgia, for one day, August 19, for the purpose of taking the testimony of Theodore J Peacock, then serving in the U. S. Army. , . , THE BALTIMORE TRANSIT COMPANY 129 were represented by counsel and 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. At the opening of the hearing the Trial Examiner overruled an objection made by counsel for the respondents to proceeding with the hearing, said objection being based upon the ground of alleged res adjudicate. Thereafter counsel for the respondents was allowed a standing objection to the taking of all evidence. During the hearing the Trial Examiner granted.a motion by counsel for the Board to amend the com- plaint, by adding to the list of discharges the name of Joseph M. Flaherty, there being no objection, except the standing objection, by counsel, for the respondents. At the close of the hearing, counsel for the respondents made a motion to dis- miss the complaint. Ruling'upon said motion having been reserved by the Trial Examiner, it is hereby denied. Also at the close of the hearing the Trial Examiner-granted a joint motion by counsel for the Board and for the respond- ents to conform the pleadings to the proof. At the conclusion of the hearing, all parties were afforded an opportunity to argue before the Trial Examiner. Only counsel for the Board availed themselves of this opportunity. All parties were granted until September 15, 1942, for the filing of briefs with the Trial Examiner. No briefs have been received. \, Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes, in addition to the above, the following: FINDINGS OF FACT 1. THE BUSINESS'OF THE RESPONDENTS A. History of the respondents The Baltimore Transit Company is the outgrowth of the reorganization in 1935 of the United Railways and Electric Company. That company had its beginning in 1859 when the Baltimore City Passenger Railway inaugurated a horse car line from the foot of Broadway to Baltimore and South streets. The United Railways and Electric Company of Baltimore was organized in 18S9. From it, there emerged in 1899 the United Railways and Electric Company. In 1930 a receiver' was appointed for the company. Reorganization proceedings resulted, on July 18, 1935, in an order of the United States District Court for the District of Maryland terminating the receivership and directing the Trustees to transfer to the newly organized The Baltimore Transit'Company, the charter of which was approved on July 9, 1935, the properties formerly administered by the Trustees. The Baltimore Transit Company and the Baltimore Coach Company are corpo- rations duly organized under the laws of-the State of Maryland, having their principal office and place of business in the City of Baltimore, Maryland, and are engaged in the operation of a street railway and bus transportation system. The Baltimore Transit Company owns and operates the street cars of the system. The buses are owned and operated by the Baltimore Coach Company, which was Incorporated in January 1927 and the entire ownership and control of which Is vested in the Baltimore Transit Company. The Transit Company and the Coach Company are operated under single management' and together constitute a unified and completely integrated system, the effective directing force of which is the Baltimore Transit Company. The United Realty Company of Baltimore City, a subsidiary of the Balti- more Transit Company, was found at the hearing to be merely a holding, com- * Both companies have the same president and the same general manager. 513024--43-vol. 47-9 130 i DECISIONS OF NATIONAL LABOR - RELATIONS BOARD pany and not , an operating company. A motion by counsel for the Board to "dismiss the United Realty Company, of Baltimore City from the proceedings was therefore granted, as above noted. B. The nature of the respondents' activities with respect to interstate and foreign commerce 1. Questions raised at the hearing - At the commencement of the hearing the question of the jurisdiction of the Board was raised generally through the respondents' objection to the introduction of evidence by the Board on the ground that the allegations of the complaint were not sufficient to show that the respondents were engaged in other than intrastate activities; or that their activities affected the free flow of commerce among the several States or with foreign nations. The question of the Board's jurisdiction was also raised, as above noted; by the respondents' specific objec- tion to'the introduction of evidence, treated by the Trial Examiner as a motion to dismiss, on the ground that a decision of the Regional Director for the Fifth Region in September 1937 in connection with a charge filed by one Robert J. Brylke, alleging violations by the Baltimore Transit Company of Subsections (1) and (3) of Section 8 of the National Labor Relations Act, constituted an adjudication whicdi precluded the Board from again in the present proceeding in- quiring into the presence of jurisdictional facts' The Trial Examiner overruled the general objection to the introduction of evidence and denied the motion to dismiss. - 2. The scope of the respondents' activities The respondents operate 22 bus lines, including 3 trackless trolley lines, and about 30 streetcar lines. Eleven of these lines are icominouly referred to' as industiial lines. The lines serve for practical purposes every section of the city, with some minor exceptions. One line operates from Dundalk, near which is stationed Camp Holabird, an army camp. The respondents sell commutation tickets for all of the suburban lines operating beyond the city limits into the county zone, including the lines operating from Towson, Catonsville,- Ellicott City, Carney, Middle River, Back River, Essex, and Landsdowne. Line number 16 comes within a block and a half of the Fairfield Broadway Ferry, maintained 'The relevant facts of the Brvlke proceedings are as follows On August 6, 1937, the Transport Workers Union of America, a C I 0 affiliate, filed charges that the Balti- more Tiansit Company had violated Subsections (1) and (3) of Section 8 of the Act by discharging one Robert J. Brylke After considering the chaiges, Bennet F Schauffier, then Regional Director of the Fifth -Region, on September 29, 1937, wrote a letter .to the attorney for the Baltimore Tiansit Company stating that he had decided to dis- miss the charge for lack of jurisdiction No formal complaint was ever issued. No hear inns were held, for the reason that the Company declined to participate because it questioned the jurisdiction of the Board Under date of April 29, 1938, Beatrice M, Stern. Assistant Secretaiy of the Boaid, advised the Transport Workers Union of America that the Boaid had affirmed the refusal of the Regional Director to issue a com- plaint No appeal was taken and no plenary hearing was ever held by the Board Since the charging party was a different union from those involved in the present proceeding, since no plenary heaimg was held, and since the factual situation existing in 1937 was different from that now piesented, the decision was obviously not res fudiceta of the juus- dictional question herein presented That an administrative agency is not in any event bound by its prior adjudications is abundantly establshed by Pennsylvania Water and Power Company v Federal Power Coniniission, 123 F (2d) 155, 162, holding that succeed- ing heads of departments may reverse a practice founded on an incorrect interpretation of the law Sec also Payne v. Iloughton, 23 Appeals, D C., 234, affirmed 194 U' S 88. That the naluie of uiterstate commerce is not a static concept is demonstrated by the change since 1937 in the views of the Supreme Court of the.United States on this question. THE BALTIMORE TRANSIT COMPANY 131 by the Maritime Commission for the workers at the Fairfield Plant of the Bethle- hem Steel Company and at the Wagner and Maryland Dry Docks. Line number 21 comes to within a few blocks'of the ferry.' In this section ocean-going lilies ply up and down the Patapsco River, a,navigable river. The ferry handles 1,500 passengers a day, of whom at least 70 or 80 walk from respondents' cars to the ferry. Line number 20, serving Sparrows Point, increased its passenger total from 953,000 in January 1941 to 1,338,000 in April 1942.8 Another line serves the Logan Field Airport. The annual report of the Baltimore Transit Company to the • Public Service Commission of Maryland ' for the year ended December 31, 1941, reveals the following information : Total operating income______________________________________ $12,615,069.72 Passenger car mileage________________________________________ 27, 036, 539. 00 ,Passenger car'hours_________________________________________ 2,846,590.00 Regular fare passengers carried_______________________________ 136,152,635 00 Total compensation of employees______________________________ $5,829,001.44 Total passenger carrying cars________________________________ - 1,128.00 In addition to its railway system, the respondents maintain shops, offices, etc., occupying eight acres of floor space. - The Baltimore Transit Company operates the only, streetcar lines in Baltimore. The only bus lines operated in the city other than, by the Baltimore Coach Com- pany for the past 11 years, with the exception of the interstate through systems, are those operated on Fayette Street by five individuals operating a ,total of 8 buses, as'against the Baltimore Coach Company's 18 buses operated on that line alone ; the Rosedale Line, operating from the terminal of respondents' number 6 line to the Glenn L. Martin plant, and the McMahon Bus Company Line, another small line operating into the Martin plant from the northeastern part of the city 7 There are a certain number of privately owned trucks which carry passengers, but Stoll, the respondents' general manager, was unable to name a single company supplying such services. ' No such service is supplied, for example, by the Bethle- hem Steel Company, employing many thousands of workers at its Sparrows Point and other plants. At the time of the hearing, 998 taxicabs 'were in operation in Baltimore, the .number of which is likely to be affected by the recent prospective orders of the Office of Defense Transportation. I The number of passengers on respondents',lines is increasing daily. There has been a considerable increase in recent months in lines serving the industrial areas, and respondents are carrying "a tremendous increase over what they were carrying a year ago."' The Public Service Commission has repeatedly requested the respondents to attempt to secure, and the respondents have tried to secure, additional equipment for their operations. Respondents' "P" bus line, serving the Glenn L. Martin plant, carries approxi- mately 7,500 of its employees daily.' _ l 8 Stoll, the respondents' general manager, admitted that the war effort had "quite a lot" to do with this increase ' 7 There is one permit holder in the Sparrows Point area who was not shown to be presently operating, as against respondents' 70 streetcars in that area. 8 Testimony of Paul L Holland, Chief Engineer; Maryland Public Service Commission. Holland further testified that "at the present time a'large part of the industrial pas- sengers in Baltimore is'hauled by the Baltimore Transit Co " 9 Stoll's statements to the contrary, his estimates, dropping as low as 100, are con- tradictory. His testimony reveals, moreover, that the respondents' check was only of one shift Contrast the letter from Duvall, respondents' general manager, to the, State Occupational Advisor, of April 24, 1942, to secure deferments, stating that 2,700' people were transported by respondents to the end, of the line nearest the Martin plant. Duvall 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents' line 20 serving Point Breeze carries between 20 percent and 25 percent of the 3900 workers employed at the Westinghouse Plant. Respondents' "Q" line also serves this plant. Respondents' number 2 line serves the Bendix Radio Plant. Other Bendix plants are served by the number 6 and number 8 lines.' Line number 30 serves the Koppers Plant. This plant is also served by the "Q" bus line. , The foregoing enumeration of certain lines serving industrial areas is illustra- tive only, and not exhaustive. Significant of the ratio of war industry workers, , carried, to other passengers, is the fact that on May 5, 1942, a typical, weekday, according to a letter written by Mr. Hill to the Maryland Committee on Wartime Transportation," the respondents delivered 5,042 day shift workers reporting at 7 a. m., an increase of 51 percent over a typical weekday 3 months earlier, as against 37,000 passengers carried between 8 and 9 a. m. to a whole square mile of the central business district. Equally significant is the fact that a diminution in gross receipts during 1931 of 13 percent was explained by Mr. Storrs, president, in his annual report to the stockholders as attributable to a falling off in the Maryland industrial payrolls of 19 percent " 3 The extent of the respondents' activities affecting interstate and foreign commerce The impact of the respondents' activities on interstate and foreign commerce has in the past as-well as recently been not only admitted but insisted upon by the respondents' representatives. In July 1941, in the face of approaching war, there appears in "Baltimore Transit Topics," a publication of the respondents, the 'flat statement that "most workers in defense industries use street cars or buses to get to work." Mr. Hill, the respondents' president. in his annual report to the stockholders for 1941, stated that the transportation problem faced by the Company was particularly acute "because of Baltimore's leading place in war industry," in an application for priorities addressed to the Director of Industry Operations about February 26, 1942. Mr. Hill also stated that the applicant, ,the Baltimore Transit Company, "furnishes all of the public transportation in ' Baltimore and the surrounding suburbs including the only service to practically all of the important defense industries among them being the Bethlehem-Fair- field Shipyard and Bethlehem-Fairfield Company."' In March 1942,-Mr. Duvall, the general manager, referred to the respondents as being "as important as the Pennsylvania Railroad," and as recently as April 7, 1942, Mr. Potter, a vice president, referred to the respondents as one of the seven most important industries in the war effort. It is unnecessary, however, to rely on the admissions of the representatives of the respondents in,this regard. The Trial Examiner finds affirmative proof, abundantly established, of no less than eight independent aspects of the respond- ents' activities which constitute participation in interstate commerce or which affect, directly and substantially, commerce between the States and with for- eign nations These aspects are: (1) transportation of workers to and from industrial plants, the materials or products of which move in interstate com= claimed, that the figure of 2,700. was a stenographic error for 270, but his penciled notes show a comma after the figure 2 in the figure 270 On another occasion Duvall gave the Martin figures as 750, based on a check made on the morning of his testimony. 10 The stated purpose of the letter was to induce certain plants to stagger and sub- divide the principal shifts, since "the indicated trend points definitely to complete satura- tion of the no., 6 Curtis-Bay, Fairfield line within a comparatively short time." 11 Annual report of the United Railways and Electric Companies of Baltimore, 1931, page 4. . THE BALTIMORE TRANSIT COMPANY 133 merce; (2) the purchase of supplies from across State lines; (3) the supplying of transportation services connecting with interstate railroads and boat lines ; (4) the abortive attempt to evade the Federal jurisdiction by the discontinuance,, on July 17, 1937, of the respondents' interstate bus service; (5) transportation of United States mail'; (6) transportation of newspapers; (7) the display of national advertising; and (8) the purchase of electric energy generated outside the State. These bases of jurisdiction will be separately considered in the following subsections. (a) The transportation of workers to and from industrial plants engaged in interstate commerce Representatives of 47 of Baltimore's largest industrial plants, constituting a substantial cross-section of its largest and most important industries, testified in the proceeding. The composite result of the testimony, based on surveys, questionnaires, and other methods of fact finding, demonstrates than an enor- mous number of industrial workers in the Baltimore area are completely depend- ent on transportation facilities furnished by the respondents. Of the more than 147,000 employees of these 47 plants alone, over 45,000 depend for transportation on the streetcars and buses of the respondents. Mr. Holland, chief engineer of the Maryland Public Service Commission, cited figures received from the Balti- more Transit Company itself showing that during morning rush hours it carried 100,000 passengers to the industrial areas of the city. Mr Holland also testified that in his opinion the facilities of the respondents were essential to the opera- tions of the vital war industries located in and around Baltimore and the outlying areas. Although certain of the calculations of the representatives of the industrial plants are based on estimates and in a few cases on whatrinay be fairly described as mere guesses, there is in the record ample definite proof to compel the con- clusion that any interference with the regularity of the transportation furnished by the respondents would have an immediate, disastrous, and, in the phrase employed by the president'of the Baltimore Transit Company, "absolutely vital" effect in retarding, diminishing and halting the flow of commerce between the .States and with foreign nations and the prosecution of the war effort. Since the great mass of the testimony on this point renders impracticable a complete discussion, the Trial Examiner has prepared the following table comprising a summary tabulation of the testimony : Company Employees Passengers Source American Smelting & Refining Co ----------------- 2,100 1,088 Individual canvass. Bethlehem Steel Co , Sparrows Point Shipyard 44, 500 8, 400 Actual count of pas- sengers Western Electric Co , Point Breeze Works: ____-__-_ ' 3, 576 ,681 Estimate based on 70% return, of question- naire Davidson Chemical Corp--------------------------- 1,600-1,700 771 Estimated Western Maryland Railway_______________________ 857 423 Do Men's Hats, Inc----------------------------------- 700-1,000 875 Do Maryland Drydock Co_____________________________ 6, 000 Soo Do. Bethlehem Steel Co , Shipbuilding Division, Key Highway 7, 800 989 Do Bethlehem-Fairfield Shipyard_____ ---------------- 27, 000 5, 000 Do Crown Cork & Seal Co', llighlandtown Plant___ - 2, 163 /978 Questionnaire. Rustles Iron & Steel Corp_____________ ----------- 2, 550 000 Estimated Westinghouse Electric & Manufacturipg Company_ 2, 000 500 Do Schluderberg-Kurdle Co_____________ -------------- 1, 400 080 (70%) Do Butler Brothers____ ------------------------------- 775 500 -Do. Chesapeake & Potomac Telephone Co of Balti- more City 4,300-4,400 "a substantial number " American Can Company___________________________ 700 200 Estimated. William Hooper & Sons Co__ ---------------------- 1, 050 525 Do McCormick & Co Inc. & Subsidiaiies_____-_______ '445 324 (73%) Individual canvass. 1 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company Employees Passengers Source Consolidated Gas, Electric Light & Power Co of Baltimore _ 5, 500 3, 000 Guess General Refractories Co___________________________ 600-700 192 Individual canvass. Alfred F Goetze, Inc____________ ------------------ 530 400 Estimated City Baking Company______________ -------------- 475 350 Do Crosse & Blackwell Co_____________________________ 500 300 Approximation based on individual can- vass Standard Wholesale Phosphate & Acid Works------ 488 320 Estimated. General Baking Company ------------- ------------ 387 157 Individual canvass. Continental Oil Company___ _______________ ------ 200 109 Estimated American Sugar Refining Company______ ---------- 900 1478 Do Baltimore Enamel & Novelty Co___________________ 225 10 Individual canvass Kaylon, Incorporated______________________________ 250-275 225 Estimated. Aetna Shirt Company____ ----------------------- 262 (98%) 256 Do Pittsburgh Plate Glass Company ------------------- 325 261 Do Baltimore & Ohio Railroad-2i ------------------- -- 9, 300 7, 000 Do Maryland Glass Corporation ___________________'_-_ 476 328 Do Bendix Radio, a Division of Bendix Aviation Cor- poration 4, 800 1,000 Guess Koppers Company, Barlett Haywood Division----- 2, 400 "Employees are very dependent upon streetcar and bus transportation Koppers Company. American Hammer & Piston Ring Division 2, 200 1, 600 1 Estimated. Revere Copper & Brass,'Inc------------------------ 1, 200 288 Do. () wens-Illinois Can Co________ -------------------- 1, 055 603 Do Anchor Post & Fence Company____________________ 700 300 Do Baltimore & Ohio Railroad,-Montclair shops------ 1, 855 1,200 Do Maryland Biscuit Company_______________________ 425 300 Do Frankfort Distilleries Inc________________ --------- 400 230 Do Federal Tin Company, Inc 450 375 Guess Pennsylvania Railroad, Orangeville Engine House__ 569 260 Estimated. Harry C Weiskittel & Cc________________________ _ 185 50 Do. Butler Brothers ________ _________________________ 170 155 Do Lever'Brothers Company______'___________________ 734 349 Do The 47 industrial concerns included in the foregoing enumeration buy 'and bring into Maryland annually from across State lines over $271,000,000 worth of materials and sell and ship out of Maryland across State lines over $500,- 000,000 worth of merchandise. They are all clearly' engaged in interstate commerce. Corroborating the overwhelming proof established by the foregoing figures, even disregarding those based on estimate or conjecture, is the testimony of Stoll, the respondents' superintendent of traffic.- Stoll testified that the re- spondents' line serving Curtis Bay transports 45,000 people who are employed in various industries along that route, including the Fairfield Shipyards of the Bethlehem Steel Company," the Maryland Dry Dock Company, and 20 or 30 other industrial plants, "10 to 20 percent of whose employees were, the witness admitted, carried by the cars of the respondents. This estimate corresponds with that of the Association of Commerce of Baltimore.' Illuminating testimony in this regard was furnished by Paul L Holland, chief -engineer of the Public Service Commission of Maryland, who has since 1940 worked on a survey of transportation services in and around Baltimore., A map prepared in connection with these studies divided the city into ten areas. Data compiled as of January 8, 1942, from information furnished by representatives of various industrial plants reveals an accurate picture of the integration of respondents' arteries of transportation with the industrial heart of the city 14 "The Sparrows Point line, serving the Fairfield area, was recently enlarged so asfto carry 5,000 workers - - i•' The respondents on June 22, 1942, added 101 additional buses, to provide increased facilities for `war production plants i4 The map indicates the principal industrial plants, the number of employees, and the percentage of employees carried by the respondents. The figures are in close correspond- ence,with the testimony adduced by witnesses who testified on behalf of many of the com- panies whose plants are shown on the map. The "Directory of Maryland Manufacturers," Commissioner of Labor Statistics, Maryland , of April 1940 , was used in-preparing the map. THE'. BALTIMORE TRANSIT COMPANY 135 Even since' 1937, when the Regional, Director of the Fifth Region declined to issue a complaint based on the Brylke charges, the integration of industry and transportation has become more and more self-evident. This has been recognized by the Supreme Court in the Consolidated Edison case'G It re- quires but little imagination to translate into the effect on the war effort a stop- page in the transportation of workers in the war industries of Baltimore, one of the country's most important industrial areas."' The decision of the United States Supreme Court in Kirschbaum v.,, Walhng,17 upholding the validity of the Fair Labor Standards Act as applying to the employees in a loft building, including the elevator operators, is directly applicable'to the transportation of workers to plants engaged in interstate commerce. Both the Consolidated Edison case and the Kirschbaum case are applicable to the situation here involved, unless indeed a distinction is to be drawn as to _the first case between supplying elec- trical energy and human energy, and as to the second case between vertical and lateral transportation.38 The sweep of the commerce clause is not halted by encountering the-element of. manpower rather than electric power. Distinctions of constitutional interpretation are not so minutely drawn.19 Consolidated Edison Company V N. L R B, 305 U. S. 197. See also Consumers Power Company v N. L. R B, 113 F. (2d) 38 (C. C. A. 6). 18 The record fails to substantiate the respondents ' contention that other facilities could be substituted, such as private automobiles or converted railroad sidings The Baltimore and Ohio Railroad serves some outlying stations and suburban areas in the direction of Halethorpe , Relay, and Philadelphia . There are a few passenger stations in Baltimore, at Camden, Mt Royal, West Baltimore, Lansdowne, and Halethorpe , and a platform at Gay Street. The through service precludes adequate space for commuters even from those stations. Even if the Baltimore and Ohio tracks ran into the highly concentrated employ- ment centers , the facilities of the respondents would be necessary to get the passengers to the stations. The Pennsylvania Railroad has no local service between the Union Station and Orangeville. 'A passenger car can not be shunted into a freight car siding. Railroad officials report that facilities are lacking to use the railroads for passengers even in the event of an emergency, see report of Conference of Representatives fiom Industrial Plants Producing War and Defense Necessities before Public Service Commission of Maryland, January 8, 1942. As to the use of passenger automobiles, apart from the fact of scarcity of gas and tires, there is no place to park private automobiles in sufficient numbers to transport all the people. 17 62 S Ct. 1116, aff'g 124 F. (2d) 567 (C C. A 3; sub, nmu. Fleming v Kirschbaum) and Fleming v. Arsenal Building Corp., 125 F (2d) 278 (C. C. A. 2 ). See also 'Matter of Butler Bros, 41 N. L R. B., Case No. C-2005, June 1942; "The passenger elevators carry employees of the various tenants . . . to and from their offices and warehouses in the building " See also N L R B. v Bank of America National Trust & Satiings Association (C C A 9; decided September 14, 1942) 18 That the operation need not in itself be interstate commerce but need merely affect interstate commerce, isNof course clear . "It is the effect upon interstate or foreign com- merce, not the source of the injury , which is the criterion ," Consolidated Edison Company of New York v. N. L. If. B, footnote 15, supra. Note that the language of the National Labor Relations Act itself, 49 Stat. 449, Sections 1 and 2 (7), is much broader than the language of the Fair Labor Standards Act. 19 The respondents' present position is hardly consistent with its apprehension in the spring of 1938 that it would be affected by the Wages, and Hours Law. In the minutes of the meeting of the Board of Representatives of the Independent Union, of May 17, 1938, attended by Mr. Mundy , counsel, appears the following : ` Since the Secretary of Labor has such power as the Act gives, it is possible she may rule we are engaged in enterstate (sic) commerce as we buy so much of our equipment out of the state. - Representative Loftus said if we admit we are under this act and deny we are under the Wagner Act, we will be inconsistent. (sic) 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Purchases by the respondents of materials originating outside the State Purchased from Sherwood Brothers, Inc., Baltimore, Maryland : Gasoline °_ Callon 1937----------------------------------=--------------- 1,570,124 1938------ ------------------------------------------- 1,497,029 1939-------------------------------------------------- 1,529,183 1940----------------I--------------------------------- 1,672,400 1941-----= ------------------------------------------- 1,698,280 Oil • 1937------------------------=------= ------------------- 10,657 1938--------------------------------------------------- 165, 377 1939------------ --=---=----------------- =------- ------ 201,885 1940---------------------------------------------------- 210,482 1941---------------------------------------------------- 313,976 It was stipulated by the counsel for the Board and the counsel for the,re- spondents that all of the,oil and gasoline so purchased originates from points outside of Maryland. Total purchases by respondents from sources located within Maryland 1940--------------- \ ----------------------------- $1,045,003.86 1941 --------------------------------------------- 1,676,462.98 Included in these figures is the cost of oil and gasoline and the rental of tires 2D Total purchases from sources outside of Maryland, including new equipment such as cars, buses, and trolley coaches 1940----- ---------------------------------------- $1,120,308.12 1941-------------------------=-----------= ------ 2,353,455.96 To be added to these figures is the cost of oil and gasoline. • During the years 1937 and 1938 specific purchases from points outside of Mary- land" were as follows : 1937 Buses, streetcars, and trackless trolleys-------,- $1,305,663.78 1938 Buses and trackless trolleys------------------- 854, 178. 68 (c) Services connecting with interstate carriers The Chesapeake Boat Line runs to'Norfolk, Virginia, and into Delaware. Two of the respondents' streetcar lines run directly to the wharves. In some cases the respondents serve wharves where 5ocean-going liners dock, as at Sparrows Point and Pratt Street, served by the respondents' number 10 trackless trolley line. Stoll testified, "I will say that mass transportation has been provided in front of the Pennsylvania Station in years gone by as well as today." Streetcars in Baltimore "have, always been a necessary adjunct of the steam railways in transporting passengers between their homes and the depot." 22 20 The record shows that in 1941 the respondents rented tires at a cost of $87,266, from the Baltimore office of the U. S. Rubber Company, but fails to show conclusively that these tires originated outside the State. 2' "The test of the Board's jurisdiction is not the percentage of either purchases or sales made outside the State but the effect thereof on commerce," Matter of May Company, 39 N. L. R B. 471, 475. 22 Board's Exhibit 42. THE BALTIMORE TRANSIT COMPANY 137 (d) The abortive attempt to evade the Federal jurisdiction by the discontinuance of the interstate bus service l Duvall,, the respondents' general manager, admitted that the respondents' pur- pose ,in discontinuing its interstate service on July 17, 1937, was so that the National Labor Relations Act would no longer apply to them. It may well, be argued that the very fact of the discontinuance of such services demonstrates that the unfair labor practices in question affect the flow of commerce and that the Board has jurisdiction. There is nothing to indicate that the former practice may not be resumed after the decision of a proceeding before the Board.' (e) Transportation'of United States' mail On July 19, 1935, the Post Office Department authorized the respondents to carry mail over a designated route. The order was a continuing one and is now in effect. The revenue derived by the respondents from this activity has been as follows: 1937-------------------------------------------------- $3,000.00 1938-------------------------------------------------- 2,100 00 ' 1939------------------------------------------------- 2, 000 00 1940-------------------------------------------------- 1,000.00 1941------------------------------------------------- 1,100.00 (f) Transportation of newspapers Annual Income: 1937-1941 inclusive ------------------------------- ^' $1,000 00 (g) Display of National advertising The revenue of respondents from -this source was as follows : 1937------------------------------------------------- $45,000:00 1938------------------------------------------------ 45,.000 00 939------------------------------------------------- 45,000 00 940-------==--------------------------------------- 34, 371. 29 1941----------=-------------------------------------= 28, 731.,98 The display of advertisements of companies doing an-interstate business has been, held to constitute in itself an activity affecting interstate commerce:' (h) The purchase of electric energy: Sales of- electric energy to the respondents by the Consolidated Gas, Electric, Light and Power. Company of Baltimore during 1940 Re amounted to 128,826,900 kilowatt-hours,-at the price of $1,009,970. Delivery was at, Baltimore and Sellers Point, Maryland 27 During the same year, 1940, Consolidated purchased 11041;- 23 Section 10 (c) of the National Labor Relations Act reads : has engaged in or is engaging in any such' unfair labor practice " 24See N. L R B v. A. S Abell Co, 97 F (2d) 951 (C. C. A. 4), enf'g as modified 5 N L R B.,644. In the Matter of Express Publishing Company and San Antonio Newspaper Guild, 13 N. L. R B 1213, aff'd in N. L;R. B V. Express Publishing Company, 312 U S. 426 -" Letter of Federal Power Commission to N. L R B B. dated March 26, 1942 I 27 "Moody's Public Utilities," 1941, states that under the 1contract between the Consolidated Gas, Electric Light and Power Company of Baltimore and the Baltimore Transit Company, the Consolidated "supplies all power and energy required for the operation of the Transit Companies lines." An article in the July-August, 1939, issue of Baltimore Transit Topics, entitled "Power," contains the following statement at page 9: "All the electrical energy we use is purchased from the Consolidated Gas, Electric Light and Power Company of Baltimore." 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 127,400 kilowatt-hours of energy at a cost of $5,091,612, and in addition generated at its steam generating plants in Baltimore 877,528,000 kilowatt-hours, •slightly less than one-half of its total output. The energy purchased by Consolidated from the Pennsylvania Water and Power Company and from the Safe Harbor Water Power Company is brought into Maryland from Pennsylvania. The energy so purchased from Pennsylvania sources amounts to 974,199,000 of the total of 1,041,127,400 kilowatt-hours purchased by Consolidated in 1940. 56.5 percent of the total kilowatt-hours sold by Consolidated in '1940 consisted of-energy gen- erated in Pennsylvania. In 1941 sales of electric energy to the respondents by Consolidated amounted to 138,381,291 kilowatt-hours. In that year Consolidated purchased across State lines 898,230,000 kilowatt-hours. Total power generated by Consolidated" in that year was 1,395,691,000 kilowatt-hours,- so that approximately 39 2 percent of the total sales by Consolidated in 1941 consisted of energy generated outside the State of Maryland. The power generated and purchased by Consolidated goes into a single pool and is distributed to all of its customers. Therefore, in 1940; approximately one-half, and in 1941 approximately' three-eighths, of the power purchased of Consolidated by respondents was imported across State lines. The amount of the total consumption of electric energy by respondents in 1940 was 128,826,900 kilowatt-hours and in 1941, 138,381,291 kilowatt-hours. Respondents paid in 1940, for approximately 129,000,000 kilowatt-hours, the sum of approximately $1,010,000. At the same rate, respondents paid in 1941 for approximately 139,000,- 000 kilowatt-hours a slightly greater sum. Since approximately one-half of respondents" consumption of electric energy i in 1940 and approximately three- eighths of respondents' consumption of electric energy-in 1941 consisted of energy generated in Pennsylvania, the amount paid by respondents for electric energy generated in Pennsylvania amounted in 1940 to approximately $500,000 and in 1941 to approximately $375,000. C. Physical structure and management personnel of the respondents The respondents' operating personnel, numbering about 3,000, with whom these proceedings are mainly concerned, are under the general direction of the super- intendent of transportation. S - The operating department includes the street cars, buses and trackless trolleys. From November 1935 until May, 1942, the manager of transportation was John B. Duvall. In May he succeeded H B. Potter as general manager, and was succeeded as transportation manager by Badart, previously Duvall's assistant. Soth is now Badart's assistant. Under the transportation manager and his assistant is Chief Supervisor Moore, who has under him six supervisors. Under the supervisors are 11 division or , line superintendents. Under the line superintendents are 29 street inspectors, 51 dispatchers, 20 car house clerks and 13 starters. One of the supervisors has' charge of a chief instructor and seven instructors. All of the employees above- listed have supervisory powers. In general, the superintendent of transportation has complete and, absolute supervision over all of_ the positions above named, as well as the respondents' police department and some other divisions. - Among the supervisors who will be referred to frequently herein are Ayres, Smith and Martin. Martin is in charge of all bus operations and some trackless trolley operations Ayres is special night supervisor over the entire system. Smith is one of the district'supervisors. THE BALTIMORE TRANSIT COMPANY 139 Of the eleven line superintendents, who have charge of 17 operating bases, Woolston and Wisner figure prominently in the discharge cases hereinafter discussed. Both are under Supervisor Martin. II. THE ORGANIZATIONS INVOLVED 'Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, Division 1300, affiliated with the A. F. of L.; International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers , affiliated with the, A. F. of L. ; _ and The Independent Union of the Transit Employees of Baltimore City are, and the Baltimore Transit Employees ' Association and The United Railways Employees Association of Baltimore were, labor organizations admittink to membership employees of the respondents. J III. THE UNFAIR LABOR PRACTICES A. Domination and interference with the formation and administration of inside labor organizations; the U. R. A., the B. T. E. A., and the Independent (1) Management's formation and installation ofthe U. R. A. in 1918 From 1918 to the time of the hearing, the respondents and their predecessor, the United Railways and Electric Company of Baltimore , have dealt with their employees for purposes including collective bargaining , only through inside, or- ganization of the employees . Such organization has borne the names , succes- sively, of the United Railways Employees Association of Baltimore, ( temporarily called the United Railways Association of Baltimore ), the Baltimore Transit Employees Association , and the Independent Union of Transit Employees of Baltimore City. In the spring of 1918 a meeting took place at which were present the presi- dent, vice president , general manager, superintendent of transportation, and assistant superintendent of transportation of the United Railways and Electric Company of Baltimore , herein called Railways Company. The assistant super- intendent of transportation was then Duvall , who subsequently has become, general manager and who testified at the hearing. Duvall testified that he had heard, at the meeting in question , that a request had been made by the plat- form men and that the company officials "wanted to see what could be done to help them work out a plan whereby they could organize an independent union.' The request from the employees , was not made to Duvall personally , and he testi- fied' to it only from hearsay. On July 12, 1918, a meeting of a temporary com- mittee of the United Railways Association of Baltimore was held at the Park Terminal Car House . There were present 26 platform men, comprising the committee, and the assistant to the president of the Railways Company, its assistant general manager, its superintendent of transportation , and Stuart, of counsel for the Railways Company. Palmer , assistant to the president, was the first speaker and stated that he had prepared a tentative set of constitution and bylaws. The assistant secretary of the company acted as secretary of the meeting. Nominations were had for temporary chairman and- one of the plat- form men was elected and presided thereafter . The proposed constitution and bylaws were unanimously adopted and a resolution passed for the preparation and distribution of nomination blanks for the election of members of the Gen- eral Committee. The-General Committee met on July 22 for organization and election of officers. This meeting also was attended by officials of the-Railways Company, including its president , Cross. On August 6, 1918, the General Coin- i 1 140 DEiCISIONS' OF NATIONAL °LA-BOR-"REILATIONIS BOARD__= mittee adopted a constitution' and bylaws for the organization undei, the name of United Railways Employees Association of Baltimore. - The objectives of the U. R. A., as stated in the constitution, wee . to cooperate with the company . . . to promote the welfare of the employees and the Com- pany by discussion and adjustment amicably of all 'questions that may arise as to,wages and working conditions." A Board of Arbitration was established to settle disputes. On August 20, 1918, a new constitution and bylaws were adopted, which differed from 'the old principally in the following respects: (1) discipline and efficiency should not be subject to arbitration, and' (2) the Rail- ways Company was to continue benefits and insurance at its own expense ; was to contribute not less than $1,000 a month toward the sick benefit fund and was to bear the expense of carrying on the U. R. A. except as the expenses might be defrayed by the monthly assessinents of members. Among the provisions of, the constitution and bylaws were the following: (1) provisions for the company's approval of the constitution and bylaws, (2) provisions for the company's approval of -amendments to the constitution and bylaws, (3) provisions for the appointment by the company of the, Associa- tion's secretary and treasurer, the latter being bonded at the company's expense, and (4) -provisions for company contributions and support. Also to be observed is the absence of any provision for the holding of meetings of the general member- ship Indeed, since the formation of the parent union in 1918, there has never been a meeting of the general membership down to the present time.28 Although the constitution and bylaws contained no provision at this time for a check-off; such a system was immediately inaugurated." The offices of the U. R. A. were on-company property, where meetings of the General Committee were also held. From the inception of the U. R. A. committee members were paid- by the Railways Company for their time spent on union matters, at their customary rate of wages. , This practice was continued in the case'of the successor unions and obtained through the time of the hearing. The bulletin boards of the company were used for Association notices. The U. R. A. received time to time advice on its affairs from the company's counsel. Minutes of committee meetings were prepared 'on company mimeograph machines., Super' visors, including acting dispatchers, foremen and starters, as well as officers of the Railways Company, were eligible 'to- become beneficial members and to vote on sick benefits,'but were not eligible to hold office. Company officials were present at practically every meeting of the General Committee. The practice, which was continued throughout the history of the successor unions, was for the members of the General Committee, after calling the meeting to order, to go into executive session, after which any of the general membership who might be in attendance were excluded. After discussion among the Committee members of such matters as were presented, the officials of the Railways Company were' called into the meeting. Occasionally the company officials attended the meetings from the beginning . , No public notices of the Committee meetings were posted and, as has been stated, the attendance by the rank and file of the membership was infrequent and extremely limited. There was, similarly, no public posting of the minutes of the Committee meetings. On at least one occasion a motion for the posting of minutes was rejected, by a vote of 22 to 8. ' 28 During the past 8 years the largest number of rank and file members to attend a meeting did not exceed 12, according to the testimony of Clarke, president of the Independent. 20 The first appeiirance of a provision for a check -off in the bylaws occurred in 1937 in the bylaws of the Independent Union. L THE BALTIMORE TRANSIT COMPANY 141 (2) Management's continuing domination of the B. T. E. A. in 1935 In July 1935, when the name of the United Railways and Electric Company of Baltimore was changed at the conclusion of the reorganization proceedings to the Baltimore Transit Company, the U. R. A.'s name was changed to the Baltimore Transit Employees Association. The new constitution and bylaws were, with minor variations, copies of the old. The provisions setting forth the Railways Company's contribution were continued substantially unchanged. The constitu- tion and bylaws were submitted to the company for approval by its Board of Directors. Potter, the company's vice president, stated at a meeting of the Board of Representatives on July 23, 1935, that they were "the same old company working for the same ideals and with only a new name." 80 At a meeting of the General Committee on August 13,' 1935, Potter stated that as vice president and general manager and ex-officio member of the General Com- mittee, he wished to cooperate to the extent of his ability with the newly elected Committee 'and that he looked for the cooperation of the members of that Com- mittee as had been given in the pastel (3) Domination and interference with the Independent in 1937 and thereafter There has- already been mentioned, in the discussion of the respondents' withdrawal from interstate activities on, July 17, 1937, the respondents' frank admission of their purpose to avoid the-incidence of the National Labor Rela- tions Act. That withdrawal had occurred shortly after the validity of the National Labor Relations Act had been sustained by the United States Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U. S. 1, on April 12, 1937. Duvall, the respondents' General Manager, testified that in 1937 "there was probably more unrest on this property, labor unrest, than had ever been before, in my time, . . There was talk and threats of strike in 1937 . . . There was talk of picketing our property." At the meeting of the General Committee on May 25, 1937, President, Shepp of the B. T. E. A. stated that for the previous 2 weeks he had been getting reports that both the C. I. O. and the A. F. of L^ were about to attempt to organize the employees of the Baltimore Transit Company and he suggested that the members of the Commit- tee give,ci reful consideration to ways and means of changing the constitution and bylaws "so that it complies in all respects with the law."," It is relevant to note the proximity in time of these events with the' date of the formation of the Independent Union of Transit Employees of Baltimore City, the constitution and bylaws of which were adopted on July 12, 1937, pursuant to a previous notice." On the following day, July 13, the B. T. E. A. passed a resolution that all of its assets be transferred to the newly formed Independent union. Tellers and judges of election at the election of July 12 were appoipted by the members of the General Committee of the B. T. E. A. The ballot was for the sole purpose of deciding whether to retain the old Baltimore Transit Employees 80 Minutes, General Committee meeting; July 23, 1935 81 Minutes, General Committee meeting, August 13, 1935. 82 Minutes, General Committee meeting, May 25, 1937. 33 A prior balloting on June 4, 1937 , had been halted upon the recommendation of Mr. Schauffler, Regional Director of the Fifth Region, for an ambiguous reference on the ballots to the N. L. R. A., I 1 ' 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association or to form the Independent Union 3° Although the new union was not formally recognized by- the respondents until November 2, it was in fact. recognized by them as the employees' exclusive bargaining agency from July 12, 1937, on. The committee that drafted the constitution and bylaws of the Inde- pendent was made up of representatives of the B. T. E. A. and used as a basis some of the old bylaws of the U. R A. and of the B. T. E. A. The new constitution and bylaws omitted the former provisions concerning company contributions, com- pany appointment of the secretary and treasurer, and company approval of the constitution and bylaws. That the changes were satisfactory to the company, and that the threat of outside organization referred to by Shepp had been -successfully countered, is evident from the following extract from the minutes of the meeting of June 22, 1937: "President Shepp reported that the new consti- tution and bylaws had been approved by the, Committee. General Manager and Vice President H. B. Potter talked briefly to the Committee and assured them of the cooperation of the company and said he was proud of the way the General Committee had reacted to an emergency." [Italics supplied.] In the minutes of the meeting of the General Committee of the moribund B. T. E. A. on July 13, 1937, there appears the following statement : "President Shepp explained that all members of the Baltimore Transit Employees Associa- tion who wanted to join the Independent Union of Transit Employees of Balti- more City must sign an application-and would in turn be given a union identifica- tion card." The minutes of the same meeting contain a recital that- members of the old association might join the\new union without the necessity of passing another medical examination. At the final meeting of the General Committee of/the B. T. E. A. Potter "said that in the new set-up his door would always be open and he pledged the entire cooperation of the company to the new set-up in the coming years." 83 Such a pronouncement is the antithesis of the requirement that the employer "mark the separation between the two organizations and, publicly (to) deprive the successor of the advantages of its apparently continued favor." 30 The last annual election of the representatives of the B. T. E. A. was held on August 3, 1936. As has been stated,, the constitution and bylaws of the Inde- pendent were adopted on July 12, 1937. Until the first annual election of mem- bers, of the Board of Representatives of the Independent on August 3, 1937, that is, from July 12, 1937, to August 3, 1937, all officers, and members of the General Committee of the B. T. E. A. continued to serve as officers and as members of the Board of Representatives, respectively, of the newly formed Independent. The respondents' donation of $30,000 annually provided for in the working agreements of 1930 and 1937,-between the respondents and' the B. T. E A, were continued from July 1937 to December i937 and paid to the Independent. There- after, the respondents assumed-the burden of the cost of hospitalization, nursing, medical and dental charges, and the Independent continued to defray the cost of sick benefits and death benefits. A 34 The vote of a membership of 3,000 was 2,540 yes, 2 no, 184 blank: Participation by employees under such circumstances does not indicate free choice, since their only choice is either to vote or not to vote under the plan. If the employees were dissati:,fled with the old union their only choice was to accept that which was now presented to them ; there was no opportunity for the choice of a different new union Minutes, General Committee Meeting of Baltimore Transit Employees Association, July 27, 1938. , 3° Westinghouse Electric it Manufacturing Company v. National Labor 'Relations Board, 112 F. (2d) 657 (C C. A. 2), aff;d (per curiam) 312 U. S 660; See also National Labor Relations Board V. Newport News Shipbuilding it Dry Dock Co, 308 U. S. 241 ; National Labor Relations Board V. Link-Belt Co., 311 U. S 584; Western Union Telegraph Co. v. National Labor Relations Board, 113 F. (2d) 992 (C. C.`A`. 2). THE BALTIMORE TRANSIT , COMPANY 1431, At its organization in July 1937 the Independent had its offices in the Knicker- bocker Building along with the Credit Union, hereinafter described, the two organizations occupying the front and rear offices of a large room. Shortly after November 1, 1938, both the Independent and the Credit Union moved to the sixth floor of the Equitable Building. Quarters on the fourth, and fifth floors of the Equitable Building were then being renovated for the occupation of the respond- ents and the first section of the company to move commenced occupying its quarters immediately after the Independent and Credit Union. The Independent paid lent only for a small office in the sum of $37.50 monthly, the rest of the space being contributed free of charge by the respondents. The method of conducting the meetings of the old U. R. A. has been continued by the Independent. At the present time, meetings of the Board of Representa- tives of the Independent are held in the respondents' assembly room on the fourth floor. Duvall's office is on the fifth floor. Twice a month at Board meetings the Independent sends for him and other company officials to discuss problems. Until May 1, 1942, every supervisory official of the respondents was a non-voting, or "beneficial," member, as they continue to be up to the present time with the exception of Duvall, the general manager, and Hill, the president. (4) The Credit Union A company benefit plan became effective April 1,,1922. Collections were made through the company paymaster. The Credit Union, formed in 1935 by eight committee members of the B. T. E. A , continued the provisions of the company benefit plan. Oiily members of the B. T. E. A. in good standing were entitled to loans n The relationship between the Credit Union and the Independent is close. As has been stated, their offices were until recently adjoining, in different parts of the same large room. $20,000 of the funds of the Independent have been invested in the Credit Union. Trageser, resident counsel since October, 1926, for the respondents and their predecessor, was counsel for the Credit Union. Loans from the Credit Union to the respondents' employees were subject to the approval of the Company S8 (5) The respondents' financial support of the U R A, of the B: T. E. A., and of the Independent It was specifically provided in the constitution and bylaws of the U. R. A. that "The Railways Company shall continue pensions and insurance at its own expense and will contribute not less than $1,000 a month toward the sick benefit fund" ;• also "The expenses-of carrying on the Association-except insofar as defrayed by the said monthly assessments-shall be borne by the Company." The contribu- tion was soon increased. The minutes of the General Committee meeting of February 24, 1920, when the dues were raised from 50 cents to $1.00 a month, con- tain the following statement: - Assistant to President L. H. Palmer read a letter from President Emmons of the Railway Company, stating that the Board of Directors of the Railway Company has agreed to increase its monthly contribution to the Association from $1,000 to $1,500 provided members' monthly dues are increased to $1.00 In the minutes of the General Committee meeting of March 10, 1920,, appears the following extract from a letter written to the Committee by the President of the Company : 81 Minutes of General Committee meeting, October 8, 1935. "Minutes of General Committee meeting, March 23, 1920 144 _ \ ^ T1 DECISIONS OF NATIONAL LABOR RE LATIONS BOARD It' gives me pleasure to advise that the Board of -Directors of the United Rail- ways and' Electric Company have ratified the proposed amendments to the Constitution and By-laws of the United Railways Association, approving the increase in the amount of dues to not more than $1.00 a month * * * I think your members will be interested in knowing that for the first year of the Association which ended last October the members paid in dues about $22,000 and the United Railways Company expended for insurance benefits and-other forms of welfare and the expenses of the welfare department, $66,000, in round figures. A pension system established by the company in 1914 grew into the welfare department, organized in September 1916. From that date until the organization of the first employees' association in the summer of 1918 the company directly supported the hospitalization and other 'welfare work:' In 1918 those activities were transferred to the U. R. A. They were conducted by that association and, its successor, the B. T. E. A., and for a period of a few months by the Independent, and were then resumed by the company in the latter part of 1937.- - It is the respondents' contention that the contributions by them to the U. R. A. and its successors during the period from the fall of 1918 to the fall of 1937 were exclusively for hospitalization and medical, dental, and nursing service, and should not therefore be considered to be financial contributions for the general support of 'the unions. However, the disbursement of the contributions was handled by the Independent without any check by the company as to whether or not the money was expended for welfare. • The agreement of 1935 moreover provided that the company donates $30,000,a year "to further the, Association as the bargaining agency for its employees, with reference to wages, hours, and working conditions." The Trial Examiner finds that the contributions of the company were made to the-unions not, as the respondents contend, as the company's disbursing agent, but were contributions for the general purpose of strengthening the company's domination and. support of the labor organ- izations. Additional contributions were made from time to time. The minutes of the meeting of March 13, 1928, of the general committee of the U. R. A., contain the following recital : To relieve the Association (U. R A.) of the necessity of holding a raffle ,of automobiles in connection with the' coming picnic, the General Manager answered that the approval of the President and of the Executive Committee of the United Railways had been secured for the appropriation of $1,000 additional per month to the general funds of the Association. - Other contributions by the respondents to the financial support of the Inde- pendent consisted of the financing of picnics of the Independent, an outing at Atlantic City for the Board of Representatives, and various banquets given in Baltimore to the members of the Board of Representatives. An. additional kind of indirect assistance consisted of permission to maintain cigarette and candy slot machines on company property, rent free as (6) The "bargaining" process employed The following extracts from the minutes of the meetings of the General Com- mittee and of the Board of Representatives of the Independent exemplify the bargaining process employed. The minutes of the meeting of July 8, 1941, con- 89 The Union's income from 17 to 18, candy, vending machines located on respondents' property is approximately $128 a,month On the effect of such assistance, see Matter of Curtis-Wright Corporation, 39 N. L. R. B. 992, 1009. THE BALTIMORE TRANSIT COMPANY , 145k taro the following statement: "Vice-president Stockman asked Mr. Duvall just how far he considered a representative could go in representing a man; that several representatives had been told'that thing brought up was not their busi- ness, and' that it was the opinion of the Board that anything that concerns an employee is the representatives' business. Mr. Duvall said his door was open to all representatives at all times, but, of course, there were matters that he could not-let a representative have any voice in." [Italics supplied.] The policy underlying this frank expression evidently had been long under- stood, however, by the representatives, under the U.*IL A. and B. T. E. A., as is indicated by the following extracts from the minutes. Minutes of special wage committee meeting of November 15, 1922. Officers of the company were present. After a thorough discussion the management was called back and Chairman Manion reported that the General Committee had unanimously decided to accept President Emmons' proposal with the request that certain inequalities of wages in some of the departments be readjusted * * * President Emmons then very heartily thanked the General Committee for their fair- mindedness and cooperation. Report of wage committee, December 15, 1926: i An increase in wages of 3 cents an hour was requested. It was realized by the Committee that in the Company's present earning condition no such increase in wages is possible, unless there is an increase in fare. The Committee did not desire to suggest to Baltimore car riders an increase in fare at this time due to increased rate of wages * * _ * They therefore agree to cooperate with President Emmons and the management of the Company to enter into a two-year agreement for an increase of one cent an hour'in 1927 and an additional cent in 1928. Minutes of meeting of General Committee of December 9, 1930: Committeeman Strasbaugh explained that the question of restoring a 50-hour week at the Shops had been taken up with the Superintendent of Shops by Committeemen McCloskey, Hoffman and himself. It was found that the Shops' budget could not possibly be increased and that in order to restore the 50-hour week it would be necessary to throw out of employment 37 shop men, 22 carhouse shopmen, and 13 car cleaners. The Shops Com- mitteemen feel this would be unwise as well as inhumane -at this time and that they have agreed that the 40-hour week should be continued until- conditions are more favorable for a change. Minutes of meeting of the General Committee of the B. T. E. A., September 10, 1935: Mr. Potter was asked by various members of the Committee if the recent wage increase granted employees of the Washington Transit Company would in any way effect (sic) the employees of the Baltimore Transit Company. The General Manager pointed out that every city must make comparison within its own limits as conditions in every city are different * * * He stated that it is far better to work for a fair rate of wage and assure the success of the Company than to insist on some impracticable wage. rate which would result in nothing but disaster. Minutes of. the meeting of Board of Representatives of the Independent Union, November 25, 1938: 513024-43-vol, 47-10 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DULANEY. I think operators of 1-man cars should get 75 cents per hour and 2-man operations 70 cents per hour. STOCKMAN. Mr. Duvall has said the lines are in the red this year, so I think 65 cents and 70 cents per hour should, be a fair wage. After discussion Potter and Duvall were asked to step outside. Mr. Potter and Mr. Duvall was called back to the meeting. Chairman Haymaker addressed Mr. Potter stating the members of-the Committee have gone on record asking the Company fora raise of 3 cents per hour for transportation department and a proportionate raise for the miscellaneous departments. Mr. Potter replied he could see why they were asking for a 3 cent raise * *, I must tell you there isn't a thing in sight. I want you to sign the same \wage agreement for 1939 as you did in 1938. - I Mr. Potter was again asked to leave the room. Upon his'return: Chairman Haymaker addressed Mr. 'Potter by saying : Mr. Potter, our men feel they should have a raise, but after you told them there was nothing in sight, they have faith in you and have decided to accept the same agree- ment as we had last year. - 1 In the minutes of October 11,, 1938, we find the following discussion : Representative Pennington brings up the subject of holding all meetings of Board and sub-committees in Court Square 'Building. He stated this matter had been tabled at the last meeting and he was' anxious to know what is to be done about it; Mr. Pennington lead an attack on the move to hold all meetings in Court' Square. Representative Barlipp also challenged the move to hold all meetings in Court Square. Representative Bedell spoke in favor of returning to Court Square stating we were not independent anyway so why make believe. After so much opposition was shown Repre- sentative Moser withdrew his motion, and the subject was dropped. (Italics supplied.) - ' a. Annual agreements The respondents have entered into annual agreements,with each of the organi- zations. Paragraph 1 of the agreement of 1935, with the U. R. A., states : The Company shall, and does hereby, recognize the association as the representative of all the employees of said Company and its competency to negotiate for all employees of said Company in all matters pertaining to. working conditions, wages, and the interest'in general of said employees; and to further this purpose, Company agrees to contribute Thirty Thousand Dollars ($30,000) per annum to the funds' of said Association, together with such additional sums of money as shall'be necessary from time to time to assist the Association in carrying on its work. Each of the annual agreements has contained the provision that the respond- ents recognize the then-existing organization as the exclusive representative for all their employees, for the purposes of collective bargaining. The current contract, entitled "Working Conditions Agreement" was entered into between the respondents and the Independent on January 22, 1942. b. Conclusions as to "bargaining" Although lip-service was paid to the -concept of bargaining in good faith, there was no bargaining In fact. Requests , by the representatives were granted or denied by the company officials, whose decisions were final. Neither denials nor THE BALTIMORE TRANSIT COMPANY 147 modifications of requests concerning wages or conditions of employment were ever transmitted during the 25-year history of the unions to the rank and file of the membership for their approval or disapproval. Counterpropositions by the employees' representatives are almost non-existent. When made they were made in an indecisive manner. The annual agreements with respondents were never submitted to the membership for their approval. The series of increases, in the form of a bonus rather than an increase in wages between February 24, 1942, and March 10, 1942, were made under the threat of pressure of the American Federa- tion of Labor for the organization of an outside union.40 Throughout the 25-year history of the employees' organizations there emerges a continuous pattern of pretended recognition of the collective bargaining rights of the employees as a means of preventing the exercise of such rights in fact. (7). The Representatives as agents of the respondents a. Control of the Representatives Prior to 1937 the purpose of the respondents was fairly unimpeded. The asso- ciations functioned as the figureheads of the employees, and the members of the General Committee, elected annually, served as the conduits for effectively grounding the as yet inarticulate demands of the employees for a voice in the bargaining process. Financial assistance and an orderly program of recognition and reward of the officers of the associations for loyalty, not to their constituents but to the respondents, by promotion to higher positions, constituted adequate preventive measures. , The period of depression following 1929 helped to defer the day of reckoning. In the spring of 1937, under the threat of outside organiza- tion, stronger measures became necessary. We find accordingly complaints by management that the representatives were spending too much of their time, paid for as it was by the respondents, in their activity of representing the rank and, file of the members of the Independent Union. Thus,on- September 13, 1937, at a meeting of the Board of Representatives, the presiding officer of which was H. B. Potter, the respondents' vice-president, the latter complained that the repre- sentatives were holding too many meetings. On March 8, 1938, Shepp transmitted to the Board a complaint of Potter to the effect that the week before "the committee had cost the Company $500" Shepp said the cost had been cut to $238 for the last week. Representative Moser stated he did not see why the Company should be so tight on the committee's time as the committee -had done a great deal for the Company in fighting outside labor organization." (Italics .supplied.) That the matter still rankled in the mind of Potter one week later, is indicated by the fact that at the meeting of March 15 he complained that "the cost was running over $500 a week." b. Use of Representatives as agents to lobby against National and State legislation During this period another threat was sought eto be averted by the respondents by employing the representatives to lobby in Washington against the prospective Wages and Hours Law, a method also used to avert threatened taxicab com- petition sponsored by a pending bill under discussion at Annapolis. , 40 Between February 24, 1942, and March 10, 1942, three bonuses, first of 4 percent, then of 6 percent, and finally of 20 percent, were voluntarily granted by the company. The bonuses were not added as the result of any written agreement, were revocable by; the Company at any time and were for that reason unsatisfactory to the employees as a substitute for a wage increase. l 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. The respondents' use of • Representatives to prevent organization of outside unions According to the minutes of January 24, 1939, Potter makes the following statement : - Why should I be a trouble shooter around here? * * * He referred to the labor paper that has been attacking the Union of late and said someone in this very room is feeding this stuff to these, people. The following statement appears in the minutes of the meeting of February 27, 1940: Mr.'Potter then gave a talk. The text of his talk was "Mind your own business." He said there were certain men who go around telling others that such and such is going to happen. These men are trouble shooters, and if any one in this room who the coat fits let him wear it * * *, What we need is less criticizing and more boosting. The minutes of the meeting 6f February 10, 1942, contain the following statement : - - ,J Thereupon Representative Perry made a motion, seconded by Representative Pennington to request the Company to issue a bulletin stating that employees may join any union they desire and that there will be no interference by the Company. President Clarke ruled the motion was out of order, but a motion to expel Perry and Pennington was passed, the vote being 14 in favor of the motion, 5 against, 1 absent, 11 not voting. Potter'was then called in and told what had occurred and the reasons for the expulsion. The minutes' continue as follows: Mr. Potter said' that was enough. That the Board had acted wisely * * * You both will regret this. You will be hated by your fellow workers, you have turned Judas * * * The other organization will not trust you after you have double-crossed this organization. At the meeting of February 17, 1942, Clarke said : "I think this is the time for the loyal men of the Company to get the six percent you promised us," to which Mr. Potter replied, "We have a fifth column in this organization * * * Those bastards were helping Hitler when they did this.41 In their efforts to discourage the organization of an outside union the respond- ents made use of the employees' representatives. An example is the exhorta- tion of President Clarke of the Independent to McHenry to withdraw from the Amalgamated.''2 A further example is Clarke's statement that certain named union organizers had been successfully weeded out two years before, and that now the Independent had also happily rid itself of Perry and Pennington. It 41 The only members ever expelled were men involved in the present proceeding, all of whom were active in the A . F. of L efforts to organize respondents' employees. Peacock resigned from the Independent Union. No attempt was made by the representatives to take up the reasons for the discharge of any of the others who had been expelled by the Inde- pendent. Clarke admitted that in the past 4 or 5 years he had taken up only two cases of discharges, and those men were not reinstated. Clarke himself decided whether the discharged employees had justifiable grievances . One of them admitted his fault . Clarke never saw the other man and never took'up any cases with the Board of Representatives. There is a significant correlation in the dates when Duvall had warned Pennington , February 7. 1942, and the date of his expulsion from the union, February 10. The first expulsion Pennington had ever attended was his own. 12Zumbrun, a committeeman , was present at that conversation, which was held in Woolston's office, and the respondents must be deemed responsible for' the utterances of both Clarke and Zumbrun equally. THE BALTIMORE TRANSIT COMPANY 149 must not be forgotten that Clarke was vested by the company with almost unlimited powers to call out any number of representatives for such periods of time as he chose and for such duties in connection with the Independent as Clarke might assign to them" Similar statements- hostile to efforts in the direction of outside organization were :made by President Shepp The efforts of these men and other members of the board of representatives were conducted on company time for which they were being paid by the respondents and in the background of a record and implicit promise of promotion of those union officials who most loyally served the respondents' interests." ,The respondents cannot avoid responsibility for the statements made by these men in derogation of the right 'of self-organization guaranteed by the Act. The statements were obyiously inspired by repeated exhortations of Duvall, Potter and others, urging the suppression of efforts to form outside unions. As a result, the statements by the representatives, otherwise permissible, became tainted and were equivalent to corresponding expressions by the company officials themselves.'s Therefore the Trial Examiner concludes and finds that the repre- sentatives have served, and are serving, as agents of the respondents in further- ing the respondents ' antiunion policies. CONCLUSIONS IN SUMMARY While the respondents may not be held accountable for unfair labor practices engaged in before the effective date of the Act, July 5, 1935, the above' facts relating to the U. R. A. serve as a background against. which to appraise the respondents' conduct since passage of the Act. - It is plain, however, that the U. R. A., the B. T. E. A. and the Independent, except for minor administrative changes, were and are the same organizations under different names. No distinct line of cleavage was made apparent. At no time have the respondents withdrawn their support and domination, nor have they at any time openly disavowed their parenthood of the organization of which the present Independent is the direct descendant. Dues continue to be deducted from each employee's pay for the support of an organization orig- inally conceived, planned, inaugurated, established and continuously dominated, interfered with, and supported by the respondents.' Therefore the Trial Examiner concludes and finds that the respondents have dominated and interfered with the formation and administration of the U. R. A., the B. T. E A. and the Independent; and have contributed financial and other support thereto, and that the respondents thereby interfered with, restrained, 43 Zumbrun and Pittinger were called off their jobs by Clarke for periods of from 4 to 6 weeks for union work , and were paid for their time by the respondents. 44 Four presidents of the Independent Union or its predecessors were promoted after leaving office. Joseph A. Flaherty was appointed instructor immediately upon completing his term as president . He was told, at the conclusion of the last meeting at which he presided , August 13, 1940, of his promotion to motorman instructor, a job for which he had applied while president. Shepp , after an interval , became a foreman . Smith was made clerk of the record office, and Wolf became superintendent of personnel . From 193.5 up to the incumbency of Clarke, now president, each president has been appointed to a supervisory job on the expiration of his term. The cards from which thei company 's promotion list -was made up show in each case an entry that the employee was a member of the Independent Union. 45 "The employer * * * may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or 'might not be attributable to him on strict application of the rule of respondent superior," International Association of Machinists , etc. v. N. L. R. R, 311 U . S. 72. Clarke and Zumbrun were certainly "in a strategic position to translate to their subordinates the policies and desires of the management," id. 150 DECIk IONS OF NATIONAL LABOR RELATIONS BOARD and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The Trial Examiner further finds that the agreements entered into between the respondents and the Independent and the contractural relationship existing thereunder, have been and are a mean of utilizing an employer-dominated organ- ization to frustrate the exercise by the respondents' employees of the rights guaranteed in Section 7 of the Act. _ B. Organizational efforts of the Amalgamated in 1937,; acts of interference, restraint and coercion k (1) Duvall's coercive interviews with union members In May 1937, an international organizer for the Amalgamated came to Balti- more to direct organization of the respondents' employees. During the following weeks, meetings were held, a few employees joined, and a charter was issued Before the organizational effort failed, as described below, 24 employees applied for membership. Among those joining the Amalgamated at this-time was einployee Wallace. The only other employee present, when Wallace signed his application, was Walter Peregoy, then a non-supervisory employee, but soon thereafter promoted to instructor. Wallace told no one about his act. Sometime later Wallace was told, by Instructor Ayres to go,to Duvall's office's Employees O'Connor and Bowman also joined the Amalgamated. Sometime after joining both were ordered to Duvall's office, O'Connor by either his dispatcher or line superin- tendent, and Bowman by line superintendent Moore.`? Three or four other transportation'- employees were in Duvall' s office when Wallace arrived Duvall told Wallace, "I heard you joined the union," and when Wallace admitted it, the superintendent asked what he got "for (his) two bucks." " Duvall then gave him a talking to and clearly implied to the employee that he wanted him to belong to no union but the Independent, the benefits of which he extolled. Duvall further told'him and the other employees present that if they did the right thing, they would have steady jobs. Wallace promptly abandoned the union. When O'Connor made his visit to Duvall's office he also,was with a group of other employees who likewise had joined the Amalgamated. Duvall told the group that he had called them down to see why they had gotten " mixed up in this trouble", and to ask each why he had joined the outside labor movement. Duvall. finally declared that if the men could help themselves by joining an outside union, he would not stand in the way, but he did not, see how they could get more benefits than they were already receiving. O'Connor thereafter dropped his union membership. When employee Bowman reached Duvall's office he was told by the superin- tendent that he had a list of the employees who signed in the union. Bowman admitted that he had joined, and said that he was sorry. Duvall then told him to go back to work and keep his mouth shut. During the hearing Duvall produced a list, made in 1937, of 24 employees whom he said he had learned had joined the Amalgamated. It tallies identically with that produced by the Amalgamated of, all employees of the respondents who signed applications during that period. 40 Although Ayres was in the courtroom during most of the hearing, he was not called, as a witness. " Bowman 's testimony on this point was uncontradicted. 11 Duvall admitted asking Wallace this question. THE BALTIMORE TRANSIT COMPANY 151 J Soon after the interviews Duvall had with the employees the Amalgamated ceased to hold meetings . The charter was returned , and the organization became inactive until 1941. (2) Testimony of Duvall and Peregoy as to these interviews Duvall testified that during the summer of 1937 nineteen employees "rushed into" his office, voluntarily, singly and in groups, and told him they had joined the Amalgamated. He maintained that he told them there was nothing he could do about it. He further testified that he made a note of each employee as he was interviewed, and thereafter made up a list of all. His list also included the names of 5 employees whom he had been informed, by some of the 19, had joined the union but whom he did not talk to., Peregoy was among these five. Duvall denied receiving any information from Peregoy and denied that Ayres sent any of the employees to him. He admitted, however, talking with Ayres about the matter, stating : I think I did discuss this with Mr. Ayres because I think he knew all these men and I think they talked to him, some of them. He was originally on one of the lines operating from that base and a good many of_these men were men from the Edmondston Avenue base and I think from what he has told me that some of them talked to him. He didn't bring this to me. Later he admitted that Ayres himself came in with one group of employees. 'When asked by counsel for the Board : Have any of your superintendents or supervisors reported to you that any of these men have been active on behalf of the A. F. L. now? Duvall replied : I don't recall that my attention was ever called to these men conducting themselves in an improper manner at all since that time. Peregoy, promoted to an instructor a few months after the foregoing events, admitted knowing some of them listed by Duvall and having -seen them at union meetings he attended. He denied reporting the names of the union members to Duvall. However, he admitted that at the time Duvall told him of his promotion, the superintendent also told him that he had talked to the other 19 union members. Since 1937 Ayres has been promoted to chief instructor. Peregoy serves under_ him. As found below, both Ayres and Peregoy figure prominently in Duvall's anti-union hostility in 1941 and 1942. (3) Conclusions as to these acts of coercion From the admissions of both Duvall and Peregoy it is reasonable to believe that the latter obtained accurate information as to the identity of his fellow union members and that this information was forwarded, by him to Duvall, whether through Ayres or otherwise. ` The spectacle of 19 men "rushing" into Duvall's office to confess voluntarily their union membership defies all human probabilities. They were plainly sum- moned by.Duvall and, instead of confiding in him, were informed that he was already aware of their union affiliation That Duvall left no doubt in their minds as to the course that must follow, if they wished to remain on the respond- ents' payroll, is shown by the fact that all promptly dropped out of the organization. It is also found that Peregoy,,in informing upon his fellow employees, was acting as an agent of the respondents, and that for his services he was thereafter promoted. 152 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD The Trial Examiner concludes and,finds that, by the action and remarks of Duvall, Ayres and Peregoy, noted above, the respondents have interfered with, restrained and coerced their employees in the exercise,of rights guaranteed to them by Section 7 of the Act. C. The discriminatory discharges (1) Background of discharges in 1941 a. The respondents' general practice as to "briefs" Whenever a supervisor desires to bring management's attention to violation, of one or more of the company's 293 operating rules by any employee, the re- spondents' general practice is to have a form entitled "Transportation Depart- ment Brief" filled out by the observer of the violation. On the brief is noted the man's name or badge number, a short description of the violation, and the sig- nature of the supervisor observing it. These reports are turned over to the particular line 'superintendent having -direct supervision over the' employee involved. According to Duvall, the superintendent is supposed to interview the employee, and note upon the brief what action, if any, is taken: The brief is then turned over to a dispatcher or clerk and a digest of its text is posted by him in a looseleaf ledger, called "deportment records." Usually within a period of 30 days the briefs themselves are destroyed, and the loose-leaf ledger sheets are retained for three years. According to Duvall, the line superintendent handles the briefs, but if a violation is of sufficient importance he confers with the Super- visor, who may, if his judgment so decides, then take the matter up with the superintendent of transportation. Ordinarily, also, the line superintendent inter- views the employee within a day or two after the brief is received. However, if the violations are not important, according to Duvall, several days may elapse before the employee is interviewed. Also, according to Duvall, for some briefs the employee is only talked to, with no discipline administered at all." For others, he may be cautioned or repri- manded. In'still other instances, he may be suspended,."either outright or on trippers, usually trippers " Assignment to trippers is ordinarily made in the cases of operators who report in late for their own runs. He then'takes out short runs during the day, and may or may not get'as much time in as he would have; -had he not reported late. Line superintendent Wisner testified' that sometimes a -man "suspended" to trippers, actually makes more money than on regular runs. ` Infraction of operating rules has been, and continues to be, a not uncommon practice among the respondents' employees, and the practice is well known to management. Indeed, Superintendent Woolston candidly stated that "some men would give you a chance to write 20" briefs against them in a single night, "if - you were out to see how many times he would violate, and you would follow him out." Superintendent Wisner admitted that when he was a conductor he did not call all stops. Superintendent Weisheit testified that, "a lot of men are guilty" of the infraction of running "sharp", or 'ahead of time, and further stated, "There is nothing unusual for a man getting ahead of time.", ' Although Duvall declared that violations of the type charged against the employees whose discharges are involved in these proceedings, lead to accidents, he admitted that none of the infractions hereinafter listed from the deportment records of specific employees, actually led to accidents. From Woolston's 'testimony, above quoted,-it may reasonably be inferred that inspectors, instructors, and others do not make a general practice of following THE BALTIMORE TRANSIT COMPANY 153 operators for the sole purpose of recording every, violation of rules they may observe. The record of no one of the discharged employees here involved shows as many as 20 briefs in one night, or in one day. Inspector Graves, called by the respondents to testify on other matters, was asked on cross examination if he wrote briefs on men where they did not call streets. He replied, "Well, what do you' want to do? Hound a man because he missed a street occasionally? We don't believe in that." b. Discharges, 1940-1942, other than those involved in these proceedings. The respondents contend that most of the employees alleged by the complaint to have been discriminatorily discharged in 1941 and 1942, were dismissed be- cause of their deportment records. Before determining the merits of each case alleged by the Board to be an 8 (3) discharge, the Trial Examiner considers it essential to determine what the respondents' practice is, and has been, in respect to all other discharges of recent date.' Therefore, immediately below is a sum- mary of evidence relevant to this matter. The summary includes information appearing upon each former employee's record, as well as Duvall's ' testimony with respect to the discharge. Name Date employed Date dismissed Card record Duvall's comment Rigney--------- 5/19/21 8/30/40 Repeatedly violating rules --______ Unsafe practices-bad record Watson________ 6/24/24 3/ 4/40 Generally bad record 46 violations for last few years. Continued bad record through- in '39 11 in '40. out 1939 and 1940, until Laird, G J_____ 2/18/19 3/14/40 Stayed away without permission-- discharged Went away on a trip without Wright--------- G/ 9/25 10/11/40 Away from home while off Also permission Knew drinking to excess while eterson ____c__ 2/22/27 2/19/40 admitted he was drinking and did not see Dr Knapp except to get release Past record had In saloon in uniform and drinking off. Brougli-________ 12/7/39 6/ 4/40 dui mg working hours. Rear-end car collision_____________ Schaefer-------- 11/10/25 5/31/40 Assaulting another employee------ Pensker__ _ _ _ _ _ _ 2/4/26 5/31/40 Accident, boy killed. Previous Barlipp________ 8/4/25 5/10/40 had record High accident record______________ Former chauffeur, could not Maykrantz_____ 7/8/26 5/ 3/40 Services not satisfactory----------- learn rail operation Prefers not to disclose real Brandt_________ 7/18/22 5/ 6/40 ----- do ----------------------------- reason, not similar to any case in these proceedings. Do. Weseka________ 10/26/26 2/17/40 -----do ----------------------------- Do. Thomas________ 9/ 9/20 4/ 1/40 Failing to work____________________ Had not worked much more Estep ---_______ 7/21/25 2/14/40 , Drinking in full uniform---------- than half time since 1936. Just___ ___ 2/24/27 1/19/40 Went on vacation for 1 week Callery_________ 12/ 8/20 1/ 8/40 11/12/39, not heard from since. Excessive drunkenness------------ Periodic sprees for several years. Gemmill_____-_ 2/ 3/19 1/ 5/40 Taken off car, drunk______________ Had accident while drunk. Miller -------___ 1/ 2/40 12/26/41 Stayed away Christmas. Said Sparks_________ 8/11/41 12/30/41 didn't like lob anyway. Trifling, would not work---------- Bass________ 7/27/39 12/11/41 Failing to report for work, trifling-_ Romberger_ _ _ 9/18/41 12/ 5/41 Disappeared 11/1/41 with equip- Barga__ ________ 6/26/23 8/28/41 ment, cannot locate Disappeared from home 5/18/41, Mental case, held lob open long Cardwell------- 2/23/40 7/ 2/41 has not reported back for work. Frequent missing of runs---------- time. ' Sheets__________ 11/ 2/26 3/17/41 Has not worked since 1/6/41. Job him. Never able to contact Jackson-------- 5/ 6/30 6/30/41 with another company. Trifling, continually on short list Farace_________ 2/16/28 9/ 4/41 Went away with half-day's re- ceipts Trifling, would not work---------- Smith__________ 2/ 5/41 9/ 5/41 Refusing to work----------------- Mettle-_____j__ 9/26/29 10/ 3/41 Last a orked 8/28/41, cannot be Harp ---------- 9/ 2/41 10/ 6/41 located. Reference not satisfactory -------- New man. Gray ----------- 2/17/30 7/17/41 .Excessive drinking, assaulted em- ployee while drunk off duty. 1 r 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Name Date employed Date dismissed Card record Duvall's comment Anderson--____ 10/30/23 2/14/41 Not satisfactory___________________ Would rather not disclose real reason. Case not similar to ' any case here involved. Per Dieu ------- 9/24/29 7/ 8/41 Violation of rules------------------ Do. Byrne --------- 9/16/17 4/14/42 Trifling and drinking, habitual Periodic sprees, previously drinker, warned. Laird, L L---- 4/10/41 2/25/42 Intoxicated while on duty --------- Dise----------- 3/11/30 2/12/42 Failed to report and make turn-in Excessive drinking. for run after missing second part due to over-indulgence Kane ---------- 1/14/41 2/10/42 Intoxicated when reported for duty. Macauley__---- 7/21/41 1/ 3/42 Intoxicated while operating bus--- Accident, arrested, fined, went to jail. Waters------_-_ 3/ 4/42 4/25/42 Intoxicated when reporting at car house Brown --------- - 3/10/25 4/17/42 Working at another position while Tending bar, would not come on sick leave back to work. Dawson -------- 1/ 2/41 2/20/42 Refused to finish out run_-------- Grams--------- 12/ 5/41 3/ 4/42 Would not work, could not keep off short list. Lippy-- ------ ; -6/ 8/26 1/22/42 Violation of regulations-_e_____-__ Does not wish to disclose real reason-not similar to any case here involved. Although Duvall testified, at one point in his examination, that he had dis- charged men for violations of all sorts of rules, during his testimony on the fore- going list of discharges he admitted that "I don't think we had a single man who was dismissed for identically the same, thing that these men (those involved in these proceedings) were because we didn't have any men who behaved as these men behaved." C. Efforts of the respondents'•employees in 1941 to organize in the Teamster's In 1941 another'abortive effort was made by a few of the respondents' employees, mainly assigned to the Potomac and Bush street terminals, to organize in an outside union. Assuming leadership in this enterprise was Arthur W. Rawlings, a bus driver of 19 years service with the respondents. Rawlings was later joined by George H. May, operator of a trackless trolley and,George W. Silberzahn, bus 'driver. The subsequent discharges of all three are discussed below. Early in March, after discussing organizing possibilities with May and other employees, Rawlings sought assistance from Harry Cohen. then head of 'the Teamster's union in Baltimore.? Cohen sent for an organizer of the Amalgamated, and in mid March a meeting for Potomac Street employees was arranged to' be held at the home of a friend of Rawlings. May was unable to attend. A number of others invited did not show up. Duvall was outside the meeting place, a fact which was reported to Rawlings by employee Boyle,.who had not come in because of Duvall's presence in the vicinity.60 The Amalgamated organizer left Baltimore, and no more meetings were held until fall. 1 During the summer, however, May obtained membership applications from Cohen and organizer Jantz of the Teamsters, and solicited interest among em- ployees in that organization. Among other employees, May and Rawlings elicited the interest of Silberzahn, who worked out of the Bush Street terminal during the latter part of September. 40 Local Union No 355, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men; & Helpers. I so Duvall aemitted being in the vicinity, and seeing Boyle, but denied knowing anything about the union meeting. He testified that he had come to the spot as a result of an "anonymous" telephone 'call that "there would be something going on,there that I ought to see, that,our men would be involved in." The,Examiner cannot accept Duvall's explanation as reasonable, in view of his previously established anti-union hostility. THE BALTIMORE TRANSIT COMPANY . 155 May was discharged on September 25. On or about October 8 some 15 employees, including Rawlings and Silberzahn, met at his home. A Teamster's representative was present. Rawlings, May, Silberzahn and most of the other employees present signed applications for membership on this occasion. During the course of the meeting Woolston, May's line superintendent, was observed walking back and forth across the street by Mrs May, May, and Rawlings while during the same evening May discovered chief supervisor Seth standing in the alley adjacent to the house" About a week later the same group, including Rawlings and Silber- zahn, met in a room over a cafe. And a few days later a meeting was held at Rawling's home, which was attended by only four or five employees. Silberzahn was discharged on October 14, and Rawlings on November 6. The effort to organize in the Teamsters' local had proved abortive. (2) Discharge of George H May a. Events leading up to the discharge May was first employed by the respondents in March, 1940, as a trackless trolley operator. After a short period as an extra, he was assigned to a regular run, from the Potomac Street garage under line superintendent Woolston. As found above, during the summer of 1941 May actively engaged in an effort to revive interest among his fellow-employees in the Teamsters union, talking to them at the end of his run and visiting them at their homes. His efforts had scant results, however, the employees telling .him that they were afraid of being fired. During the latter part of August or early in September, May tried to elicit the interest of Pittinger,-Independent representative at this location, in the union. About 2 weeks before his discharge, while May was talking to a group of employees about the Teamsters, in front of dispatcher Wise's office or "cage" Wise interrupted to declare that the Baltimore Transit would never stand for an outside union 52 / Within 3 or 4 days after the remark by Wise, many briefs began to be filed against May, almost daily, although the only other brief since mid-April had been filed on August 28. Between September 15 and 24, according to records submitted by the respondents, 20 briefs were filed. May, however, was not interviewed by Woolston, as had been the previous practice, `on any of. these alleged violations. On the morning of September 25, as he reported for his run, May was sent to Duvall's office by the dispatcher. Duvall informed the employee that he had a number of briefs against him, citing the nature of a few, and asked him if he could think of any reason why he should not be dismissed. May replied,that he could think of a good reason, his nine-week old baby Duvall declared that this was no reason, and told May that he was discharged. ` Si The findings as to this surveillance by Woolston and Sotb are based upon the credible testimony of Mr and Mrs May, Rawlings and Silberzahn. Both Woolston and Seth denied being at this point Woolston's testimony, where uncorroborated, ' was generally untrust- worthy As -established in many details hereinafter, Woolston played an active part in Duvall's campaign against the Union in 1942 Soth, who had ,general supervision "on the outside", as he testified, "to see that the duties of the company were carried out." admitted that at the time of the meeting he had heard that the men were trying to organize 51 The finding rests upon May's credible testimony Wise denied making the statement In view of the established fact that the superintendent of transportation had already demon- strated the respondents' hostility toward outside unions, it is reasonable to believe that his subordinates freely reflected his attitude, and the Trial Examiner rejects the denial. 1- 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As May went out, he turned to Duvall and asked, "Why don't you tell me I was fired for the union," and Duvall answered, "Well, that could be a reason." b° Duvall then instructed May to turn his bus over to Woolston. That afternoon Woolston asked May what he planned to do. May replied that the Teamsters would get him work, and Woolston commented, "Maybe if you had left the union go, you would have had a job." _ b. The respondents' contentions and testimony as to May's discharge May's personnel record bears the notion : "9/25/41-Dismissed for continued violation of rules." Duvall testified that he had had May's deportment record, brought to him before the employee's discharge, and on September 25 confronted May with the 20 violations dated from September 15 on. He testified that he "went into the violations with May in detail . . . and he did not deny that he had done the very things that he had been reported for." Duvall further testified that he saw May "chasing his-leader at a reckless speed" the very morning he was dismissed, and that because the employee had piled up such a bad record he dismissed him. Woolston testified that he was consulted by Duvall before May's discharge and that he had called Martin's attention to many briefs filed against the employee. The Trial Examiner finds the testimony of both Duvall and Woolston unre- liable. May's testimony is unrefuted that upon reporting for work that morning be had been ordered to report to Duvall and laid off until he had seen the super- intendent' of transportation. He could hardly have been seen driving a bus recklessly' when not working. As found above, briefs are ordinarily handled, by the, line superintendent. If the testimony of the respondents' witnesses is to be believed, this practice is altered only if the violations are serious or unusually accumulative. Woolston's testimony, therefore, implies that May's case was taken out of his hands because of unusual circumstances. The employee's 1941 deportment record, as produced by the respondents, is as follows : Jan. 17 Running 2 min. ahead of time. Jan. 17 Failed to stop at R. T. crossing. Jan. 20 Failed to observe traffic light. Apr. 12 Failed to pull to curb. Apr. 17 Smoking cigarette while operating trolley. Aug. 28 Made a sudden stop to avoid hitting a horse, throwing passengers around. Sep. 15 Failed to display proper destination sign. Sep. 15 Running ahead of time on trip to garage. Sep. 18 Talking with pass., sitting in back of him while operating T. T. across intersection. Sep. 18 Left end of line 2 min. ahead of time. _ Sep 18 Arrived in garage 5 min. ahead of time on last trip. Sep. 18 Running 3 min. ahead of time. Sep.,18 Left end of line 1 min. late. Sep. 20 Running 11/ min. ahead of time. - Sep. 22 Failed to stop at R. R crossing. Sep. 22 Working on manifest while operating T. T. Sep. 23 Talking to passenger while operating T. T. Sep 23 Operated T. T. across intersection full speed. ea The findings as to this interview rest upon May's credible testimony. Duvall's denial that he told the employee his union activity "could be a reason" is not accepted as true. Duvall's uncorroborated testimony was wholly untrustworthy. THE BALT1IMORE TRANSIT COMPANY 157 Sep. 23 Holding conversation with pass., while operating T. T. Sep. 23 Failed to pull to curb. Sep. 23 Failed to reduce speed crossing intersection. Sep. 24 Failed to pull to curb. Sep. 24' Failed to slow down at intersection operated recklessly Sep. 24 Following leader less than 15 feet behind him. Sep. 24 Ran away from colored pass. that was at entrance door when he started. Sep. 24 Failed to pull to curb. All entries from September 15 to 24 are bracketed as having been handled by Duvall on September 25. The record also establishes that between April 17 and September 15 May had been charged with but one violation. One violation surely is not "many". Nor does the nature of the violation of August 28- "Made a sudden stop to avoid hitting a horse-throwing passengers around," reasonably define it as "serious". As in all following cases of discharges discussed herein, the respondents failed to adduce substantial evidence that violations, as recorded on the deportment records, actually occurred, but only offered evidence that they were recorded; and as later found, the respondents admitted, at the hearing, errors in the record of Pennington, and palpable falsifications have been found in the record of Muel- ler. The Trial Examiner can place no reliance upon the deportment record of May, particularly from September 15 to the day of his discharge, since Duvall himself admitted that he could not testify as to the truth or falsity of any of the deportment records. It is not reasonable to believe that, in the absence of other and special circum- stances, Duvall would have discharged May on this record. It is found, there- fore, that May's deportment record served only as a convenient pretext for the employee's dismissal , that the real reason is to be found in other factors, and that there is no merit in the' respondents' contention that May was discharged because of violation of rules. C. Conclusions as-to May's discharge -As found above, shortly before his discharge May's union activity was made known both to representative Pittinger and to inspector Wise. In view of management's known antipathy to outside unions, and Duvall's own surveillance of the employees' meeting a few months before, it is reasonable to believe and the Trial Examiner finds, that information of May's conduct was transmitted to Duvall. Thereupon a record of alleged violations was accumulated, whether by actual surveillance of inspectors or by other methods. As found above, Woolston testified that it would be possible to write 20 briefs in a single night against an employee, if followed long enough. The Trial Examiner concludes and finds that the real reason for May's discharge on September 25 was his activity on behalf of the Teamsters union. 3. The discharge of George W. Silberzahn a. Events leading up to the `discharge Silberzahn was employed by the respondents on October 11, 1940, and was discharged on October 14, 1941. He was assigned as an extra bus driver, but worked regularly , out of the Bush Street garage. - Wisner was his line superintendent. - .. As found above, Silberzahn became interested in the efforts to organize in the Teamsters during the latter part of September . At the meeting held in 158 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD May's home on October 8, above described, he signed a membership application. On his way into May's home he saw Woolston outside." It is reasonable to infer, and it is so found( that Woolston also saw him. , Silberzahn thereafter signed the "off book",-a request to be off the following Sunday, October 12. When he noted, on Saturday, that he had been assigned to a run the next day, he protested to dispatcher Woolford. The dispatcher told him to call up on Sunday, and see whether or not he might be able to get off. As instructed, he called Woolford about an hour and a half before time, to report. Woolford told him he would have to\work, there being no one present to substitute. Silberzahn remarked, "That is a lot of crap,"-but reported for work. Woolford did not reprimand him when he reported, nor make com- ment upon his remark. Sometime later that day, Silberzahn went to the office for change, and remarked to acting-relief-dispatcher Hoffmaster that he was not going to work any more on Sundays. There is- no evidence that Hoffmaster ti took umbrage at this remark.- When Silberzahn reported for his run the next afternoon he was told, by the dispatcher to take the rest of the day off and report to Duvall the next morning, October 14. At Duvall's office he was told by the superintendent, after the latter had looked at his deportment record, that according to all his violations he should expect to be fired. Duvall then asked him about his telephone conversation with Woolford. Silberzahn readily admitted using the language attributed to him, but explained that such language was common among the men, and if Woolford had appeared angry, he would; have apologized. Martin, also present, reminded Silberzahn that he had told an acting dispatcher that he would work no more Sundays. Silberzahn also admitted having made this statement, but pointed out that he had said it to dispatchers before, that no young fellow wanted to work on Sunday, but that he had always reported as instructed. Duvall then dis- charged him. f b. The respondents' contentions and testimony as to his discharge. Duvall testified that Silberzahn was discharged for "insubordination". His personnel record bears the following notation "10/14/41-Dismissed by order from Main Office-Repeated violation of rules, constantly missing, ugly attitude." Duvall also testified that on Monday he received the following letter from Woolford : Chauffeur,G. Silberzahn, badge #74, called on the telephone-at 12 Noon and asked off. • I told him I could not let him off and be said, "How about the 1 o'clock man". I then told him that I had a day's work for the 1:00 P. M. man. Silberzahn replied, "That's a lot of s-t", and slammed up the receiver. This' man has that "I don't give a damn" attitude when doing his work and takes his job to be a big joke. Also on Monday, according to Duvall, 'Martin told him that Silberzahn had "used seine pretty bad language to Hoffmaster and made the statement that that was the last Sunday that he intended to work". He then told Martin, he testified, to bring him -a report from Hoffmaster, as well as the employee's 61 Silberzahn admitted that at that time he did not know Woolston, but. that Mrs May, May and Rawlings saw and identified the line superintendent that same evening, and that he further recognized his identity when Woolston was on the witness stand. THE BALTIMORE -TRANSIT COMPANY 1 159 deportment record. According to Duvall, Martin later brought him the follow- ing letter from Hoffmaster : OCTOBER 12, 1941.' While working in the office on the above date G. Silbeizahn, badge #74, asked me for $2 00 in nickels and remarked "This is the last damn Sunday I am going to work". He also said "They can fire me if they want but I won't work any more Sundays". Duvall further testified that he did not make the decision to discharge Silber- zahn until the latter was in his office, and after hearing him admit the remarks above quoted. Woolford testified that he had never before written a letter to Wisner report- ing the use of bad language by an employee, although he had heard men use the same expression. He also testified that he could recall neither the name of an employee involved or the subject matter of any other letter written to Wisner in the preceding 7 months. Hoffmaster testified that he wrote the letter on the date it bears-October 12- 'of his own volition. He also testified that although he had heard other men make the same remark, about not working on a given day, he had never written to Wisner about it. He finally testified that the difference in this case was that Silberzahn had used'the word " damn" in his remark. The respondents' case lacks the coherence and consistency essential to a finding of merit in their contentions, in the face of a clearly established anti- union policy and practice. N, Either Duvall or Hoffmaster was in error as to what,prompted the latter to write' the above-quoted letter. And although both Woolford and Hoffmaster had heard similar language, statements and remarks from other employees, if their testimony is to be believed they never before had reported the incidents. 'Furthermore, Wisner's testimony is clear that Silberzahn's record had never disturbed him. Nor does the record show that he ever turned it over to Martin, as would normally have been the case with a bad deportment record. Silberzahn's remark to Woolford, while concededly vulgar, was also common, as the dispatcher admitted. As a superior, had Woolford actually resented its use, it is reasonable to believe that when Silberzahn reported for work he would have said something about it. And, in the absence of other circumstances, it is reasonable to believe that Silberzahn would then have apologized, as he told Duvall he would have done. Hoffmaster's admission, that the only reason he reported Silberzahn's remark about not working another, Sunday was the inclusion of the word "damn," is too absurd to require further comment. Although it is established that Silberzahn had previously made similar impulsive remarks, about not working, he not only had always worked, but had never before been reported for making the remark. The Trial Examiner finds no merit in the respondents' contentions that Silber- zahn was dismissed because of insubordination. - CONCLUSIONS AS TO SILBERZAHN ' S DISCHARGE In the absence of any reasonable explanation offered by the respondents for the employee's discharge, the Trial Examiner must look to the evidence as to his union activities. It has previously been found that May was discharged for assisting the Union in organization. Shortly after his discharge a meeting was held at his home Woolston saw Silberzahn there. As found hereinafter, Wool- u ston played a leading part, during early 1942, in aiding Duvall weed out employees '160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who joined the Amalgamated. It is reasonable to believe, and the Trial Exam- iner finds, that word of Silberzahn's attendance at the union meeting in May's home reached Duvall, through Woolston, and that thereafter some pretext was sought which might serve as an excuse for discharging the employee. The Trial Examiner is convinced, and finds, that Silberzahn was discharged , because of his union activities. - 4.-The discharge of Arthur W. Rawlings a. Events leading up to the discharge. / Rawlings was employed by the respondents in November 1922, and worked continuously as.a bus driver until his discharge on November 6, 1941 . Woolston was his line superintendent and Martin was Supervisor of all bus operations. His only disciplinary layoff during the 19 years of his service was for one week, when involved in a collision with a street car, 6 or .7 years before his discharge . About a year before his dismissal he was complimented for his good work by Martin. v As found above, Rawlings initiated the move toward outside organization in early 1941 , by approaching the Teamsters local. Also, as found, after Duvall was seen outside the first meeting, no others were held until fall of the same year. A week or-two after this meeting, he was sent for by Martin , the first time he had been summoned by him since his employment . Martin queried the employee about a slight accident he had had about a week before. Martin told him that if he did not change his way of working , he would need to look for another job, declaling that the employee had things - on his mind that did not concern the company. Martin further told him that the sooner he got "this " off his mind, the better for him.55 As found above, the next union meeting was held on October 8 , at May's home, `and about two weeks later another was held at Rawlings ' home. At about this time Rawlings found himself subjected to complaints ,- criticisms and surveillance similar to those which were levelled against other employees, herein involved, as soon as management became aware of their union activities. He was criticized for such minor infractions as being a minute ahead of time, or for smoking at the end of the line, for which he had never before been called to task. Three days after the meeting at May's home , although no brief had been filed against him on that day, he was called in by Woolston, told to get this "off his mind", or he would . not have his job long. On November 5, when turning in the day's receipts , he was told to report to Duvall 's office the next morning. _ Duvall had been ill since the latter part of October and his assistant , Badart, was in his office with Martin . Badart told him that he had many briefs against him that lie couldn't tolerate this, and that he was dismissed . Rawlings was not shown the briefs , but was told they were for not stopping at rapid crossings. I b. The respondent's contentions and testimony as to Rawlings' discharge Rawlings' personnel record bears the following notation: "Dismissed 11/6/41 for frequent and continued violation of rules" Badart testified that on November 5 Martin came to him, told him he was having a lot of trouble with an employee who was violating rules, whereupon he 6' As to this interview, Martin corroborated Rawlings' testimony, upon which the finding is made. \ THE , BALTIMORE TRANSIT COMPANY 161 told the Supervisor to bring the employee in. The next day, according to Badart, Martin came in with a number of briefs and Rawlings. He and Martin cited the nature of 4 or 5 briefs to Rawlings, who replied, according to Badart, "I suppose so", when asked if they were right. Badart then told Rawlings, that they were serious, that he_ might kill somebody, and that if he continued they could not continue to employ him. Then, according to Badart, Rawlings stated that he had another job in view, upon which he instructed Martin to give the employee "his time." Badart admitted that he did not "go into" Rawlings' previous deportment record. At the hearing Badart identified 28 individual briefs which, he said, had been brought to him, on, the morning of November 6 by Martin, but 'which he could not vouch for as to their truth or falsity. 18 of the 28 briefs bore the purported signatures of Paragoy or Ayres, both of whom have been identified above as being the instruments of, Duvall in his successful effort to discourage member- ship in an outside union in 1937. Although Paragoy and Ayres were in the courtroom at the time, and thereafter, neither was called to identify his purported signature. Much mystery beclouds the briefs identified by Badart. As found above, it is the respondents' custom to destroy all briefs soon after they have been entered in the deportment ledger. In this case the respondents produced not only the ledger sheets noting these briefs, but the-briefs themselves, as well. Badart at first testified that he returned the briefs to Martin 2 or 3 days after Rawlings' discharge and that he had no knowledge as to what Martin did with them or how they happened to appear in the hearing room. Later during his examination, in response to a question by counsel for the respondents, Badart testified that he might not have turned the briefs back to Martin, but might have put them in Duvall's desk, which he was temporarily using Duvall was recalled, at this point, and testified that during the last week of April, when cleaning out his desk upon taking over his new position as general manager, he found the briefs in question, and knowing that Rawlings and the briefs were involved in the present proceedings, kept them in his possession "ever since." Duvall also testified, contrary to Badart's version, that since that time he had discussed these briefs with him. When it was pointed out to Duvall that no charge naming Rawlings as a complainant was filed until June 1, and that he therefore could not have known the last of April, the employee would be involved in these proceedings, he changed his testimony and said that he discovered the briefs after June 1. This explanation is equally unreasonable, since Badart had been occupying Duvall's former desk since May 1,• when he assumed the duties of Superintendent of Transportation. ,Furthermore, if belief can be given to the altered testimony of Badart, (to the effect that he did not turn the briefs back to Martin, but left them in the desk) and to the unaltered testimony of Duvall that the briefs had not left his possession since he found them, then the record fails to provide an explanation, that accords with the respondents' general practice of entering briefs on the records immediately after action has been taken by the supervisor. Dispatcher Prince, however, testified that the briefs were turned over to him after Rawlings' discharge, with the notation upon them that Badart had handled them, and that he thereupon entered them on the ledger sheet. Martin's testimony, however, refutes that of, Prince. The supervisor testified (1) that immediately after Rawlings was discharged, and, while still in Badart's office he, himself, had checked the ledger sheet bearing the summary of these 28 briefs with the briefs themselves; '(2) that Badart wrote upon the ledger sheet a notation of the dismissal,; and, (3) that he left the briefs with Badart. If, Martin is, to be be- 513024 4-3-vol . 47-11 I 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieved, then'the ledger sheet must-have been made up before Rawlings was inter- 'viewed and discharged, directly contrary to the practice Woolston, however, testified that the sheet was made up after the discharge. As to the briefs themselves, as has been pointed out, no substantial proof was offered that the majority of them correctly recorded any violations. Woolston identified 3 of the 28, which he had filed against the employee on October 31, 'nearly a week before the discharge. Two of these three are for alleged failure to 'stop at railroad crossings, one being noted as having occurred at 11: 09 a. in. and the other at 11: 13 a. in., the same day. Woolston testified that-he had wit- nessed these violations, but also admitted that he did not speak to Rawlings about them, despite his previous testimony that such violations were "very serious;" against the law, and dangerous, and also despite'the fact that he was Rawlings' immediate, superior. Out of this welter of, contradiction 'and confusion of 'records and testimony, submitted by the respondents themselves' in support of their contention that Rawlings was discharged for violation of rules, the Trial'Examiner is unable to draw any other reasonable conclusion except that the respondents were seeking a'pretext to rid themselves of'Rawlings;,and that the real reason lay elsewhere. Therefore the Trial Examiner concludes and finds no merit in the respondents' contention that Rawlings was dismissed because of violation of rules ' C. Conclusions as to Rawlings' discharge. As,found hereinafter, the phrase "othei• things on,your mind" was frequently used by Duvall and, others of management, in warning other employees to cease their union activities It is reasonable to believe that this was also Martin's intent, when he similarly warned Rawlings soon after the fist meeting in March, 1941, which had been under the direct surveillance of Duvall. Whether or not as a direct result-of this warning, the record establishes that no more meetings were held until fall of that year When they resumed, however, and particularly -immediately after the meeting at Rawlings' home, a campaign to accumulate briefs against Rawlings was engaged in by Paragoy, Ayres, and others. It is clear that-the real reason for Rawlings' discharge was his union activity, and the Trial Examiner so finds 5. Background of discharges in 1942 a. ' Organization of the Amalgamated At about the time that • organizational activity on the Teamsters died out, assistance of other A. F. of L. representatives was sought by three other veteran employees, Clayton Perry, Francis Pennington, and Theodore Peacock. Perry and Pennington were then representatives on the Independent board, while Peacock, previously a representative in both the Independent and its predecessor organizations,' had recently been defeated in an Independent election. Perry had been employed by the respondents since 1919, Peacock since 1920, and Pennington since 1922. During November A. H.'Keeler, Amalgamated representative, came to Baltimore, met with the 'three employees, and an organizational campaign was begun. In view of the recent discharges of employees who had-tried to organize in the Teamsters, Perry, Pennington, and Peacock solicited membership only from men' whom-the'y-felt they could trust. During the latter part of Decem ber and in January 1942'each"6f the three obtained many membership applications from their fellow employees. In February a charter' for the'Amalgamated was THE - BALTIMORE ' TRANSIT COMPANY' 163 issued with the names of Perry, Pennington, and Peacock leading the list of charter members.- ' I b. Dissension among Independent representatives, dissatisfaction among employees While quietly soliciting membership strength for the Union, Perry and Penning- ton continued to represenf the employees of their terminals on, the board of Independent representatives. On December 29 President Bancroft Hill informed the representatives that the bonus of 10 percent would be increased to 14 percent in January. Potter told the representatives to take the next,day off .and inform the men. Three, representatives, including Perry, told management that the employees wanted a raise, and not a bonus.66 They also demanded that a wage meeting be held with management. On January 15 the representatives reported on the wishes, of the, men in their divisions, most of them reporting that the employees wanted a flat-rate raise, and not a bonus The representatives then voted 23 to 8 for a 15-cent wage increase. Management was called in, and the request for a wage increase was refused. On January 19, although most of the representatives reported that their "constituents" were dissatisfied with the, bonus offered, the majority voted to • "go along with" Hill. On January 22 the representatives signed the wage agreement with management. c. Perry and, Pennington expelled .from the Independent because of their union activities - '° On February 10• Perry and Pennington were expelled, from the Independent. The following excerpts, relevant to their expulsion, are quoted from the organiza- tion minutes of that date. Rep. Perry requested the Board to give him their -attention for a few minutes. He then went on to tell of the beginning of the Union (the Inde- pendent) in 1937 and the share Mr Pennington had had in the beginning of the Union. That Mr. Pennington had siged him (Perry) up. as a member and he was, sure Mr. Pennington had his heart into the work. But since the Independent Union had become completely (sic) dominated by the Com- pany as was shown at the last wage meeting (sic) The members of this Board went out and talked to their men as Mr. Hill said that was what he wanted us to do and report back to him So we did and we brought back almost all of us that the men were not satisfied. Were the facts ever reported to Mr. Hill? they were not. So we accepted, the Company's offer. We then went back and told our men. The reaction of the men was that they had been sold out, and they told us they had no faith in this Committee. They told Mr. Pennington and myself that other cities as large as Baltimore were paying more money. They asked us why? we told them we did not know but we would look into the matter. Well, we did. And we find these cities have Amalgamated Association. Well,-the men said if that is the way to get more money then that is what we- want. So, Mr. Pennington and myself have gone to work to get the men what they want. We have an organizer here and without any trouble at all my location has been organized and Mr. Pennington's location is practically organized. So Mr. Pennington is called in to Mr. Duvall's office and told he has a bad record. Mr. Duvall charged him with not punching transfers, not stopping at crossings and not pulling, over -to the, curbs. Rep:, Perry asked Rep. Pennington if he had bo Under the bonus system- employees receive each' month a certain' percentage of what they earned at the fiat-rate wage the.previous month • . 164 DECISIONS OF ; NATIONAL LABOR RELATIONS BOARD changed his tactics in 'operating a car since he has been signing men up? Rep. Pennington, answered no. Rep. Perry said no one can say Mr. Pen- nington is a coward, I just heard Mr. Tucker say he was one of the Company's largest blood donors. Mr. Pennington has staked 23 years service with the Company- when he went into this work of organizing. The men at Mr. Pennington's location are being called in by the superintendent and asked if their representative'had asked them to join a union.' Thereupon Rep. Perry made a motion, seconded by Rep. Pennington to request the Company to issue a bulletin stating that employees may join any union they desire and that there will be no interference by the'coinpany: * * * President Clarke ruled the motion was out of order.' Rep. Perry then 'requested a vote on the legality of the motion. - This President Clarke` did not recognize. Rep. Hafer then made a motion to ezpell (sic) from' the Union any 'member of the Board who was affiliated with an outside union. Rep. Haymaker seconded the motion. A roll call vote was taken. The Vote : 14 for`the motion, 5 against, 11 declined, 1 absent. The management was called,in. Mr. Perryirequested Pres. Clarke to tell them of the expulsion. President Clarke addressing Mr. Potter, Mr. Duvall and Mr. Wolf stated that the Board had just voted to expell (sic) Mr. Perry=and Mr. Pennington. Mr. Potter said he was very sorry to hear this. Mr. Perry, asked Pres. Clarke to tell them why. Pres. Clarke then said these men had been expelled because-they admitted they were organizing another, union. Mr. Potter said that was enough. That the Board had acted wisely. That he was surprised and disappointed in both of these men. - That,;they both should be ashame (sic) tQ look us in the face. "You both will regret this. You will be bated by your fellow workers, you have turn judas. (sic) What do you expect to get out of this? I can tell you, you will get nothing, the other organization will not trust you after you have double 'crossed' this organization. I am thin with you. Rep. Perry said in answer to you, and Mr. Potter said he was still talking so Rep. Perry sit down. Mr. Potter continued saying would be here to meet the organizers if you should get organized, and it will be cold business, and none of the organizers will be able to do for you what this Union has done. I have been around and I know what these labor leaders do for you, I can be just as hard as fhey'aie. In ,,cities where these ' labor, unions are everybody is at everybody's throat. The people dont get the service we give. You men were elected to represent your men in this Union, and that is what you should do. Yes you have a right to organize, this is an American privilege. You have free speech, and if you want e free fight you will get a free fight. Mr. Perry than replied, saying that he was in the fight to a finish, that he was going to do everything in his power to organize the men•on the property, and I will give you a free fight and as fair a fight as you ever had. That with this Union the management did not get a chance to see the real picture that the men present to the Committee, and if you were in this room and could hear what is said and later hear what is said when you come in 'you would not think it is the same body of men. You think you know how the men feel, but you don't. You get on a car slap a man on the back and ask him how is everything, sure he says ok, but not to, me. He'is not going to talk to you as he does to me. No I am not going to abuse you' or Mr.'Duvall. You call me a judas, but I tell the men you are a genius. You have all the artillery and I am undefended but I am, going, ,out and sign ,up, the men. ,. Superin- THE BALTIMORE TRANSIT COMPANY 165 tendents are calling men in and asking them if Mr . Pennington is talking union to them. Does he think they are fools enough to tell him. Mr. Pen- nington called in by Mr..Duvall and Threaten (sic) because he had not punched transfers, not pulling to the curb, not stopping at crossings, and he is operating 'as he always has for the past 23 years. And even then Mr. Pennington did not go out and abuse Mr. Duvall to the men. Why Mr. Pen- nington said the way Mr. Duvall talked he felt some what ashame. (sic) Mr. Duvall said he should be ashame . ( sic) That for a man to be on this Committee and go out and try to organize another Union against this Union was like a man holding a position with this government and then going out to give aid to Hitler. I can't think.of anything worse than being a Judas who has been hated for 2000 years. Mr. Perry replied, that is what I have just been called. Mr. Duvall then said we just signed an agreement and the ink is hardly dry, doesnt that mean anything to you. Then we went over to the hotel drank to each-others health, and broke bread together, and all the time you were trying to under mind (sic) this Union,, do you think that is honest? Mr. Perry said 'if you will rephrase that question I will answer you. Rep. Atkinson said if a true picture had been given Mr. Hill at our wage meeting all this would not have happen. That the Management doesnt get a fair picture. Rep. Haymaker said "Mr. Potter gets a fair picture from me." Rep. Atkinson said "You did not paint a fair picture at our wage meeting." Mr. Potter said "He did not think the company's officials should, be present to hear petty quarrels by the representatives." He urged all to pull together. `All for one and one for all. If we dont learn to get along with one another we may lose this war. "I believe-90% of the employees are willing to go along with this Union. Why should there be any strike in war industries. If you ever try to pull a strike on this property you will, see what your fellow men think of you." Rep. Atkinson begged the Board to go out and work together and get Mr. Perry and Mr. Pennington to go along with us. Rep. Haymaker said a vote had been taken and there were no way we could get them to go along with us. , The condemnation of Perry and Pennington by Potter and Duvall, as above revealed, was effective. At the next committee meeting, on February 17, Clarke called for another vote on the expulsion. This time all 29 representatives approved the action. Immediately after this vote, according to the minutes, President Clarke said, "I am now going to call Mr. Hill in and ask for another 6 % on our bonus. And he doesn't know a thing about this meeting. Rep. Hafer said, "This is sudden that you are calling the officials in and requesting a raise. While they are in, ask them if we have their support or shall I ask them?" I Management officials were called in. Excerpts from the minutes follow : President Clarke speaking to Mr. Hill, Mr Potter, Mr Duvall and Mr. Wolf said,"You have heard what is going on around the property." Mr. Hill said, yes, he had heard something about it. President Claike then said "Well, I think this is the time for the loyal men of the Company to get the 6% you promised us." Mr. Hill said, "I did have an idea that I would come around soon and make a step in that direction , but this is too sudden. I can't bind the Company today. I want you to' have all you can get, but I must take this 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up with the Board. I will talk to you at your next' meeting I will promise you that we will take a step toward the 20% but I cannot promise the whole way. Allow me to make an announcement to you a week today." Rep. Hafer said, "A couple of years ago I told you at our wage meeting that we did not have any Kohns or Comenskis in our ranks but since then a couple got in and we have gotten rid of them. We have fought to keep this.little Union and now we need all the moral support the Company can give us. When you take the increase to the Board of Directors will you also ask them to give us their moral support? We need the support you might be able to get us." .1 Mr. Hill said the Board of Directors have nothing to do with this. This question is more than moral support, I can't, tell you anymore. * * [Italics supplied ] Mr. Potter then talked. * * * "Yes, men, I am behind you 100%, when this organization goes there will be nothing around here left that is worth fighting for One for all and all for one." Mr. Duvall said, "You have made a request today and I am whole heartily (sic) in sympathy with you. It was no easy job to convince the court and receivers of the Company to keep what we have. My faith is with the Company Everyone is interested in pensions, we are anxious about Social Security. We don't know what is going to happen with this fund with the war cost such as it is. "You have my- moral support as the head of the largest department of the Company. I am behind you solidly. I am also solidly against any two-faced, double-crossing bastard that tries to destroy what we have built up here in pensions and sick benefits and hospital and doctor's service." [Italics supplied.] Mr. Wolf said, "I feel that I am one of you. I have helped fight for what we have, and I am solidly behind you to keep what we have. I am swinging from the ground up, and anyone who comes around me trying to undermine (sic) what we have, I am going to let him have it." At the hearing Duvall denied having used the wofli "bastard," as above quoted. He admitted the substantial accuracy of other statements attributed to him in the same minutes. Although not asked about this specific entry , Secre- tary Dunaway testified that the minutes accurately reflect statements made at meetings., The undersigned does not credit Duvall's denial and finds that the above-quoted excerpts are substantially a true reflection of events occurring and statements made at the two meetings.67 d. The respondents' coercion of O'Connor Bus Driver 0 Connor, as found above, was one of the employees who, having joined the Union,in 1937, were sent to Duvall's office and by him coerced into abandoning the Union. . ' He again joined the Union in January 1942'but kept his membership secret On February 17 he filed application for renewal of a Credit Union loan Two days later, when calling at the Credit Union office for the expected check, he was told by the clerk that renewal of the loan had been turned down. O'Connor went to Duvall and -asked if he knew why his application had been rejected. Duvall said that he did not know but, unless he was, mistaken, 'O'Connor had 67 Duvall attempted to discredit Dunaway's accuracy by declaring that he "doesn't take shorthand " He admitted, however, that -he sat "close enough to the secretary to touch him," and later testified that although he had attended an Independent meeting since the alleged "error" had been called to his attention he had said nothing to Dunaway about it. THE BALTIMORE TRANSIT COMPANY 167• been making "nasty" remarks about him and the company. O'Connor 'denied the accusation. Duvall then said that-he was surprised at the recent action of men at the Bush Street terminal, that most of the men there had been with the company a long time and knew how good the company was to them, and that it seemed to him they were going out of their minds. Duvall further de- clared that he was not going to permit a few men to tear down what had taken years to build up. The superintendent finally called Wolfe, head of the Credit Union, in O'Connor's presence, and asked that the loan be approved. He then told O'Connor that he was doing this in the hope that it would get him straight- ened out. As O'Connor left, Duvall cautioned him to "keep (his) nose clean." O'Connor then went to Wolfe who told him to come back the next day for his. check. When the employee returned, however, he was informed by the clerk, after she had telephoned to Attorney Trageser, that approval had again been held up. O'Connor proceeded to Trageser's office and made inquiry about his appli- cation. Trageser indicated that he, knew the employee had consulted Duvall the' day before, and then declared that he had received reports to the effect that O'Connor had joined an outside Union., O'Connor denied this. Trageser' then asked what the matter was with the men at Bush Street and demanded,, "Just what do you think this fellow Perry is, anyhow? Whatever he says down there goes " O'Connor replied that he was not "in this thing," and could not, understand why the attorney was talking to him like this Trageser then said that if the Union got in, the Credit Union would have to disband, the "associa- tion" would be gone, along with sick benefits, hospitalization, and doctors. Again O'Connor. denied being in the Union. Trageser then wrote on'a slip of paper:, I have not joined any outside labor organization I do not intend to, as long as I am employed by the Baltimore Transit Company and asked O'Connor to sign it. O'Connor signed. Trageser then wrote a similar statement upon the face of the loan application, witnessed the employee's sig- nature, and told the employee, as he went out, "Don't forget who your friends are." O'Connor immediately received his check at the loan office.°° (6) The discharge of Clayton Perry a. Other events leading up to Perry's discharge With permission of his dispatcher Perry did not work on February 11. He went to the Bush Street terminal, however, and posted a notice to employees that he had been expelled from the Independent. The notice was soon removed by dispatcher Patterson who explained to Perry that if he did not take it down Martin, Supervisor of Bus Operations, would "probably give him' hell " 69 The following day Perry also obtained permission to be off, reporting that he had a E8\U'Connor's testimony as to his visit to Trageser's office is undisputed, although Trageser,' as one of the counsel of record for the respondents, was in the hearing room daring his examination Counsel for the Board asked counsel for the respondents to produce the 'statements signed by O'Connor. Counsel replied, "One moment I don't know This is news to me, whether we have any such statement I want to confer with Mr Trageser about that, whether such a paper was ever signed, made up, or whit is b,ick of it, or what has become of it " When asked by the Trial Examiner if he had the document. Tr.igeser replied in the negative Duvall denied discussing "any labor activities or membership or, anything else" with O'Connor on the occasion of the employee's visit to him, but admitted that he asked the Credit Union to approve the loan In view of Duvall's hostility toward the Union, already clearly established, and of Trageser's action the following day, the under- signed does not accept Duvall's denial. 61 The quotation is from Perry's testimony, undisputed on this point 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, cold. During the day he went to the terminal. While in discussion with line- superintendent Wisner about his expulsion from the Independent , the latter stated that his brother, as a member of an A. F. of L. union, did not enjoy the benefits accorded to the respondents ' employees, extolled the advantages of the Independent, and told Perry that he believed he had made a mistake.`° Perry thereafter asked the dispatcher for sick -benefit funds which he had been ac- customed to take periodically to another- employee . The dispatcher said he must first get permission from one of the company 's officials. Perry telephoned to . Duvall and made the same request, but was refused . In the same conversation, Duvall said he thought he was sick and, when Perry replied that he had a cold, commented , "You don't act much like a sick man." 81 A few minutes later, Martin and Crass,"' chief of the company's police force, appeared at the trouble sta- tion B° from which Perry had called Duvall . Martin told Perry he didn't look like a sick man to hiin , and Crass asked the employee to leave the property. On the way out Perry said, "Mr. Martin, we' don't want any personal feelings to enter into this thing. As far as I am concerned, I feel the same way toward you as I have always did." Martin replied, "That is all right, but you are making a damn. fool out of yourself." 04 ' After leaving, Martin Perry' went home and,, early in the afternoon , to the ' , office of Dr. Plassnig, one of the company physicians . , Dr. Plassnig examined him, and .prescribed for a cold in the head"and chest.' On the following day; February- 13, Perry returned to work, and was assigned to his regular run . During the day, road bosses Gooding and Ostendorf rode his bus at different times; an unusual occurrence 86 Gooding and Osteiidorf are the two road bosses , or inspectors, assigned to the line on which Perry operated, and part of their duties is to observe infractions of rules. According to the respondents' records, Perry was reported as having violated,,on February 13, • 60 The findings as to this conversation rest upon Perry's testimony. Wisner answered in the negate a when asked if he recalled having told Perry that "he bad made a mistake," denied ever having told any employee that he had a brother in the A F of L , and was not questioned, about other statements on this occasion attributed to him by Perry. However, the line superintendent testified- that lie had heard of Perry's union activity, as well as his expul- sion , and readily admitted, as described more fully hereinafter, that he later told Perry that he was "100%1o against him" unless he could show that the Union offered something better than the Independent 01 The finding as to Duvall's remark is based upon Perry's uncontradicted testimony. Duvall admitted having refused to permit Perry to deliver the sick benefits. 61 Sometimes referred to in the transcript as "Krantz " . G+ Duvall described the trouble station as "merely a relief point," where operators eat their meats, and from which trouble trucks are dispatched °' Martin admitted having sent- Perry home on this occasion, but denied having told him that he was making a fool of himself Martin further testified, however, "I told him, 'I think you are foolish in the move you made ' " The findings, rest upon Perry's credible testimony Duvall admitted having sent Martin and the chief of police to the trouble station to evict Perry, but explained that he had issued these instructions immediately after receiving an "anonymous" telephone call to the effect that Perry was trying to stir up trouble aniong the men there The Trial Examiner cannot accept, as true, Duvall's explana- tion of an anonymous telephone call. Perry's testimony is undisputed that a few minutes{ before the arrival of Martin and Crass he had talked with Duvall over'the telephone from the s'ime trouble station Martin testified that he found Perry creating no disturbance and the respondents adduced no evidence that Perry had, in fact, been interfering with other employees In view of preceding and subsequent events, the Trial Examiner is convinced that Duvall's order that he leave the property was the first act of a series, all designed by management to harass Perry in' rebuke for his open declaration of Union affiliation. 05Perry's testimony, in general, as to this visit, was corroborated by Dr. Plassnig 68 This finding rests upon Perry's testimony. Ostendorf testified that be did not "recall" being on Pen y's bus any more "them last three weeks than I was before" ; and Gooding admitted having been on Perry's bus on the 13th. THE BALTIMORE TRANSIT COMPANY 169 four operating rules 67 The same records reveal 'that, until February 13, 1942, Perry had not been reported for a similar violation since January 1940, a 'period of more than two years. , The next morning, which was Saturday, Perry. was followed throughout the two hours of his first round trip, by night supervisor Ayres, in his automobile.38 At about 8: 30 the same morning, while turning a corner with his bus, Perry was seized with a pain in his back. He called the dispatcher, and was relieved "when ,he, reached the terminal. He went home, and later the same day visited Dr. Plassnig. The doctor told him that probably the pain was. caused by his cold, .and advised him to go home and put hot applications to his back G8 - Perry fol- lowed the instructions,, and remained at home until the,following Monday.: When his back had not improved on Monday, Perry went to see his owmfamily physician. The doctor examined him, advised him that he had a sprained back and a "bronchial condition," and gave, him a prescription., Two, days later the doctor visited him at his home, where he treated him,for acute bronchitis and acute laryngitis. Perry remained at home the remainder, of the week Although not fully recovered from the trouble with his back, and not reporting for work, Perry did not remain confined to his home during the week beginning February 22, but went out occasionally and talked with some of the employees. On February 23 night supervisor Ayres sent the following letter to Duvall : About •11:03 this P. M. while I was passing the 4700 block of York Road. I saw C. Perry badge number 208, and another man whom I did not know, come out of a house in the above block of York Road and get into an auto license number 158-088 and Perry drove it south on York Road. I understand Perry is off and on the sick list. On the same day Topping, superintendent of No. 8 line, wrote Duvall the follow- ing letter , Clayton Perry, badge #208, bus operator, from Bush Street garage. He is off duty, on sick leave. While on sick leave, on February-23rd, I saw him get out of an automobile, bearing license #158-088-Md. on St. Paul near Read Streets, at 11: 35 P. M. and enter the Madison Hotel. 'On February 26 Perry again went to Dr. Pass' office, and had his back strapped with adhesive tape. On the same day, inspector Ostendorf was sent to Perry's ,home with instructions that the latter should report to Martin and Wisner the next day. Perry reported at the office the next morning. Before going to Martin or Wisner, he was informed by Jenkins, of the paymaster's department, that his pay had been held up Martin opened the interview by asking Perry where he had been, and.when the latter replied that he had been at home, stated, "You have been other places besides home, too." He then ordered Perry to see Dr. Kourey, head of the respondent's medical department, and get a certificate from him as to whether he was "sick or well or not." 70 In a letter dated February 27, Wisner thus reported the interview to Duvall: O7 Perry was cited, on this date, for failing to stop at a railroad crossing , for leaving his bus unattended , forrleaving headlights burning, and for passing the bus ahead of him. It is unnecessary here to determine whether Perry actually violated rules on this date. ,The respondents offered no substantial proof that violations were committed and, as later revealed , contended that Perry was discharged for other reasons. 68 Perry's testimony on this point is undisputed. 69 The testimony of Perry and Dr. Plassnig is in agreement as to this visit also 70 Perry's testimony on this interview , upon which the finding rests, was substantially' corroborated by Martin and Wisner. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I wish to advise that Chauffeur C. Perry, Badge 208, in service 23- years, who has been off sick since February 14, 1942, reported to me this morning at 0:00 A. M. I asked him what was his trouble and he said , "I have been sick and I am having trouble with my back." I asked him if he had been to the Doctor and he said ,he-had been to his own Doctor twice, a Dr. Pass, 4001 Wilkens Ave., and he also had been to see Dr. Plassnig twice. I then asked him if he was ready to go to work and he remarked, "I am broke and want to work." When I told him to go see Dr. Kourey he wanted to know if Dr. Kourey was qualified to say whether he was sick or not. I told him .that Dr. Kourey most certainly was and Perry remarked that, he was going to see his own Doctor. I told Perry he still had to go see Dr. Kourey and I wanted a report from him by Saturday morning as a release for work or stating he was still under the Doctor's care. At the same interview , according to Wisner 's own testimony, he and Perry dis- cussed the relative advantages of the Union and the Independent . The following excerpt is from •Wisnei's testimony: He (Perry ) says, "You know , you are on one side of the fence and I am on the other." I says, "Well, according to what you mean, I am probably 100 per cent- against you until you can show me something better . What have you got to offer?" He said, "You would be surprised." I says, "Well, I guess I will." , I said, "Well, now, let me tell you what I can offer, because what I got-" And, I explained to hini what I had received * * * .After Perry assured Martin that he had "every reason in the world" to want to •.get back to work, pointing out that after 23 years of paying dues into the Inde- pendent Union he was now receiving no sick benefits, he went to Dr. Kourey's office. He told the doctor that he had been sent there to get a certificate from him as to whether he was "sick or well," upon orders from Martin. The doctor questioned him briefly, and entered the following notation of Perry's statement on his health record: Two weeks ago yesterday on Thurs.'2-12th, went off duty because of a cold and saw Dr. Plassnig. Went to work Fri. 2-13th, worked this day and reported,for work on Sat. About 8 AM had pain in my back while turning the corner from Milton to Lafayette; called dispatcher Patterson and was relieved at 8:35 AM. at Redwood St. Went back and turned•.iniand then went home and stayed in until I saw Dr. Plassnig At 1 PM. He said the pain in my back was due to a reaction from the cold He gave me a Rx and prescribed heat Went home and stayed in the house until Mon. Saw Dr Pass at his office and was examined -he prescribed for my back and told me if it did not improve he would have to tape it. Took wife in the machine to a place she had to go-I took her because of the rain, and then went home and remained there until Sat. Dr. Pass was called to see pt. at home on Wed 2-18th, at this visit he had developed laryngitis,,and bronchial trouble and back still bothered him Rx for back helped somewhat but he retained the cold. He was advised by Dr. Pass to stay in the house and not to do any bending or stooping I went out periodically for 2 hours at a time. Dr. I 12 THE BALTIMORE TRANSIT COMPANY 171 Pass' instructions to him were to treat the back c heat and rub it c winter- green oil and refrain from stooping Dr. Kourey advised Perry to go back and continue under the treatments of his own doctor until he released him, • and then cone back to work. 1 Perry returned home, called Martin, and reported the result of his interview with the doctor informing him that the doctor had given him no certificate. Martin told him, according to the Supervisor's own testimony, that "that was perfectly all right." On March 5 Perry and a Union official went to the Regional Office of the Board in Baltimore and filed charges against the respondent, the original charges in these proceedings. Early the next morning, while Perry was at Dr. Pass' office Ostendorf again visited his home, and left a message for him to be at Dr. Kourey's office at 11 o'clock.' Perry obeyed the instructions. The doctor's written report of this visit submitted by the respondents is quoted fully as follows: ' 3/,6/42, Pt. visited this office. When asked how he felt, the answer was "So-So." Ques. Do you mean that you don't feel all right or that you do feel all right? Ans. Still have pain in my back. Ques. Have you been going to your doctor? Ans. Yes, saw him this morning, 3/6/42. • Ques. Have you been following your doctor's instructions? Staying in or. 'going out?- • Here pt. diverged- from the immediate purpose of his visit to go on to say: "Why am I asking him whether he is staying in or going out? 'In this so- called democratic country, can't we do what we like (sic) being questioned as -to our motives? It seems to me that you are acting as an investigator or trying to investigate me rather than acting in the capacity of a doctor. I don't mean to say that you have anything against me, because you and I are friends-you and I have played poker and have always gotten along " (The inference about playing poker refers to the altogether social games played during our outing several mo's ago.) At this point, the pt brought in the ques "Why is it I have to be asked such ques. or be, investigated, when others, have not been so investigated? Dr: Kourey, as I have said before, you and I are friends and I have worked with this Co: 20 some years and this is the first time I have been off and I don't oven draw any benefits-why is it that I should be so questioned when C. Insley was ill for several mo's. and was not so'investigated. You know that it was I who got you to see him and you examined him, determined his trouble and went ahead to do something for him ; also ; there is V. Farace who was off for a long time,' both of these individuals were not taken into account as I have been-neither of them have been with the Co. as long as I have." 'n This finding rests upon Perry's testimony. Dr. Kourey admitted that he told Perry to return to the care of his own physician, but added that he also told him that if he "was going out or able to go to his doctor's office to return and see me in two or three .days-I think I specified three days, or probably Monday, March 2d" The undersigned cannot accept Dr. Kourey's uncorroborated testimony on this point. His records fail to show that he gave Perry this, or any other instruction, on that date It was clearly apparent to the doctor on February 27 that Perry was then, and had been for a week, able to go out Therefore no reason existed for the provisional "if able to go to his doctor's office", and hence no probable reason for the instruction itself. In any event, the respondent makes no issue of the fact that Perry did not 'appear at the doctor's office three days later or, as the doctor said, "probably Monday, March 2 " rd This finding is based upon Perry's testimony and upon the respondents' records. Osten- dorf's testimony as to dates and messages he left was obviously confused, and the under- signed places no reliance upon it. - I 0 172 DECISIONS OF.'NATIONAL'LABOR RELATIONS BOARD My answer : "Mr. Insley was admittedly an ill man and this fact ,was known by the proper department ; V. Farace, I understood his conditions quite' well so that Js nothing new to me." Ques. "Mr. Perry, I would like very much to go over you, i. e , to examine you."' Ans. "No, I don't think I want you to examine me, I don't think it is your place to examine me for I have a doctor attending me." Ques. "Mr. Perry, in my capacity as a physician and the medical officer of this Co. it is my obligation and duty to perform or make an examination to determine whether or not an individual is ill or not and to make recommenda- tions,accordingly, this right I have contrary to your opinion,that I do not possess such rights. I am not examining'you for' the purpose of treating you, but merely to determine if illne'ss`isnpres'ent or not and if so, to what extent. Ans. "I don't believe you'have the right to,examine me, since I have a doctor ,talking care of me-couldn't you take the doctor's word?" I replied, "I will take the doctor's word provided you are sick, but in spite of that, I still have the right to examine you. I further asked, "If your doctor, was consulted and wa§ agreeable to have you examined by me, would you be willing to cooperate and, submit to an exam." Pt. answered in the following, manner, "I want to look into that before I give an answer. I want to see my doctor first but I don't think I want to be examined." Mr. Perry went on to say that a man may come into, me for exam.'and his pulse may be fast and I inay want to retire him,. "You know how that goes-a man may be excited, etc. and he may then go to an,outside doctor who may find him perfectly all right and capable of working.,' My reply was "Mr. Perry, I take into consideration the psychic element when a pt. appears for exam, and applicants or individuals are, not turned downrfor.an acceleration of pulse provided there be no organic lesion present to account for such a condition. All individuals are treated c the greatest respect and when a man is turned down or pensioned after repeated exams. the decision always has for its basis, an incapacitative condition which would render the individual unsuitable for .the type of work he is performing or applying for. Frequently an alternative type of work is suggested." Ans "Well-you may say a man is unfit but an outside doctor may say he is.all,right-doctors have different'opinions." , My,reply : "Mr. Perry; you are only partially correct in assuming that doctors may disagree on certain things, you are wrong in assuming that attitude per se. As I have stated before, whenever an individual is pent sioned, there is always a certain definite incapacitative condition present and when such an organic condition is present, an outside doctor'could not disagree c me in such.a 'mater. Here it isn't a question of difference of opinion but a ques. of determining. facts., I personally don't believe an out- side doctor would deliberately disregard facts, even though he be very anxious to help his pt. Now, Mr. Perry, all of this is aside from the ques ' I'm not here in any other'capacity than that of examining physician, there are no hard feelings. I am willing and anxious to help you as much as I can.. I only wish to perform my duties and'fulfill my obligations to you and to the company. I will ask you again, if you will be willing to have me look you over for the purpose of determining the illness which you say you are suffer- ing from." Ans. "Dr. Kourey, you and I are friends and want to remain as such, but I do, not wish to be examined." • ' "Mr. Perry, I am sorry that you feel that way about it, there is, nothing further I can do. I suggest that you see Mr. Duvall, the Supt. of the Trans. Dept." THE BALTIMORE, TRANSIT COMPANY 173 In substance, Perry's testimony as to this interview accords with the above- quoted portion of the doctor's document, and the Trial Examiner finds that Perry objected to submitting to an examination by Dr. Kourey, following the physician's queries as to his whereabouts, until he had an opportunity to consult his own physician. Perry then went to Duvall's office, where he waited for about an hour or until about 1 o'clock before being admitted. In the interim Dr. Kourey re- ported to Duvall,- according to his own testimony, that Perry had absolutely refused to be examined. Martin was also present at Perry's brief interview with Duvall. Duvall asked what was wrong with him. Perry replied, that he was having trouble with his back, and 'wasp taped up. Duvall' then said, "You don't act much like a man that is troubled with his back ; the things that you have been running around doing. You are. not going to continue to make a damned fool out of me, so I will make it short and sweet." He then told Martin to give Perry his time. Perry asked for a recommendation, pointing out that he had served the company for 23 -years. Duvall refused, stating that for, the past 23 years he had not been doing the things he, had lately.u b The respondents' contentions as to Perry's discharge Early in Perry's examination, counsel for the respondents stated that the employee was discharged ',for good and sufficient reasons and for violating the company's rules." Duvall at first testified that Perry was discharged "for stay- ing away and reporting sick and would not cooperate with us in helpfng ine to establish whether he really was sick or not." Again, Duvall testified that he discharged Perry because "he would not submit to an examination by our physician, which is required." At another point in his examination, Duvall testified : Mr. Perry's case was reported to me,, that he was repeatedly seen, and I went to our doctor and asked him to check upon it and the records will show-the memoranda will show chat I sent for Perry and asked him to see the doctor on the 27th day of February , at which time I thmk, Dr. Kourey referred him back to his own doctor He continued to be sick and I sent for him again and asked that he submit to an examination by Dr Kourey and he refused to do that , point blank ; there'was no uncertainty about Mr. ,,Perry's refusal to let Dr. Kourey examine him. The substance of Duvall's version of his talk with Perry, at the time, of his discharge on March 6, is as , follows : When Perry came into , his office hd asked the employee about his-sickness , and was told that the latter had been at home a week , but thereafter had gone out He then told Perry that he wanted him to seethe doctor, to get a report on his actual condition . Perry objected , explain- ing that he was under the care of his own doctor .. Duvall insisted; "in a way," and when Perry insisted that he would not permit it, he dismissed, him. c. Conclusions as to the respondents' contentions The respondents' contentions as to the reasons for. Perry's discharge. lack factual support in the testimony of their own witnesses. Counsel's statement "The findings relative to occurrences in Duvall 's office are, mainly, based upon, Perry's credible testimony . Duvall's, account of this interview, which the Trial; Examiner cannot accept as accurate is discussed in'the subdivision of this report next following ; also,, Duvall' admitted telling Perry that he would''not let Perry make a` "monkey" ' out of him. but denied using the expression "damned fool." The difference ; the Trial' Examindr' con- siders, is academic. Duvall also admitted that Perry told him, on this occasion , that his back ,was, strapped. 174 DECISIONS, OF NATIONAL -LABOR _REI:ATIONS BOARD that-Perry was discharged for violating the `.`company rules" is refuted by Duvall, who stated that he "doubted" if he would have discharged Perry. on his deport- ment record. It is true. that inspectors and other supervisors had followed Perry on February 13 and for two trips on, February 14, and during those few hours had turned m_7 briefs against him,-more than had been recorded against. the employee for similar alleged violations in the preceding 3 years. Also it is probable that if the factor of Perry's absence from work had not arisen to provide Duvall with another pretext for discharging Perry, he would have availed-himself of the employee's deportment record as a pretext, as, is found hereinafter to have been the case with other discriminatory discharges. Sup- port for this probability is found in Duvall's testimony that he did not refer to Perry's briefs at the time of the discharge, but- would have if he had not discharged him on other grounds. Perry clearly violated no company rule in not subjecting himself to an exami- nation by Dr. Kourey. Although the latter at first testified that it was Perry's "duty" to submit to the examination, he later admitted that he only "considered" it a duty, and that he did not know of any rule covering the matter. The record establishes that the only rule compelling an employee to visit a company doctor covers cases where he has been out ill, and wishes to report back to work. He must then consult a company doctor and obtain a "release", a procedure which may or may not entail a physical examination. Nor is there credible evidence in the record that Perry was told by any one in authority that he must submit to Dr. Kourey's examination on March 6, thus creating a situation wherein Perry might hate been charged with,, violating specific instructions. The respondents' records show only that "Inspector Osten- dorf stopped at his house at 7: 51 a. in. and told him to be at Dr. Kourey's office at 11:0 a. in. same day." When asked if Perry had told him on March 6 that he had been ordered to submit to an examination; the doctor replied as follows : A. He was told-I think probably he did convey the thought ; I am not so certain about that, though, your Hono U but he was told to report to my office for an examination. - Q. Did Perry tell you that? A. I believe he did. Q. Were you told by Mr. Duval or anyone to give him an'examination? A On'March 6th I was told by Mr. Duval to send for Mr. Perry and he would like for me to examine him and report to him. Q. Were you definitely told to examine him and report- A. That is right. Q. And Mr. Perry told you definitely that he had been sent to you for examination? A. Definitely. The undersigned must reject, as inaccurate, the doctor's testimony that Perry told him he had been sent to have an examination. Dr. Kourey was asked by the respondents' counsel: Q. Doctor, does the memorandum of March 6, 1942, of your conversation with Mr. Perry embrace every word-that,was uttered by both you and he? A. Practically, yes, I would say practically every word, The memorandum referred to, quoted fully above, establishes that Perry did not( make the statement attributed to him by.the doctor. The undersigned cannot believe Duvall's testimony .that he insisted, at his interview, with Perry, that the employee go to Dr. Kourey and be examined.' THE BALTIMORE, TRANSIT COMPANY, 175 Perry had just come from the doctor and, before seeing Perry, Duvall had been informed by, the doctor, according to the latter's own testimony, that Perry had refused to be examined. Moreover, it is reasonable to believe that, had Perry received a definite order from Duvall, he would have obeyed, as he had when sent by Martin to Dr. Kourey on February 27. Thus it is clear that Perry violated neither a general rule nor a specific order. Nor does the evidence support a finding that Perry flatly refused to submit to an examination by Dr. Kourey. He denied having refused. An excerpt from another notation on the doctor's medical record of Perry, covering a telephone conversation between himself and Dr. Pass at about 2: 00 o'clock,-after Perry, had been discharged,-reads as follows : I asked finally if it would be agreeable to him for me to make an exam of Mr. Perry. His reply was that' he was willing and agreeable for, me to make any examination that I felt was necessary. When confronted with the inconsistency arising from his testimony, and asked to explain why, if Perry had refused to be examined under any circumstances, as he testified he had reported to Duvall, he thereafter called Dr. Pass to find out if he might examine Perry, Dr. Kourey at first replied : I called his doctor exactly for the simple reason that I knew that this man was malingering.74 ' Pressed for an answer, to the question, and 'after many evasive replies, he testified : - ` That is the customary thing. I want to make sure I am on' solid ground. I didn't have to call his doctor for the examination. Again, in reply to the same question : I didn't know what was going to happen to Mr. Peiry. I thought possibly that he might return to me and I wanted to make sure that I would have' the statement before him that his doctor hadn't any objection to examining him if he did return. Finally, answering-the same question: In professional courtesy, sir, because I had asked Perry if he would permit it, and he said "No", I want to see how his doctor felt about it. In the lack of any reasonable explanation as to why Dr. Kourey'asked Dr. Pass for permission to examine Perry if, in fact, Perry had definitely refused to be examined anyway, as Dr. Kourey also testified, the undersigned must draw the only reasonable inference,-which is supported both by Perry's testimony and' the doctor's written report,-that at no point in the consultation did Perry refuse,' but simply objected and stated that he first wished to confer with his own physician. Therefore the undersigned finds and concludes that Perry violated neither general rules nor specific instructions given either by Duvall or Dr. Kourey. As to Perry's objecting to an examination before consulting with his own' physician, the record is plain that at no time was Perry made aware that his employment was in jeopardy. When asked by counsel for the respondents if he told Perry that his job depended upon submitting to an examination, Dr. Kourey replied : "Oh, no,' indeed ; I did not, not by any means." 74 This statement, made by a doctor who had not examined the patient, was not only - lacking In'professional restraint, but clearly was a reflection of animosity displayed toward Perry by other officials of the respondents. - 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' As to the respondent 's apparent contention that the decision to discharge Perry also rested somewhat upon the fact that he had been seen away from home, while on the sick list, Duvall admitted that he could point to no rule thus violated by' Perry. Thus it is unnecessary to review, here, the testimony on this point ad- duced by the respondents . There is no credible testimony that Perry was seen by any employees except those exercising supervisory powers, and despite Du- vall 's sweeping statement that Perry's conduct had a -demoralizing" effect the later admitted that he could not cite an instance of such effect. It is established that Perry's absence from work created no personnel problem. Assistant dispatcher Hoffmaster, a witness for the respondent , ' admitted that there were other drivers to take Perry's place. CONCLUSIONS AS TO PLRRY'S DISCHARGE The undersigned is convinced that the following excerpt from 'Duvall's testi- mony reveals the real reason for Perry's discharge:, I - Mr. Wheatley, we knew what his activities were; he was around talking' to'the men and we knew he was talking about his pet labor activities, and he was distributing-whether it was just at that time or•a little later I am not sure-literature of various kinds; the magazine that is put out by the Amalgamated. In the discharging Perry, Duvall rid the respondents of one of the two em- ployees whom he had referred to on February 17 as "two-faced, double-crossing bastards," and whose expulsion from the Independent on February 10 following Perry's reasonable motion-"to request the Company to issue a bulletin stating that employees may join any union they desire and that there will be no inter- ference by the Company.". Perry's motion was not voted upon by the represent- atives, but the respondents' answer to his proposal was summarily served upon him on March 6. when he was discharged, because of his union, activities. (7) The discharge of Pennington a. Other events leading up to his discharge. For the first time in his 20 years of service for the respondents, Pennington was summoned to the office of Duvall on February 7, 1942, and' reprimanded by the superintendent of transportation for violation of operating rules. And also on this date Pennington was first made aware that the management knew of his union activities. When Pennington reached Duvall's office he was asked, according to the superintendent's own testimony : why it,was that after so long a service as he had that lie was beginning to violate some' of the rules that it was so easy to carry out. Pennington told him he did not believe that he had been called in because of briefs, but because of his labor activities. Duvall then replied, also according to his own testimony : , I told him that I wasn't surprised when he told 'me that, to hear it, because. I had known' for some little' time that his attitude had changed. Just what had been wrong with him I didn't know, but that his belonging to any labor organization did not license him and I would not permit ,him ,to go on violating the rules, that sooner or•later,would get his company and himself into trouble [Italics supplied ] - - i15•Counsel' for' the respondents-interrupted Duvall's testimony to "particularly direct'' the examiner's attention to this portion of the testimony. THE BALTIMORE TRANSIT COMPANY 177 Duvall then cited the nature of a number of briefs, beginning February 4, charged against the employee, such as not pulling to the curb, not calling',out streets, and not stopping at rapid transit. crossings and fire engine houses. The employee, however, was not shown the briefs, in order that he might know the specific charges, nor was he told who had filed them against him.48 ' 40 Pennington's entire deportment record, from January 1939 to the date of his discharge, is as follows : 1939-no violations 1940 Nov. 29 Failed to make rapid transit stop at Howard & Centre causing G Bus to make second stop___________________________________ R&Ce 1941 Jan. 10 Failed to call streets while operating T T______________________ R&C Oct. 2 Failed to pull to Curb. Howard & Pratt Sts____________________ C* 1942 Jan. 12 Arrived at Howard & Preston Sts. 2 minutes sharp______________ C Jan 30 Arrived Howard & Pratt Sts. 5 • 32 PM. Due at 5: 29 PM ------- R&C Feb. 4 Due off at 6: 10 PM. Arrived Potomac St 6 02 PM Feb. 4 Failed to make rapid transit stop Preston & Brevard 5': 42 PM. Feb. 4 Failed to pull to curb Federal &,Harford 4 • 35 PM. for 15 pass. Feb 4 Crossed Preston & Cathedral on ted traffic light 4 • 44 PM. Feb 6 Failed to make stop at fire house W. Blvd. & Archer St. 4: 59 PM. Feb. 6 Failed to make stop at fire house W. Blvd. & Archer St. 5 : 23 PM. Feb. 6 Failed to pull to curb at Preston & St Paul to discharge pass. Feb. 6 Failed to pull to curb at W. Blvd. & Archer to discharge passengers at 4:58 PM. Feb. 6 Failed to wait for pass. from #19,6ar Federal & Harford 4: 34 PM. Feb. 6 Due off at 6: 10'PM. Arrived Potomac St 6: 03 PM. Feb. 6 Failed to stop at school house Federal & Eden 8: 41 AM Feb. 6 Failed to wait for transfer pass Federal & Harford 8 . 45 AM. Feb 6 Failed to make rapid transit stop Lanvale & Carrollton 6: 59 AM. Feb. 6 Crossed Preston & Guilford on red traffic signal 7 : 12 AM. Feb 6 ' Failed to make stop at school house at Federal & Eden 8 : 40 AM. Feb.'6 Failed to pull to curb at Preston & Calvert 8: 54 AM Feb. 6 Failed to make rapid' transit stop Preston & Cathedral 4: 42 PM. Feb. 6 Arrived Preston & Howard 4: 43 PM. Due 4. 46 PM. Feb. 6 Failed to make rapid transit'stop Preston & Brevard 5 . 42 PM., Feb. 7 Failed to make sapid transit stop Preston & Cathedral 11 : 33 AM. Feb. 7 Crossed Preston & Charles on red traffic light 5 : 22 PM. Feb. 7 Arrived Preston & Howard 10: 51 AM. Due at 10: 53 AM. All of these except the first two were handled by Mr. J. B. Duvall at Main Office, Feb. 7, 1942. Feb. 13 On short list for $1.00. Talked to Woolston Feb. 14 Failed to call Camden Station at 10 : 41 AM. and also failed to call Feb 14 , Feb. 17 Feb. 18 Mt Royal Station 10: 51 AM. Rep. by Woolston. Arrived Howard & Pratt St. 10: 42 AM. Due at 10: 45 AM______ R&C Arrived Howard and Pratt St. 5: 301/2 PM. Due at 5: 321/2 PM__ R&C Arrived Wash. Blvd. & Freemont 4: 57 PM. Due at 4: 59 PM____ R&C Feb. 18, " Eastbound 8: 12 AM. failed to call' any streets' from Monroe St. Loop to Luzerne St Loop ---------------------------- I______ R&C Feb. 19 Eastbound 9 • 59 AM. failed to call any street from, Preston and Ca- thedral to Potomac St_____________________________________ R&C Feb. 21 Standing Federal St. Loop 9: 35 AM. smoking cigarette with two passengers on trolley. Mar. 3 Talked to regarding continued. violations Admitted not calling streets and stated that he could not call them. Told'if he con- tinued this practice Mr. Duvall would send for him again.. S. Woolston. ' Mar. 7 8 similar violations, did not' deny them. Dismissed. JBD: ' . •R means "Reprimanded," C means "cautioned," R&C means "reprimanded and cautioned 613024-43-vol. 47-12 178 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennington admitted some of Duvall's allegations, but denied that of not pulling to the curbs, and insisted that he was driving the same as he had for 20, years.' Duvall countered with the statement that he had.followed him, himself, and had caught him not pulling in at curbs: The superintendent then told Pen- nington that he did not have his mind on his work, and was trying to do too many things at once. He further declared that the ink was hardly dry on the-wage and working agreements, just entered into with the Independent, and he was "out 'do-_ this.", Finally, he told the employee to "get that thick head" of his together, think it over, and go back to work 78' Three days later, as found above, Pennington was expelled from the Independent, an action which received the open approval of Potter and Duvall. As found above,- in the presence.of his fellow-emplbyees'Pennington's efforts to organize the Union were declared by Duvall to be like "giving aid to Hitler." Despite Duvall's warning,, Pennington continued his union activity. Soon after February 10 Inspector Harrison approached him, and asked-him to come back, on "their side," pointing out the difficulty he would find in organizing the employees. He urged Pennington to tell the men they had made a mistake.49 Between February 13 and February 21, inclusive, according to Pennington's department record quoted in footnote 76 above, 8 more alleged 80 violations were, recorded. On'March 3, nearly two weeks after the last preceding violation-had been filed against him, Pennington was called in by Woolston and "talked to' -re-, garding continued violations,' according to the notation on the record. Penning- ton admitted to Woolston that he did not always call all stations, and neither admitted nor denied the charges of running ahead'of time. ' After March`3, Pennington continued his union activities. On March 7,' he reported for his early morning run, but was told by the dispatcher to be at Duvall's office at 10 o'clock. Woolston and Martin were in Duvall's office when Penning- ton was admitted. Duvall had before him 7 individual briefs,81 as follows. Mar. 1 Failed to pull to curb. - Mar. 4 Failed to call streets. Mar. 4 'Failed to bring car to stop-- Mar. 4 Crossing against red light. Mar. 4 'Arrived garage 5 min. ahead of time. ' Mar. 5' Arrived garage 7 min. ahead of time. Mar. 5, Failed to bring car to stop. - The interview was brief. Duvall informed Pennington that he was doing the same things, again cited the nature of some of the briefs, and stated that he would have to let him go. Duvall did not show Pennington the briefs, nor did he tell him who had charged him with the alleged violations. Pennington admitted that "Duvall at first testified that Pennington did not deny any charges on February 7. He later admitted, however, that on this occasion the empl'oyee• denied failing to pull to the curbs and running through a red light. 78 The testimony of both Pennington and Duvall as to what was said at this interview of February 7 is in'substantial agreement. 79 Pennington's testimony on this incident is undisputed. 80 The respondents did not call witnesses to testify as to , whether or not these viola- tions actually occurred , but only that the briefs had been recorded . As discussed more' fully hereinafter, errors in the deportment record of Pennington were discovered during the hearing, and Duvall himself admitted that he could not attest to their validity. The. Trial Examiner clearly informed counsel for the respondents that these documents, at the time of their, admission in evidence, would not be considered as proof of •actual violations, unless and until further evidence upon them was adduced Si The record, quoted ., in footnote 76, states "8." Duvall admitted that one was a: duplicate. THE BALTIMORE TRANSIT. COMPANY - 179 he had failed to stop at rapid transit crossings and fire engine houses, and had not called out streets, but said he could not recall running through a red light. Duvall discharged him. I n b. The respondents' contentions as to Pennington's discharge Duvall testified that he discharged Pennington because he couldn't stop him from violating the rules and regulations. He admitted that prior to February 4 the employee's record had been "good. Duvall also testified that, "shortly, prior to. February 7" he sent for Pennington's deportment record, because Woolston and Martin told him Pennington was having a "good many violations recorded against him," and they were-having difficulty in straightening him out He further testi- fied that Woolston had spoken to him about this matter "sometime within a week" before,February 7. When it was pointed out to Duvall that the records showed no violations filed against Pennington until February 4, Duvall said that it might have been "two days or three days or four days" before the 7th that the line superintendent "told me himself that this man, had briefs piling tip on him." Duvall's testimony on this point lacks corroboration by Woolston, Martin, or the responde'nts',records. Even if Duvall's testimony is to be accepted at face value, the records clearly establish that two days before February 7, there were only the few briefs of February 4 "piling up;" and three or four days before, there were none. There is no substantial evidence that Woolston had made efforts, before February 7, to "straighten" Pennington out. The Trial Examiner cannot credit Duvall's testimony on this point, and finds that the employee was not, summoned to his office on February 7 for the reasons offered by the superintendent-of trans- portation. As to the alleged violations themselves, the respondents did not call the super- visors who filed any of the briefs against Pennington. That errors were made in some of them was proven and admitted during the hearing. When it was pointed out that Pennington was not working at the time cited on one of the briefs of March 5, Duvall admitted that it had been erroneously charged against Pen- nington.'2 Furthermore, when it was pointed out that although Pennington's routing had been altered sometime before, the time schedule had not been short- ened accordingly, Duvall admitted that 4 minutes should have been deducted from each of the briefs charging Pennington with arriving at the garage or ter- minal ahead of time. Of this type of briefs cited against Pennington on March 7, and noted above, that of March 4 should have been only 1 minute ahead of time, and that of March 5, 3 minutes ahead of time. ' Thus, of the seven briefs brought against Pennington on March 7, for which the respondents contend he was dis- charged, 3 were 'errors, and one of them completely false The Trial Examiner considers it unnecessary here to determine whether or not Pennington committed any or all of the specific violations charged against him. He admitted some,of them, others he did not deny. The respondents adduced no proof to rebut Pennington's testimony that immediately prior to his discharge he operated the same as he had for 20 years Even if it be assumed that all charges filed agaiiist him from February 4 to March 7 were actual and accurately re- corded, the assumption would only serve to support the testimony of Woolston that "some men would give you a chance to write 20 briefs against, them" in, a single night, if followed, by inspectors, And, as found in the same subsection, such minor infractions of the company's rules were common practice. 'Although many days had elapsed since discovery of this error , and despite the fact: that 'theridentity of the employee against whom the'brief should have been 'charged was known by Superintendent Woolston, the latter admitted on cross -examination that the individual had not been called to account for the alleged violation. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner concludes and' finds that there is no merit in the respond- ents' contention that Pennington wasp discharged because of violation of rules. c. Conclusions as to Pennington's discharge As in the case of Perry, discharged the day before, Pennington had incurred the open displeasure of the management for his union activity. Despite the warning of Duvall and Harrison, Pennington continued to exercise the right guaranteed to employees by the Act. By his action, in discharging Pennington on March 7, Duvall gave concrete demonstration of his feeling against the employee, as ex- pressed on February 17, and carried out his. promise of ""solid support" to the Independent in its campaign to, combat the Union organization. It is clear that beginning on February 4 a special effort was made by inspectors and others to catch Pennington violating rules. It is reasonable to infer that they did so at Duvall's behest. The accumulation of briefs served as a ready pretext for discharging the employee, while the real reason. was clearly his union activity. The Trial Examiner finds that Pennington was discriminatorily discharged on March 7 because of his union activity. (8) Discharge of Carroll Lee Strupp a. Events leading'up to the discharge At the time of his discharge on March 19, 1942, Strupp had been a bus driver on the "Q" line for about 9 years. He was first employed in 1928 as a conductor: He thereafter served as a motorman until transferred to bus driver. Strupp joined the Union on January 27, 1942, and thereafter solicited' member- ship among the employees at the Bush Street garage and other places on the system. A few days after Perry's expulsion, from the Independent, Strupp was nominated for his vacancy on the board of representatives. Strupp thereupon on February 25 went to Wisner, his line superintendent, told him of his nomination, and said that he thought it fair to inform him that he was also a member" of the Union. Wisner asked him why he had joined the Union. Strupp answered that he had found the Independent was illegal. Wisner then informed, him that just that morning he and Martin had submitted his name, as one among five, for pro- motion. After Strupp left his' office, Wisner wrote the following letter to Duvall. For your information Chauffeur C. Strupp, Badge 147, in service 14 years came'into my office today and stated he wanted to inform me that he had joined the A. F. of L. and that he had put in an application to run as repre- sentative for the men in the independent Union at Bush Street Garage. I asked him why he joined the A. F. of L. and he said he had been studying up on the labor situation over the country and wrote and received papers ,from the Labor Relations Board a' in Washington and he finds through this information that the Independent Union is run against the laws and the Government is in back of the other unions.' Strupp says the men now repre- senting the groups of men are being paid by the Comp'mny to be in their 83 When asked why he wrote this letter to Duvall,, Wisner answered that he thought it was important,' "for the simple reason that he came in and' told me that he joined' the A. F. of L. and also was going to represent the Independent Union." He further testified that "it was so out of the ordinary that I never heard of anything like that before; and he (Duvall ) Is my , superior, and I thought it was, no more than right' that I should. let him know that ,, s, * „ * ' Lhave instructions from Mr. Duvall to notify him. of anything out.of the ordinary." ''{ THE BALTIMORE TRANSIT COMPANY 181 favor when the Company wants them to I asked him how he knew this and he said all the Committeemen that are off now are being paid by the Company and when they go to dinners or take trips it is all paid for by the Company. Strupp had to leave at this time to take his run due out 4: 01 PM and stated he would like to put the interview off until he had more time to talk, I told him I would be glad to hear him when he had more time: 14 On the following day, while at the chauffeur's table in the office preparing for his day's work, President Clarke of,the Independent approached him' and asked to speak "privately" to him in Martin's office. ' When in the Supervisor's office, Clarke asked. him if it were true, as he had learned from Wisner, that Strupp had joined the A. F. of L. A day or two later he was calletl'into, Martin's office and accused of starting a disturbance at the barn the night before. Strupp explained that an argument had developed 'over the rumor that he had withdrawn from the election. Mar- tin declared that he had told the dispatcher to throw him out if it happened again The Supervisor then called Strupp's attention to two briefs against him, told him he had his mind more on union activities than his work, and warned him that he was not going to stay around unless he railroaded to a "T".' Martin further told him that Strupp had been his ace in the hole for dispatcher, thanked God that he had not gotten the promotion and declared, "Wouldn't you put me in a hell of a fix." At their meeting of March 3, representatives of the Independent expelled -Strupp from the organization, because of his membership in the A F. of L. On the same day Strupp was called into Martin's office. When Strupp arrived, Martin went out, leaving the employee with Clarke and Pittinger, a representa- tive. Strupp was informed of his expulsion. On March 7 Martin again called Strupp to his office, and cited the nature of a number of briefs against him. Strupp said he couldn't understand why so many briefs were being filed against him Martin replied, according to a letter he wrote to Duvall on March 9 that "his trouble was he was working with other things on his mind " During the conversation, which in the same letter Martin described as occupying about 30 minutes, the Supervisor remarked that he had heard Perry was getting $10,000 to organize the company. Strupp countered with the statement that he had heard the company had $50,000 to fight organiza- tion with Martin then said that he couldn't see why the men wanted to cause all "this trouble," and asked Strupp why, if lie didn't like it around here, he didn't quit. Martin further accused Strupp of running up,and down the line with his eyes open, but of not seeing where he was going. 84 During the bearing it developed that these "papers" were issued 'bv .the Bureau, of National Affairs of Washington D C, prepared • by the staff of the Labor Relations Reporter. 85 The findings as to this incident rest upon the credible testimony of Strupp Martin denied telling Strupp that he would have him thrown out, or of accusing him' of starting a fight. He admitted, however, knowledge of the argument to which Strupp referred, and of talking to the employee about it He also admitted having warned Strupp , although not "in that sort of language,"-referring to "railroading to a T ,"-but placed it as having occurred at a later occasion Martin admitted having been told by Wisner that Strupp had Joined the A . F of L . He did not deny, having spoken to Strupp about the proposed promotion , or about his having his mind on union activities sa The findings as to this interview are based , in the main , upon Strupp's credible testimony. Martin admitted that Perry was mentioned in the conference, but denied ever telling Strupp that the employees could leave if they wanted to. The 'Trial Examiner does not credit Martin's denial. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At about 6 o'clock the same afternoon, Strupp telephoned to Martin at his home, and agreed to talk.87 Martin promptly obtained a relief for him, and soon met him at the garage Strupp told Martin that he knew the company was put- ting pressure upon him with briefs, and that since it was' a case of talking or getting fired that he had decided to talk. Martin then asked him about the organization, and informed, the- employee that he knew . where, they had obtained the organizer from. , Strupp told Martin that he was pretty close to Perry, and indicated that he might be able to obtain the membership list 88 Two or three days later Strupp was told by the dispatcher that Martin wanted to see him. When Strupp went into his office, however, Martin looked around his desk, and then pleasantly said that he didn't want to see him about anything. Strupp offered the information that Perry had been at his house that morning, and had 65 union, applications with him. Martin then said, "Carroll, you have got. yourself in a, precarious spot,-why don't you do something about 'it?"" Strupp replied that he had signed up quite a few men at that location, and if he should tell them he had made a wrong move, "probably some of them would kill me." Martin declared that possibility was unlikely, but Strupp said he wanted to think it over for awhile. Martin then said, "You do, and step iu and,see me." On March 13 Strupp approached Martin, told_him he had thought it over, and wanted to admit having made a mistake. Martin approved. Strupp said, how- ever, that he did not want to tell the men one at a time, but in a group, to prevent misinterpretation of what he said. Martin told him to go ahead, and, offered to have Pittinger, the Independent representative, help him. Strupp then told the dispatcher that he had Martin's permission to speak to the men. He mounted a bench, and about 25 employees grouped around He told them that they knew he had been active in organizing and that he had been running for representative. During that time, he continued, he had talked to Wisner, Martin, Clarke and Perry, and in that time had found that the only one who had not lied to him was Perry. He then declared that he was_not going to be fired for briefs or criticism of his work, but because he had been fooling around with union activities. One employee, Flaherty, whose discharge is discussed hereinafter, applauded him openly, and started to walk out with him. Immediately after Strupp had finished his statement to the men, he was sent to Martin's office by dispatcher Woolford. Martin upbraided him, declaring that he was a trouble maker, if ever there was one. The Supervisor accused him of double-crossing him. Strupp insisted that he had told him that he was going to tell the men what a mistake he had made. sr Martin testified that Strupp asked for a relief on the ground 'that he had something important to tell, him. sa The findings as to this incident rest upon Strupp's testimony Martin testified that Strupp told him that he had gotten himself in the middle, that he had not joined the A. P of L to make trouble, but to get information ; and that he was afraid Perry would "get him " Martin, however, did not deny reference to Perry and Union "applications," stating only that he did not remember any mention of that In view of subsequent events, Strupp's version is more reasonable of belief, particularly since the record shows that Martin's recollection of the occasion was confused, in that, at first, he placed it as arising out of his calling Strupp in on briefs. The Trial Examiner can place little reliance upon .Martin's letter of March fi to Duvall It was written two days after the event, and clearly does not contain a full account of the conversation that night. Although Martin denied ever telling Strupp that he was on a :'precarious spot," or that he asked him why he didn't get off that spot, Martin,did not deny the occasion of the above interview, or the other statements attributed to him by Strupp, upon whose testimony the findings are based. i THE BALTIMORE TRANSIT COMPANY 183 Martin then declared , in effect, that he would be watched carefully , and Strupp replied that he expected that he would be "like a Jew in Germany." 90 That same day Martin wrote to Duvall the following letter: This afternoon Chauffeur C. Strupp, Badge 147, came in my office at about 3: 30 P. M. and said lie would like to talk to me. I asked him what he wanted and he said he had not slept for 3 weeks and wanted to' clear himself of the mess he was in and he asked if he could ' go out in the assembly and talk to the men regarding his position as he wanted to get himself square with the men again. I told Strupp I did not get him in his mess and I was not going to tell him how to get out of it and he would have to get out the same way he got in. About two minutes later Dispatcher Woolford came into my office and said Strupp had made a speech on a bench and told the men he had been to Washington and had talked to Ray Clarke and C. Perry and found he was doing right in sticking with the A . F. of L. I sent for Strupp and asked him what his idea was in going out there and doing what he did . He said it was a free country and he had a perfect right to do what he did. I told him I had never seen a man change as often and as much as he had in the past two weeks. As will be noted in the summary of Strupp 's deportment record, quoted in full hereinafter, within half an hour after his speech to the men another brief was noted against him, although none had previously been filed since March 6, the day before Strupp had agreed to "talk." And within a period of 4i hours, 4 briefs had been noted. The next day, about an hour and a half before he was due to take out his run, Strupp's wife called the office and reported him ill . He did- not work that day or the following, which was Sunday. On Monday he reported to Dr. Plassnig, one of the company's physicians . According to the doctor's testimony which the Trial Examiner accepts as true, "he called on me in the morning office hours shortly after 9 o'clock, and seemed to be quite agitated , and complained of extreme nervousness and he couldn't sleep, and when I asked him how he accounted for this nervousness he said that he was being spied upon and shadowed and run down because he signed up with the AFL." The doctor gave him a prescription, and advised him to stay at home so "they couldn't follow him through the house." Two days later, on March 18, the doctor called at his home. Strupp was out, and the physician left a message for him to visit his office the next day. Strupp called as requested , reported that he was feeling "swell," and wanted to go back to work He was given a release, and reported for work the same morning, March 19. Upon reporting he was told to be at Martin's office at 2 o'clock. At Martin's office, he was instructed to go to Duvall's office When admitted to the super- intendent's office, Martin was already there Duvall turned to Martin and asked, as Strupp entered, "Is this the fellow you have been talking about ?" and then asked what he had against him. Martin handed the superintendent a number of briefs. After a brief comment that the employee had been "cutting up," Duvall asked where he had been the previous Saturday night, at midnight. Strupp said either at home or at the neighborhood lunch room. Duvall pointed out that he was w Martin denied giving Strupp permission to talk to the-men, or that Strupp asked for it. However, both the letter quoted immediately above and the Supervisor 's testimony Indicate clearly that permission was asked and granted , and that Martin's sole objection was the employee's not telling the men what he had expected. '184 DECISIONS? OF NATIONAL LABOR. RELATIONS BOARD .supposed to have been sick, and when Strupp asserted that he had been, asked the cause. Strupp replied that it was his nerves, upset by being followed. Duvall said his sickness was caused by union activities and demanded to know why he, had joined the Union Strupp replied that he had found out that the Independent was "violating all the laws of the United' States." Duvall declared that he."was going to violate another law " and discharge him. He turned to Martin and told him to'make out' Strupp's time.81 b. The respondent's contentions as to Strupp 's discharge Duvall testified ' that he discharged 'Strupp "for violation of instructions and not complying with the doctor 's instructions when he was supposed to be off sick." He further testified that he sent for the employee on March 19 because Martin or Wisner had taken ' up with Strupp "several violations ," and because, during his five days off, "he went to the company's'medical examiner and he was doing exactly what Perry did, in ' a sense, he was not staying home, not acting the way an 'ordinary sick man would and when he was released some additional briefs had come in on him.". The superintendent testified that when he confronted Strupp with four briefs the employee did not deny them . The'employee was asked , according to the super- intendent's testimony , what doctor he had seen and what advice had been given ,to him. When ,Strupp admitted that he had been told to keep "quiet " Duvall, ac- cording to his own testimony , accused him of not „obeying these instructions, and pointed out that be knew he .had been out "sometimes , away after midnight.;' Also according to Duvall , Strupp then told him that he had been engaged in labor activities and over his objections, proceeded to tell him what they were. When the employee . told him that he had been to Washington within the past 30 days and found out, according to Duvall, "that he as an American citizen was exercis- inghis constitutional , right in , lining up with the Federation of Labor" and that the company had violated every "law of the land," he then told Strupp that while he didn't think , the company had violated such laws , "I would probably violate one more because I wasn't going to keep him and I let him go." Duvall also testified that he had , before Strupp's discharge , received the infor- mation contained in the, letters from Martin and Wisner, above referred to, but said that he did not "think that the contents of either letter had much bearing or any on his dismissal." Strupp's deportment record 1939 •, ' Feb. 10 Mar. 10 Apr. 11 June 15 Oct. 7 Sitting behind operator of trackless trolley ,talking. to him------------------------------------.------- Crossed Polaski St.' on a red light------------------- 'Failed to make a full stop at Redwood & Lib. St- ---- Operating bus with 14 windows closed -------------- Failed to turn out lights or shut off motor while laying Rep* Rep Rep C* r. over------------------------------------------ Rep • Rep. means "reprimanded," C means "cautioned ," R&C means "reprimanded and cautioned," and WEM means interviewed by W. E. Martin , the Supervisor. 0' The findings as to this conference are based upon Strupp's credible testimony, as well as the probabilities inherent in the surrounding circumstances. Duvall's account of what was said on this occasion, which the undersigned cannot accept as wholly accurate, is dis- cussed in the section next following. - THE BALTIMORE TRANSIT COMPANY . ' 185 1940 Jan. 9 Sitting in bus smoking cigarette-------------------- Sus 1 day Mar. 24 Holding conversation with man sitting in back of chauffeur-------------------------------------- Rep Apr. 10 Taking layover at Gas Station at Monroe St., leaving 2y2 min. back---------------------------------- Rep June 15 Failed to wait for car at Edmondson Ave------------ R&C Oct. 7 Missed 36 Orleans St. 6:52 A. M. Reported 7:01 A.M. Oct. 7 Was due to leave Chas. & Balto. at'8:04 AM. Was at Mulbery 8:03 AM------------------------------ Rep Oct. 16 Issued transfer without cancelling time-------------- Rep Noly. 28 Missed 32 Orleans St. 7:08 AM. Reported 7:12 AM. t' '1941. Ma,y 5 Failed to pull to curb at Lombard,and Greene Sts---- Rep Oct. 2 Operating bus without block number, it was in office on board ------------------------------------- C 1942 , Feb. 25 Due to arrive Liberty & Redwood St. 12:01 AM Ar- rived 11:58 AM. Also failed to stop at Redwood St. Rapid Transit stop and traffic signal was not working--------------------------------------- R&C WEM* Feb. 26 Chauffeur 'operating centei doors 'after passengers alight with door switch on dash instead of letting them work on the automatic--------------- ---- R&C WEM Feb. 27 Rep. for drinking in Toneys at Morrell Park. Denied-- R&C WEM Feb. 27 Failed• to stop or slow up before crossing Central & Orleans St. Crossed Central Ave. about 15 miles an hour --------------------------------------- R&C WEM Feb. 28 Failed to stop before crossing Orleans & Central Ave. which is R. R. Crossing at 5:57 PM-------------- R&C Mar. 3 Failed to make rapid transit stop Preston & Milton 10,:34 PM------------------------------------- R&C Mar. 3 Failed to make stop for R. R. crossing Wilkens & Catherine 9:25 PM ----------------------------- R&C Mar. 4 Arrived Patterson Pk & Biddle 4:25 PM. Due 4:27 PM ------------------------------ `------------- R&C Mar. 4 Failed to make stop for RR crossing Penn & Lombard 11.02 PM -----------------------------------R&C Mar. 4 Failed to make stop for RR crossing Central & Orleans 10:51 PM-----------------------------'-------- R&C Mar. 4 Failed to make rapid transit stop Preston & Milton ' 10:43 PM and crossed street on red traffic light----- R&C WEM' Mar. 4 Failed to stop motor on layover N & G from 10:36 to 10:41Y2 PM------------------------------------ R&C WEM Mar. 5 Failed to make stop for RR crossing Lombard & Penn 10 13 PM------------------------------------- R&C Mar. '6 Failed to make rapid transit stop. Broadway & Monu- ment 10:27 PM-------------------------------- R&C *Rep, means "reprimanded," C means "cautioned ," R&C means "reprimanded and cautioned," and WEM means interviewed by W. E Martin, the Supervisor; 186 DECISIONS :OF NATIONAL -LABOR RELATIONS BOARD Mar. 6 Smoking on Bus at Halethorpe Terminus from 9:40 to 9:50 PM-------------------------------------- R&C Mar. 13 Failed to pull to curb Lombard & Fremont 5:44 PM. Mar. 13 Failed to stop for RR crossing Lombard & Penn 4:01 PM. Mar. 13 Crossed Orleans & Central'8:36 PM on amber light. Mar. 13 Arrived Patterson Pk & Preston 4:25 PM. Due 4:27 PM. Mar. 14 His wife reported him sick at 2:30 PM. Said he was nervous DISMISSED AT MAIN OFFICE BY MR. DUVALL MARCH 19, 1942. c. Conclusions as to Strupp's discharge In determining whether or not merit can be found in the respondents' conten- tions as to Strupp's discharge, the Trial Examiner must consider not only the recorded facts, but the surrounding circumstances, including the general practice of writing up briefs, as described heretofore. As in the case with other similar records produced-by the respondents, no substantial proof was offered that any violations were perpetrated by Strupp, but only that certain briefs had been recorded. For the purpose of this analysis, however, the Trial Examiner will assume that violations occurred as recorded. It is to be noted that for the entire year of 1941, the employee had- but two entries made on his deportment,sheet. In. 1942, the initial entry shows that the first violation charged against Strupp occurred within a few hours °- after Wisner had been informed on February 25 of his union affiliation and after Wisner had- written to Duvall, as described above. Furthermore, although it has ,been estab- lished that customarily the line- superintendent handled briefs, the records here show that, beginning with the February. 25th entry, Supervisor Martin inter-' viewed Strupp on the briefs. Although Wisner, the line superintendent, at first testified that he turned Strupp's case over to Martin as a matter of his own judgment, because violations began to "pile" in, when it was pointed out to him that until February 25 there had been no briefs since October of 1911 he changed his testimony, and admitted that Martin instructed him to turn the briefs over to him. After February 25, with the exception of March 1-and 2, briefs continued to be filed against Strupp daily up to the night before the employee went to Martin and' offered to "talk." Throughout the ensuing week no briefs were noted until about 30 minutes after Strupp had, as Martin expressed it, "double-crossed" him. And in the following period of about 4 hours, as many briefs were charged against him. It is plain that more than normal coincidence is required to explain the sudden recording of briefs during the time management believed Strupp to be active in the Union, and the equally sudden cessation of such recording while Martin had been given to believe that the employee had recanted.and would co- operate in breaking up the Union. It is reasonable to believe, and the Trial Examiner finds, that as soon as management became aware on February 25 of Strupp's union activity, inspectors or others acting under management's instruc- tion followed Strupp for the sole purpose of recording briefs against him It is likewise found that this "hounding," as Inspector Graves characterized such 02Disp,itcher Woolford, who made, entries on the deportment record, admitted that an error had been made in the entry for February 25; that it should have been 11 : 58 p. m., and not a in. THE BALTIMORE -TRANSIT COMPANY 187 practice, ceased during the week that Strupp was apparently "cooperating"-with Martin but that it was promptly resumed on March 13. Furthermore, the Trial Examiner concludes and finds that as in the cases heretofore described of Perry, Pennington, and others management's purpose in obtaining briefs against Strupp was to create a pretext for discharging the employee. It follows that the re- spondents' contention that in part Strupp was discharged because of "violations," is without merit, and the Trial Examiner so finds ' In the absence of credible evidence to the contrary it is reasonable to infer that management only knew of Strupp's being out "at midnight" the Saturday before his discharge by having the employee followed. The Trial Examiner fails to find that any one of the respondents' 293 rules makes it mandatory that an employee oe at home at midnight, when off duty. Dr. Plassnig's testimony, which the-Trial Examiner credits, indicates clearly that he told Strupp to stay at home- not t%solely as a health measure-but to keep from being followed. In any event, within 2 days after visiting the doctor Strupp had recovered and reported that he was ready for work. The Trial Examiner finds no merit yin Duvall's conten- tion that, in part, Strupp was discharged because he did not comply with the Doctor's instructions. The real reason for Strupp's discharge lies in his refusal to abandon the Union and in his continued union activities, and the Trial Examiner finds that on March 19-he was discriminatorily discharged by Duvall. 9. The discharge of Joseph M. Flaherty a. Events leading up to the discharge Flaherty has previously been identified as the employee who applauded Strupp's speech to a group of employees on March 13, which was soon followed by the latter's discharge. ,, - He,was first employed as a bus driver by the respondents in October 1941. At the time he was interviewed, as an applicant for employment, he was asked by Duvall whether or not he had any union affiliation and was informed that -an independent .union was in existence 0' Flaherty denied any union affiliation and was hired. He was assigned as an extra driver, a position-held by him until his discharge. During the following months he was assigned to different routes. Soon after his employment he joined the Independent, signing an application given to him by Perry, then a representative. On March 1, 1942, Flaherty joined the Union, signing an application also offered him by Perry. Within a few days after joining he was approached by Inspector Peregoy, previously identified as instrumental in aiding Duvall to break up organizational efforts in 1937. Peregoy told him that the, fellows join- ing the Union would ,lose out, would get themselves into a lot of trouble, and asked if he had joined. Flaherty gave him a noncommittal reply. Peregoy `declared that if he were a member, he would lose out.04 Flaherty nevertheless &' Duvall did not specifically deny Flaherty's testimony on this interview, but stated : "I told each man that was employed that he did not have to belong to any union, not even the Independent, if he did not so desire." At another point in his examination , Duvall denied ever asking new employees whether or not they were members of any other labor organizations, but added, "Many of them told it voluntarily, in the course of the conversa- tion." Duvall's anti-union hostility has. already clearly been established, and the Trial Examiner cannot accept his broad denials in the light of many instances of specific proof to the contrary 04leregoy denied ever having talked about the Union to Flaherty. As previously found, however, Peregoy was instrumental in breaking up organizational efforts in 1937. His denial is not-accepted as true. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actively urged other employees to join, passing out leaflets and forms in the lunch room. On March 13, Flaherty was the only one °' of the group of employees -openly to applaud Strupp's'speech. Soon thereafter Flaherty began to notice increas- ing surveillance of•inspectors. On March 16, for the first time since his employ- ment, two briefs in a single day were charged against him, according to his department record. On March 18, nine briefs were filed. The next morning Martin, sent for him, and told him that he "must have been having a picnic on his line last night." Flaherty asked to see the briefs. He glanced at them, and declared, "You framed me right, didn't you'" and when Martin asked why, added that it looked like a "Hitler" job. Martin thereupon told him that they could use him no longer since he did not seem to be taking an interest in his work. Flaherty testified, "That/sounded like he was firing me." He turned in his badge and equipment. About 2 weeks later he called Duvall and asked to be reinstated. Duvall replied that he would not have him if he were the "last man on earth." 08 b. The respondents' contention as to Flaherty The respondents contend that Flaherty was not discharged, but that he quit.,' Counsel for the respondents declared "He quit cold, of his own volition." Martin testified that when he started to read off the briefs to Flaherty, the employee took off his badge and declared "I am' going to resign," and that he promptly accepted the resignation. The Trial Examiner cannot accept Martin's testimony on this point as true. Martin twice denied that Flaherty claimed that the briefs were false, but insisted that' "Flaherty didn't say anything," simply took off his badge and resigned. When confronted with a letter dated March 19', purportedly written by him to Duvall, he admitted that his recollection was not clear, and that Flaherty"might have said that." In this letter, just referred to, Martin wrote: I had 9 briefs; and after reading them to him, he said the man that wrote them was a liar. I told him they were'not liars he then took his badge off and threw it on the desk, and said lie was going to resign. I told him that was O. K. that I would give him his time. When counsel for the respondents offered in evidence Flaherty's deportment record he stated, "if it should be held that we did discharge him we want to show that we-had good "grounds for doing so." Martin was then on the witness stand, and at this point the following colloquy occurred : Trial`Examiner WHITTE-ioRE. I would like to ask the witness a question,_ if you have no objection, on that point : When you called Flaherty into your office on March 19th did you intend to discharge him? A No, sir, we had no idea. Q. Was his record such that you would have discharged him in the normal course of events? A. Well, it would have been later if he hadn't improved on it. °G Dispatcher Woolford admitted that Flaherty was the " sole applauder." D° Duvall's testimony on this point differs from that of Flaherty only to the extent that he said "the last man in Baltimore " He gave no reason for the retusal D7 The respondent called three witnesses to testify that they had heard Flaherty say, after leaving Martin 's office, that lie had quit . One was Duvall 's chauffeur , another was nephew of Instructor Woolford Flaherty denied having told anyone he quit The Trial Examiner credits Flaherty's denial. In any case, the issue here is not what Flaherty may have said after the event, but the actual nature of the event itself. THE BALTIMORE TRANSIT COMPANY 189 Q. But at that time his record was not such that you had any Intention of discharging him at that time? A. In the first place, Mr. Examiner, I couldn't have discharged him had I wanted to ; that was beyond my authority to do. Q. Or recommending his discharge to Mr. Duval? A. No, sir ; I had no idea of that. c. Conclusions as to Flaherty's discharge Martin denied having told Flaherty that he could use him no longer. To accept this denial as true would necessitate crediting the remainder of his testimony on this interview. To credit this testimony to the effect that on this occasion he had no intention of discharging Flaherty or of recommending such discharge, because of his deportment record, would leave unexplained not only his prompt acceptance of the alleged resignation but also Duvall's hostile refusal to consider. the employees' reinstatement "if he were the last man on earth." Thus to believe that Martin did not make the above-quoted statement leads but to a conflict of unreasonable conclusions. While it cannot be found, from Flaherty's own testimony, that Martin stated in so many words, "You are discharged," the supervisor's declaration that he could not use the,employee any longer carried but one unmistakeable implica- tion, correctly interpreted by Flaherty. Flaherty considered himself discharged, he promptly received his "time," and any hope of reinstatement by Martin's superior was dissipated by Duvall soon thereafter. The Trial Examiner is not impressed by Martin's testimony that he had no authority to discharge any employee. While true that customarily Duvall alone exercised this power, the record establishes that in July 1941, employee Per Dieu was discharged by Supervisor Smith, whose powers are relatively the same as those of Martin. In any event, it is well established that the respondents themselves precipi- tated a situation from which Flaherty emerged without a job. To meet the evidence adduced by the Board, in support of the allegation of discriminatory discharge for union activities, the respondents were provided full opportunity not only to refute this evidence but also to give a reasonable explanation, if any, of Flaherty's separation from his employment. The respondents failed in both respects. Flaherty's discharge was plainly of the same pattern as others discussed herein. He refused to heed i?eregoy's warning, but continued his union activi- ties. Immediately after his open applauding of' Strupp's speech, which was admittedly known by management, he was followed by supervisors and briefs in unprecedented numbers were filed against him. The Trial Examiner finds it unnecessary here to consider the merits or demerits of these alleged violations since, as above found, Martin testified that on March 19 his record was not such That he would have even recommended discharge. The Trial Examiner therefore concludes and finds that Flaherty was dis- charged on March 19 because of his union activities. (10) The discharge of John W. McHenry a. Events leading up to the discharge First employed in January 1927, McHenry worked continuously for the re- spondents for more than 15 years, until his discharge on March 20, 1942. At the time'of his dismissal he had been a trackless trolley operator for about 4 :190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD years, and before then had been a one-man operator. He worked out of the Potomac Street terminal under the supervision of superintendent Woolston. He joined the Union in December 1941 and thereafter actively solicited members. On March 3 McHenry went to Woolston and informed him that he had joined the Union. Woolston asked him "what was his trouble so sudden," 98 and told the employee that while it was his privilege he did not see how he could; benefit himself beyond the present set-up. After some conversation concerning compara- tive wages in other transportation systems, McHenry left. On the same day, Woolston wrote the following letter to Duvall : On this date J. McHenry, operator, badge 2116, in service 15 years, informed me that he had joined the A. F. of L. He stated that he wanted to tell me before I had heard it from others. He said this Company had always been fair with him but that his entire family had always been 100% union and as an American he felt it his privi- lege to do so. I did not question this man as to why he had taken this attitude. But told him that what he belonged to or joined was a matter for him to decide. That our job was to provide public transportation. Two days later President Clarke and Representative,Zumbrun of the Independent, invited him into Woolston's office. Martin and Woolston, there as the employees entered, then went out. Clarke and Zumbrun told McHenry that he would be expelled from the Independent, and would lose both pension and sick benefits. Clarke declared that Perry and Pennington were getting $1 for each union appli- cation turned in, and that McHenry had thus spent one of his dollars. Clarke also stated "You fellows think that we come under the Wagner Act," and when McHenry admitted that he knew little about it, continued, "Damn the Wagner Act,-we don't even come under the baby Wagner Act." ea McHenry was expelled from the Independent on March 10. On the next day he called Clarke by telephone, told him that if he was looking for union information he could take him where it was obtainable. Clarke promptly arranged relief for McHenry and met him at the garage. They proceeded downtown, to a point near the union headquarters. Clarke, however, declined to go in, stating that counsel for the Independent had advised against it. Later that evening, while on the way home, McHenry rode for a few blocks on a bus operated by employee Field. During a short conversation McHenry told Field that Clarke was yellow. The next day Field reported the incident to Woolston. McHenry was thereupon called before Martin and Woolston. The former told McHenry, according to Martin's own testimony, "You are trying to make a fool cut of Clarke." The supervisor warned him against talking to operators while he was in civilian clothes, and told him that if he were caught Potter would fire him' On the same occasion Martin called McHenry's attention to a number of briefs, turned over to him by Woolston, which had accumulated since March 3, the day McHenry informed Woolston of his union membership. McHenry denied committing the alleged violations. During this interview McHenry remarked that he did not realize he was going to be watched 24 hours a day, and Martin agreed that he would have to "railroad" from then on. 08 The quotation is from Woolston's testimony. OD McHenry's testimony as to this incident is uncontradicted. The Trial Examiner finds this to be a clear and specific instance of the role played by Clarke as the agent of the respondents in their anti-union campaign. I Martin denied thus warning McHenry. In view of the fact that he admitted Woolston had complained to him about McHenry's talking to Field and admitted discussing the Clarke incident with McHenry, the Trial Examiner does not accept his denial as. true. THE BALTIMORE TRANSIT COMPANY 191 On March 20.McHenry was sent to Duvall's office. Duvall read off a number of briefs, 12 of which had been turned in since March 10, and instructed Martin, who was also present, to give the employee his time. b. The respondents' contentions as to McHenry's discharge Duvall testified that he discharged McHenry "for repeated violations of in- structions, rules and regulations." In support of this contention, the respondents introduced McHenry's deportment records which, for the years 1940-41-42, are quoted below: 1940 Jan. 26 Failed to stop at R. R. crossing -------------------- Rep Feb. 8 Failed to pull to curb_____________________________ R&C Apr. 7 Running 2 minutes ahead of time___________________ C May 7 Failed to pull to curb properly --------------------- R&C May 19 Failed to collect fares from woman pass. on trolley R&C WEM June 3 Talking to passenger while operating T. T. across Blvd_ Rep & rein- struct Aug. 15 Failed to call streets______________________________ C Aug. 15 Failed to pull to curb_____________________________ C Aug. 15 Started on amber to red light---------------------- Rep Aug. 19 Failed to stop at intersection_______________________ R&C Aug. 26 Short list_________________ ____________ Rep Oct. 5 Failed to ask pass. not to smoke. All windows down-- R&C Oct. 5 Talking to pass. standing beside him while crossing Rep Blvd. Nov. 12 Failed to stop at Bus rapid transit crossing _ _ Rep Nov. 20 Failed to leave end of line on time------------------ Rep Dec. 28 Missed. Reported 2:30 PM----------------------- Talked to 1941 Feb. 14 Failed to display proper destination signs ------------ C June 9 Failed to pull to curb__ ___________________________ Rep Aug. 5 Missed 5:55 A. M. Reported sick at 8:00 AM_______ Talked to Aug. 16 Missed run. Failed to report . Sent to his home and Rep he, was not there. Oct. 19 Injured in auto accident while off duty . Admitted Talked to drinking before accident. Accompanied by V. Fannon & J. Wood. Dec. 22 On short list_____________________________________ Rep 1942 Feb. 14 Failed to call any streets__________________________ Rep Mar. 3 Failed to announce B&O station---- ------------ ---- Mar. 3 Failed to display proper destination sign ----------- - Mar. 6 Pulled into garage 3 minutes ahead of time- _ _ _ _ _ _ _ -- Rep and C. Mar. 9 Arrived in garage 2 minutes ahead of time----------- • W EM Mar. 9 Sitting in operator's seat at end of line smoking------ Mar. 10 Running 2 minutes ahead of time ------------------- Mar. 10 Failed to ask to show school identification cards------ 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following individual briefs were turned over to Duvall after March 10: Date Time Summary of brief Reported by- p. M 3/12 8 09 Failed to pick up 2 pass front of car overcrowded ------------------ Ins. Edrington. 3/17 8 03 Failed to reduce speed crossing intersection------------------------ Woolston. 3/17 8 44 6 Failed to pull to curb properly -------------------------- ----------- Do. 3/l7 8 45 Failed to make full stop for crossing-------------------------------- Do. 3/17 8 54 Failed to reduce speed crossing intersection------------------------ Do. 3/17 8 5456 Failed to reduce speed crossing intersection------------------------ Do. 3/18 8 01 Full speed across intersection -------------------------------------- Ins Pruitt. 3/18 8 1656 -----do------------------------------------------------------------ Do. 3;18 10 59 - --- Do 3/19 10 35 Wbile on layover smoking on trolley- ----------------------- ------- Ins. Peregoy. a m. 3/19 12 39 Failed to stop at rapid transit crossing----------------------------- " Do. 3/19 12 46 Failed to wait for passengers at transfer point ---------------------- Chief Ins. Ford. As in the case of similar records, introduced by the respondents,' no proof wag offered to show' that the alleged violations actually occurred. Nor were they specifically denied by McHenry. The -Trial Examiner; for the purpose- of ap-' praising the merit of the respondents' contention that they were the cause of the employee's discharge, will acept them as substantially accurate. The record establishes that McHenry's briefs were accorded the same 'treat- ment as those of other employees, found herein to have been discriminatorily discharged, but contrary to the respondents' general practice. Superintendent Woolston, under whom McHenry worked, handled all of the employees briefs up to the very day he was informed of his union affiliation. All briefs from March 3 on were,handled by Martin or by Duvall. Woolston's explanation' as to why he turned the case over to Martin is unreasonable. He stated, "... it was the sud- denness ..., which was so unusual.' We hadn't been getting briefs like 'that:" He further testified-that they had not been having a lot of trouble with McHenry; but "at this time I wasn't having any success." ,'Woolston admitted that the employee had a very good record in 1941, and that he only handled his first brief in 1942, that of February 14. It is patent that this single brief,-the first since the previ- ous October,-created no "unusual" situation which, if Woolston's explanation is to be believed, required the transfer of McHenry's case to his superior. I From March 3 until his discharge McHenry like other union members here involved, was under the unusual surveillance of inspectors and instructors. As noted above, within a period of 10 minutes on March 17 Woolston himself turned in 4 briefs against the employee. Although Woolston declared that he considered that McHenry was endangering the lives of passengers and the public by driving as he had reported on that occasion, and although McHenry was directly under his supervision, he admitted that he "had no occasion" to speak to McHenry about it, because the "case had been referred to Mr. Duvall." 2 It is unnecessary to review here the relative seriousness of the violations,as alleged. It is clearly implied in Woolston's testimony that management was interested solely in obtaining a record of accumulated briefs against McHenry, which would serve as a pretext for discharging him. This campaign of collecting briefs, as pointed out above, began immediately after Woolston was informed of his union affiliation. ' The Trial Examiner finds no merit in the respondents' contention that McHenry was discharged because of his deportment record., The Trial Examiner can place no reliance upon Woolston's testimony, not only because it was palpably inconsistent with established facts, but because at one point in his testimony he flatly denied going out to "investigate" McHenry. He later testified that he made what counsel for the respondents termed a "personal inspection of McHenry," and almost Im- mediately thereafter stated "I didn't purposely follow" the employee. I THE BALTIMORE TRANSIT COMPANY 193 c Conclusions as to McHenry's discharge McHenry had long seri'ice with the respondents As soon as his union meniber- ship was made known to management Clarke and Zlunbi un visited the employee, and in the superintendent's office urged hnn to revoke his membership When their efforts failed management exercised its power to discharge him The Trial Examiner finds that the discharge was discriminatory, and caused by his union membership and activity. (11) The discharge of T. J Peacock a Events leading lip to Peacock's dischai ge Peacock, found above to have been one of the leaders in organizing the Union during the latter part of 1941, was discharged on April 14, 1942 First employed by the respondents in 1920, he served continuously thereafter, except during numerous sick leaves, until his discharge At first lie worked as a conductor, later as operator of a one-man car, and at the time of his discharge was operating a trackless trolley. At different times during his long employment, lie received letters of commendation for his work from management and oral compliments from supervisors. During the winter of 1935-36, Peacock suffered from a serious illness. was in the hospital for about 6 months, and remained at home for another 2 months The illness left him with It, "sinus condition" and arthritis, and during the follow- ing years, until his discharge, lie was off sick on many occasions The respond- ents' records show that in 1938 he was out 40 days, in 1939 6 days, in 1940 17 days, in 1941 10 days, and in 1942, prior to the period immediately leading tip to his discharge, was out from January 12 to 20, and from January 23 to 28 During those periods of not iworking his whereabouts and actions were never questioned by management, although he was not confined to bed nor was be ever called by Duvall or Potter. At the time he returned after his long illness, while lie was a representative, Potter told him to take things easy, and to work only when he felt like it. As found above, Peacock had served as a representative for nearly ten years, was defeated in 1941, and shortly thereafter joined Perry and Pennington in their efforts to organize the Union. Like Perry and Pennington, Peacock at first en- deavored to keep his union activities under cover On February 11 Perry informed him that he and Pennington had been expelled from the Independent, and told him of other events at the meeting. Peacock then wrote a resignation from the organization, and prepared a notice announcing his resignation and his affiliation with the Union, outlining the reahons for his action He mailed the resignation that night,, and the next morning, when reporting for work, posted the notice on the assembly room bulletin board While he was there, Acting Dispatcher McKinney read the notice When the employee returned to the terminus after a couple of trips, he observed that his notice had been removed. He was iii- formed, upon inquiry of McKinney, that line Superintendent Weisheit had taken it down about an hour after Peacock had posted it.' That same morning Peacock was relieved from his run, reporting a sore throat. Records produced by the respondent do not reveal when he retuned to work and Peacock was not ques- tioned upon the point ` According to the employee's deportment record, however, 3 R'eisheit adnntted having removed the notice 4 As noted more fully hereinafter, Peacock was inducted into the U S Army soon after his discharge, and his examination took place in Atlanta, Georgia It was considered imprac- ticable by the Trial Examiner to return to Atlanta again , for the purpose of obtaining ,Peacock's explanation . if any, of certain inconsistencies in records produced by the respond- ents during their rebuttal of his examination -in-chief 513024-43-vol. 47--13 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it appears that he was working on March 1, when he missed an early morning run, and was assigned to one later in the day. During the.latter part of February or early in March 6 briefs began to be charged against Peacock, although none of a similar nature had been filed against him since November, 1941. He was called in by Weisheit, who read off the briefs to him. During 'the several conversations Peacock had with Weisheit, on these occasions, he told the superintendent that he believed these briefs to be a form of persecution, directed at him because of his union activities, and that he did not like it and resented it. -Weisheit replied that there was nothing he could do about it,-that it was his duty to call him in. Peacock protested that no one else on his line was being so treated, and declared that he was doing nothing to hurt the company, but only trying to help himself and his fellow employees. On one occasion, when he had been cautioned by Weisheit for running ahead of time, Peacock asked him how many other men he had called in that day for a similar offense. The superintendent replied that every one on whom a report had been filed had been called in. Peacock then questioned 22 employees, whom he knew to run ahead of time, and all denied even being reported.6 During this period Peacock was continuously and repeatedly under the sur- veillance of inspectors, motorman instructors, Weisheit, and Supervisor Smith. According to Peacock's testimony, which the Trial Examiner credits, "One would get on and ride eight or ten or twelve blocks, and get off. On the corner he would get off, there would be another one standing there to get on to take his place, and that continued day after day, several days. I have had them on for round trips. I have had them on from WVoolford, on down, Woolford was the boss of the motor instructors." On or about March 13 Supervisor Smith called him into his- office. Iii sub- stance, Smith informed him that he wanted to talk to him on a personal matter, and cautioned him against revealing what would be said. He then told Peacock that lie was wrong in engaging in union activities, warned him that plenty of trouble would arise from it, and urged him to "quit the whole business " Pea- cock declared that what lie was doing was known by the officials, as in the cases of Perry and Pennington, but that there were others not yet known by the com- pany. He further told Smith that he had promised himself to go through with organization, having started it, and declared that if the men did not organize then,_with the help they had, it would never be done In answer to Smith's query as to what help they had, Peacock named one of the union officials, whom Smith admitted he knew personally, as a friend. Smith again urged Peacock to abandon the Union, pointing out that he was getting along in years ; advised him to go "down town," make a clean breast of the whole thing to Duvall and Potter, and they would overlook what he had clone. Peacock declined; although admitting that he fully expected to be discharged, as had Perry and Pennington. "So far as Perry and Pennington being fired," he said, "and possibly myself being fired, that's not going to stop" union organization "You could put Perry and Penning- ton and myself," he continued, "out in the woods ninety miles from town and build a wall around us,-this unionism of the employees is going on 6 Peacock testified that compjaints began to be made the latter part of February. The deportment records show that they began on March 5. As discussed more fully hereinafter, the Trial Examiner can place but little reliance upon part of these records s Peacock's testimony as to these interviews, upon which the above findings rest, was not contradicted' by Weisheit Nor did the respondents offer the deportment records of any other employee on Peacock's line to rebut his testimony that others were not reported for running ahead of time during this period _ Smith was not called as a witness b9 the respondents The findings rest upon Peacock's uncontradicted testimony. THE BALTIMORE TRANSIT COMPANY ' 195 On April 2 Peacock was again summoned by Weisheit , who had seven .or eight more briefs against the employee . Peacock declared that this persecution was working on his nerves , and that he was getting sick and tired of it. Weisheit replied "If that's the way you feel about it, why don 't you go and talk to Mr. Duvall?" Peacock asked why he should see him, since Duvall probably knew more about it than Weisheit did . The latter then instructed Peacock to be at Duvall's office the next morning 8 Weisheit was with Duvall when Peacock arrived.' Peacock told Duvall that he was doing his work as well as he could, but that he was tired of having these briefs filed against him. Duvall told him that if -he,were not violating the rules he would not be written up, accused him of having other things on his mind which he must get rid of , and warned him that unless he did so , and buckled down to his job, be would be "run away from here." Peacock told Duvall ' that he could not improve the quality of his work, and declared that the previous afternoon , after seeing Weisheit about briefs, he bad obeyed each and every rule he had ever heard of, for, the next four and half hours, but was unable to maintain schedrile, and that when he stopped work he was 21 minutes late .' ° He further told Duvall that he simply could not obey all of the rules, since being late was in itself a violation , and that lie guessed the reports would have to keep coming in Duvall bccame angry, and declared that he was not,there to argue. Peacock turned to Weisheit, and asked the superintendent if he had any complaints against his work, and Weisheit answered in the nega- tive.' Duvall reached toward his table and picked up copies of the union publi- cation, and accused Peacock of distributing " things like this." Peacock admitted having distributed the magazines . Duvall then ordered him back to work's Peacock worked the next day and the following, ' April 5. Worried and nervous with the threat of losing his job hanging over his head , with inspectors riding his trolley and fellow employees telling him they were surprised he was still working, Peacock called in sick at midnight of April 5, and did not work on April' 6 He worked April 7, called in sick late that night, and did not work thereafter On April 11 Peacock went to Dr Grenzer, " one of the company physicians, to obtain the necessary release for return to work on the following Monday In 8 Weisheit denied that he told Peacock to go to Duvall's office, but testified that Peacock requested the interview As found more fully hereinafter , the Trial Examiner cannot accept Weisheit's uncorroborated testimony. In this particular, however, the Trial Exam- iner is-persuaded, by the surrounding circumstances including Peacock's own testimony as to occuriences at Duvall's office, that while Weisheit made the decision and gave the order as to the interview , Peacock was not averse to it , and that the tiip to Duvall's office was by mutual consent. 9Peacock testified that "it seemed to" him that Smith was also present Duvall and Weisheit denied the supervisor ' s presence . Smith was present at a later interview, when Peacock was discharged. 1O Peacock declared that on this occasion he had strictly obeyed "rules that require you to start and stop easy, half speed over crossings , rules requiring you to slow around - curves, calling out all stations, all transfer points or points of interest ; all sorts of rules pertaining to the safe and careful operation of your trackless trolley " n Weisheit denied being asked this question by Peacock For reasons discussed later, the Trial Examiner places no reliance upon Weisheit's testimony, and does not credit his denial. 32 The findings as to this interview are based upon Peacock's credible testimony, the major portion of which was corroborated either by Duvall or Weisheit. Duvall denied calling Peacock's attention to the union magazines on this occasion, but admitted that he did on April 14. Since Duvall further admitted that he had many copies of this maga- zine which had come in to him beginning early in the year , it is reasonable to believe that he would have brought them to Peacock's attention at the fist interview, as found 12 Counsel for the respondents offered in evidence an affidavit from Dr Knapp, who retired on March 31 and whose place was taken by Dr Grenzer, as refutation of Peacock's testimony, as interpreted by counsel , to the effect that the employees had consulted Dr 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conformity with the existing rules that no release was to be issued for more than 24 hours ahead, the doctor, after giving him a thorough examination, declined to give him a release that day Peacock returned on Monday, received his release, and reported for work the following morning, April 14 He was promptly instructed to go to Duvall's office Duvall declared that he had warned him, that he had been running around all week long, and had been drunk it few days before. Peacock denied having been drunk, but admitting having gone into a saloon to bring out an employee who was in there Duvall then stated that he would no longer tolerate his -behaviour, told him he could not do as he was doing and work for him any longer, and discharged the employee A World War veteran and 44 years old, Peacock immediately after his discharge informed the Draft Board of his unein- ployment On May 22 lie was inducted into the U S Army. At the time of the hearing he was receiving instruction to serve as an instructor, because of his past experience, in the motor transport school b The respondents' contentions as to Peacock's discharge Duvall gave "two outstanding reasons" for the discharge of Peacock: (1) his repeated violation of instructions and defiant attitude, and (2) his not staying at home while "presumably" sick and not seeing' any doctor except to obtain his release In support of their contentions as to his deportment record, the respondents offered ledger sheets extending back to 1936. One sheet indicates that for these years lie had violations charged against him as follows 1936--------------------------------------------------------- 2 1937--------------------------------------------------------- 1 1938-------------------------------------------------------- 8 1939--------------------------------------------------------- - 16 1940-------------------------------------------------------- 1 1941--------------------------------------------------------- 4 A second sheet contains five entries front January 30 to March 1, 1942, all of which relate'to reporting late or getting off sick,-and none of which, according to Weisheit, was considered a violation except the last, concerning tardiness in reporting The same entry, however, shows that he was assigned to another run that day and,worked nearly 9 hours On the same sheet, following the march 1 entry, is a long typed memorandum which Weisheit testified was dictated to him by Smith and bearing the date of February 26 This memorandum relates mainly to a'request Peacock had made for a vacation beginning March 1 One para- graph states that on that day Smith had warned the employee about talking to passengers on several occasions On one side of the third sheet are listed, in the m,lnner of other deportment records quoted heretofore, a number of violations in 1942, summarized as follows : 3/5 Failed to call out streets 3/6 Failed to call out streets 3/6 Due at point 8: 13 AM Arrived 8' 11 AM 3/6 South-Howard & Preston St due 12: 24 Noon arri. 12 25 Noon 'Knapp between April 7 and April 13. The affidavit states that Peacock's last visit to.Dr. Knapp was on March 31 This is not inconsistent with Peacock's testimony, in which he admitted confusion as to the actual calendar date but was sure that it was on the day Dr Knapp retired THE BALTIMORE TRANSIT COMPANY 197 3/6 South -Howard & Bernard 12. 25 'noon failed to stop at intersection." 3/9 Due at point 8:13 AM Arri 8:10 AM. 3/9 , Failed to call streets. 3/12 Wrong sign on trolley 3/17 Talking to another operator 3/23 3/26 3/26 3/26 3/26 3/20 3/26 3/26 while car in mot ion Failed to call streets Failed to-stop at r r crossing. Failed to stop at r. r. crossing Failed to call Mt. Royal station Failed to call streets. Operated 30 mph Failed to stop at rapid transit crossing Failed to stop at r r. crossing. On the opposite side of the same sheet are nine entries from March 10 to March 31, inclusive, relating to his being off sick on the respective dates or missing a run, and the following entries in April : 4/ :5/42 12:00 midnight phoned would not work on 4/6/42-sick 1 day. 4/ 7/42 12 • 15 midnight phoned reported sick-was'off six days 4/ 8/42 1: 28 AM North and Linden Aves '( Mr Duvall) 4/ 8/42 1: 35 PM T. Peacock #1041 and C. Hudson #1060 came out of it cafe opposite Army ( inst. L Huster) 4/14/42 Discharged As to his not remaining at home during the week prior to his discharge, a motorman instructor reported to Duvall on April 8 that he had seen Peacock and Hudson, another employee, come out of a saloon that afternoon,' and' Peacock `appeared" to be druid: The instructor based this conclusion, he testified, upon the fact that Peacock waved his arils at hum as he went by_ Although Hudson was called nn by Duvall, he was not discharged Nor does it appear that Duvall-gave weight to this incident, several days later in the interview with Peacock, other than as proof that the employee was not at home.' It is unnecessary here to rei new, at length, the auittei of Peacock's alleged violations In the first place, the Trial Examinei can place no reliance upotr the above-quoted second and third sheets of the records Although' oitered by the respondents as records kept si milaily to others, it was disclosed upon cross examination of Weisheit that 'the third sheet was not nit original record, but it cop} allegedly made because the original had become worn and tattered from constant use Since at least one of the other sheets covers a period of more than 5 years, and shows neither Wear not soiling, it is not reasonable to believe that it sheet covering it period of it little over one month should become illegible- The Trial Examiner cannot accept, as true, 1Veisheit's testimony on this point, and has grave doubts as to the authenticity of this exhibit or that it reveals; accurately the notations on the'original As to the second sheet, above referred to, no satishictory explanation rigs given as to'why a long entry, allegedly made on February 20, should tollow one dated March 1 The entire exhibit was not offered until the hearing resumed in Baltimore, following Peacock's examination in Atlanta, Georgia Cleaily aweiror fins been made, in this entry of the one preceding It is inconceivable that Peacock could have arrived at South Howard & Preston, and at the some moment have, failed to stop at the intersection of Sonth Ilowai d and Bei nail ib In his testimony, Huster laid stiess on his statement that Peacock, on this occasion, was wearing the trousers of his uniform He thereafter admitted, howevei, that it was common to mistake the unifoim trouseis foi other khaki pants 198 DECIS;ONS OF NATIONAL LABOR RELATIONS BOARD Peacock's testimony is undisputed that briefs began to be charged against him during the latter part of February, yet the first here recorded is on March 5 Furthermore, the employee's testimony is also undisputed that inspectors and others continued to follow him after his interview with Duvall on April 3,- yet the deportment record is barren of any entry of violation after March 26.1° If the record is to be believed, then Duvall's testimony that Peacock continued to violate rules lacks essential support. If the record is not to be believed, in part, then it can be given' no more than limited weight as a whole As to Peacock's not remaining at home while out ill or seeing a doctor before obtaining his release, as found above, there is no rule that required him to do either He was not under doctor's orders, not company orders. His testimony is undisputed, and is substantiated by the records, that since 1936 he had been out for similarly short; periods Nor did the respondents adduce any evidence to rebut the employee's testimony that lie never betore had been questioned as to his whereabouts or actions while off duty. Suiely there were special circum- stances governing Duvall's sudden reversal of policy, of which the employee had not been forewarned Peacock plainly may not be held responsible for continu- ing to follow a practice which he had followed for years, and which had initially been urged upon him by Potter The Trial Examiner finds no merit in either of Duvall's contentions as to the reasons for Peacock's discharge The conclusion is inescapable that the viola- tions and the failure to stay indoors served as a pretext for, the employee's dismissal c Conclusions as to Peacock's discharge The evidence shows that Peacock did not o1bey Smith's admonition. He con- tinued active, and was known by Duvall to be distributing A F. of L. literature.' He refused to get "his mind off" union activities, as Duvall ordered. The Trial Examiner concludes and finds that Peacock, as in the case of Perry and Pennington,' was discharged because of his union activities. (12) The discharge of Charles L Mueller a Events leading up to his discharge Mueller was discharged by Duvall on April 22, 1942, having served the respond- ents continuously since November, 1923 At the time of dismissal he had been operating a trackless trolley for about 4 years, and before then had run a one- man trolley and had been a motorman Woolston was his line superintendent For a period he had been a representative under the U II A He joined the Union in January, 1942 Thereafter he quietly and under cover solicited support- for the Union among employees at the Potomac Street and Irvington car houses until soon after March' 10, when McHenry was expelled from the Independent He then "came out into the open," as he testified, and announced his Union affiliation to representative Pittenger, telling the committeeman he could report the fact so that the Independent could expel him if it wished. Alhough Mueller was not expelled by the board of representatives until their meeting of mid- April, the employee immediately began to be subjected to intensified Surveillance of inspectors; who boarded his car and found fault with things about \%hich they had not previously complained la It is significant that there appears on this exhibit no entry for April 2, the day when, according to Peacock ' s uncontradicted testimony , be was 21 minutes late , as a result of trying to observe all other rules. THE BALTIMORE TRANSIT COMPANY 199 Mueller was away from work, ill and under a company doctor's care, from March 16 to March 28, and from March 29 to April 4" On March 20 inspector Pruitt called on Mueller at his home, and on the same clay reliorted to Duvall by letter,18 part of which is as follows : * * * I stayed there a good half hour talking to him and wife I learned that Dr. Kourey has been attending hint for La Grippe. He brought me out to Harford Rd during which time he told me F. Pennington had called him this morning and told him that J. McHenry had just been fired from the Balto. Transit Co. Despite this clear and unequivocal evidence, produced by the respondents them- selves, that Mueller was out ill, from March 16 to April 4, the respondents also submitted, as evidence to support their contentions relative to Mueller's dis- charge, the employee's deportment record for 1942, which bears, among others, 19 the following notations of alleged violations: Mar. 19 Running 3 minutes ahead of time Mar. 24 Failed to call all streets. Mar 25 Failed to stop for Intersection. Mar. 25 Failed to ask passengers to move to rear of TT. On April 13, Mueller was summoned to Woolston's noffice, where the line superintendent read from 3 or 4 briefs, without revealing the identity of the individual who brought them. According to the same deportment record above- quoted there is but one entry between March 25 and April 16,-that of April 9 for failing "to call streets "20 Upon being charged with violating rules for the first time since January, 1942, Mueller raised the question, "Mr. Woolston, the pressure is not being started to be put on me, now, is it . . . because I am a member of the Amalgamatedi" Woolston told him he was not worried about that, but insisted that the railroad was going to run, no matter what kind of i union they had Then Woolston asked what the employee had against the company. Mueller denied talking about the company, but about the Independent, pointing out that the Independent officers were only seeking to better themselves Woolston declared that he did not think any other Union would be better than the Independent, which had been built up "from away back" under the United Railways. The next day Woolston wrote the following letter to Duvall: 21 17 This finding is supported by Mueller 's testimony , by his personnel record and a letter from Pruitt, noted above ie Pruitt's act was plainly one of surveillance. Although the inspector testified that be often visited the sick, lie said that he could recall no other instance of writing a letter to Duvall about such a call 19 The record shows that counsel for the respondents was aware of the inconsistency of Mueller's testimony and the deportment records, if not between the latter and the employee's personnel record 'Counsel offered no explanation but, as the following excerpt from the transcript indicates, tried to break down Mueller's testimony Q Well, now, do you remember that on March 24th you were' reprimanded for failing to announce streets? A. Well , if I was off sick from March 19th to the 241h, (as the same counsel had just told him ) how could I be reprimanded for not calling out streets if I was off sick? Q Well, if you were calling out streets you would not have been off sick, would you? A If I was off sick I couldn't call out streets when I was home. 2° It follows that Woolston must therefore halve charged him either with some of the alleged briefs dated from March 19 to March 25, which obviously could not have been committed by dueller, or with others which were not recorded The respondents offered no explanation. 21 Woolston admitted that he could not account for the coincidence that the only two men about whom lie wrote to Duvall,-Mueller and McHenry, were soon thereafter dis- charged It is of revealing significance that each of the letters informed the superintendent of transportation that the employee had joined the Union. 200 DE-CISIONS OF NATIONAL LABOR RELATIONS BOARD Wish to report that on April 13, I talked to Operator C Mueller, 2113, in service 19 years, on four briefs regarding violations He admitted that he failed to announce streets and also admitted that he had on occasions failed to stop at crossings - However, he stated that lie felt that the purpose of the briefs was due to the fact that he had joined an organization and his reason for joining it was because he wanted to be a member of some organization and we had i none here, and that the representatives of the Independent Union were,in it for themselves only. I told him that he could decide for hinselt about the Unions, but that we expected him to perform his duty in a proper manner. The next day, April 15, the board of representatives expelled Mueller from the Independent- On,the following day, according to, the respondents' records, Mueller's case was turned over to Martin Within the next 5 days, 14 briefs were charged against him as follows: April 16-1 April 17-7 - April 18-2 April 20-1 April 21-3 On April 21, when "turning in" after his run, he was sent by the dispatcher to Woolston's ofhce, shared with Martin. Both Woolston and Martin were present. Martin told Mueller, that lie had 15 briefs against him,-all for failing to stop at rapid transit or railroad crossings and at fire-engine houses. -Mueller replied. according to the employee's testimony, which the Trial Examiner credits, "I don't believe, Mr Martin, that you could get 15 briefs in one day against a iiian. 1 have been railroading now better than I ever railroaded before since I woi ked for the company All I can tell you, it is a pack of damn lies I am being persecuted because l belong to the American Federation of Labor and, trying to live an American life ' Martin declared, "I don't have to take that off of you," and Mueller replied, "Well, 1 don't have to take it off of you, I -1111 talking to you as man to ii.nn , YOU called me in here. and.I a m tell - ing you what I think " Martin ordered him to be at Dirvall's office the next morning Mueller was not shown the briefs Upon reaching his parked automobile, after, leaving Martin, Mueller found inspector Pruitt awaiting hum Pnutt demanded to know it lie had turned in a detention report, and accused Muellei of being 5 minutes late at one point that afternoon and'7 minutes at another Mueller asked, "What were you doing, following me around this afternoon, pitting the pn essure on me, the 'same as you were this morning?" Pruitt replied, "Nobody is tollowing you around," but Mueller insisted that he must have been, or lie would not have known that lie was late at two different points The employee turther declared, "I know why this is put against me, and so do you; prossure is put on me on account of the union, but this is one time you are going to get beat, whether you like it or not " Pruitt then wrote another letter to Duvall, excerpts of which follow: * * * J said to him did you make out a detention for that last trip you just made to which he very rudely said a detention report for what. I then said you were 5 nnnutes back southbound Brevard and Preston Sts and 7 minutes back at Caroline and, Orleans Sts He then blew up right and said what a shit-hear (sic) you turned out to be (meaning me) I told him 'I didn't want to hear that kind of stuff lie then replied you are my superior and I'll tell you same as I'll tell the others lie then added you were riding around THE BALTIMORE TRANSIT COMPANY 201 behind my,car this uaoining in an auto with Instructor Peregoy to which I told him he had been misinformed He said you are all it bunch of shit-heals and said all you all do is'follow and report everything anyone does that is connected with a union and let every one else get away with anything so long as they salute and say Heil to Mr Duvall and the independent union but he said it won't do any of you any good because we are going to have a real union around here he then added your kind got rid of McHenry and the rest of them fellows that have been fired but added we are still going to have an A F of L union :wound here During this course of talk I waS corrected (sic) an error in schedule with white iilk and just Iistened to him but- made no reply he then left and got in his auto #175-713 Md and drove-vest on Preston St On the morning, of April 22 'Mueller n epos ted to Duvall as instructed When Mueller came in, Duvall asked Martin to explain why the employee had been summoned Martin told him that when he had talked to Mueller about briefs the day before, the latter had cursed horn Mueller denied cursing him, and when Martin modified the accusation to "Well, you cursed," Duvall inteaaupted and declared, "Let-me tell you something. young iuan Your record around here is none too good " Mueller admitted it, and admitted having had words with Pruitt the day before Duvall then said. he had sent Martin over to straighten loon out and, instead, Mueller had jumped all over hint Thereupon Duvall discharged the employee ^ h The respondents' contention as to Mueller's discharge Counsel for the respondents contended at the hearing that Mueller was dis- charged for "violation of rules and insubordltmtion " An entry on Mueller's personnel record for April 22 reads: "Dismissed for various violations and insubordination." Duvall testified that Mueller was discharged, "Primarily for his insubordination. Mueller has a violent temper in(] that is the reason, main ,reason, main trouble I had known hint for a good many years and he has a• very violent temper " 21 Duvall testified that Martin reported to him by telephone "Mueller's actions" in his office on April 21, and that Martin wrote him a letter which was in his office at'the time of his interview ttith the employee The letter referred to by Duvall, which bears the date of April 22, reads its follows : Yesterday afrernoon at 4. 315 I' M T had Operator C Mueller, Badge 2113, in the office at Potomac St to talk to lmnn about a number of violations I told him about a number of briefs I had against him for various viola- tions such as not stopping at Enging Houses, failing to pull to the curb, running ahead of time, and not stopping at Rapid Transit Stops, etc 22 Except as it corroborates Mueller's testnuony that an aigument aiose, as previously found, the Trial Examiner places no reliance upon this letter Mueller's testimony is,un- contradicted that he had never before been reprimanded for faihme to turn in a detention report , ' - 23The findings as to this interview are based upon Mueller's credible testimony Duvall's version, which the Trial Examiner can place little reliance upon, is summarized elsewhere above 24 Although Duvall' did not state that lie discharged Mueller because of his deportment record , be testified that before the employee 's dismissal he had these records before him, and in oflermg them, together with similar aecoids of other employees discharged by Duvall, counsel too tic,, iespondents stated " when this gentleman (Mr Duvall) acted upon tie discharge of these Wien he had before him" these records Counsel also stated, "If the information contained theisin was at that time faulty, then he had no right to discharge them 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said, What in the hell is this, the Purge' I asked him what he meant by Purge, and he said, you know; you God damned people have been after me and you know it. I told him that no one was after him,-we were only trying to get him to do his work in the proper manner. He then started to-curse everybody working for'the company, and said what we were doing was "Un-American." I told him that I would not handle his case and instructed him to be in your office this morning at 10. 00 A M. After leaving Potomac Street he went to Preston and Caroline Sts. and met Inspector H. Pruitt, and cursed him, -Mr. Woolston and myself. Mr. Woolston was in the office while I was talking to him. Duvall further testified that he read this letter to Mueller as well as the above-quoted letter from Pruitt As to the Martin letter, he testified that Mueller "admitted that lie cursed in Martin's office, and that the letter was true, except that he did not curse Martin, lie cursed at him, as he put it. -Had not cursed him, cussed at him, he admitted that he had been cursing in the office * * *" As to the Pruitt letter, "lie denied that but admitted that he had had words with Pruitt or argued with Pruitt on the street, but he denied using some filthy language that was in Pruitt's letter." z5 Duvall then stated that he discharged Mueller "primarily for his insubordination " Mueller was not questioned as to whether or not Duvall read these letters to him, but he testified that he was in Duvall's-office only about a minute and a half, which would not have provided time for such reading. The Trial Examiner can place no reliance upon Duvall's uncorroborated testimony. On two major points Duvall's testimony is contradicted by Martin and Woolston. Duvall testified that he instructed Martin to write the above letter, while Martin flatly denied that Duvall asked him to write it. As to Duvall's testimony that Mueller had a "very violent temper," Woolston testified "as a rule, he is a very pleasant fellow," and that he had never seen him display temper except in Martin's office. Woolston, as -Mueller's immediate superior, saw the employee frequently, while Duvall did not. In any event, whether Duvall rend the letters to Mueller or not, Mueller denied cursing Martin and, as Duvall admitted, denied using the language attributed to him by Pruitt. Duvall further admitted that he did not interview Pruitt on the matter. The Trial Examiner, having observed Mueller on the witness stand for parts of two days without sleep in-the interim," believes the employee's denials. Mueller was unshaken by gruelling cross examination, and his testimony was straightforward and coherent, in marked contrast to that of Duvall and Woolston The -latter testified, with reference to the interview in Martin's office : 'And, the exact words.1 can't give, but then there was some more swearing; something everybody around here, every God damn soul around here, some- thing, about that purge, or something between this purge, something about that purge-there wasn't a lot said. Just like a flash, it was all over." From the incoherence of Woolston's testimony comes the single nugget of truth, Mueller resented the "purge." . It appears to the Examiner that Mueller's i esentnient was a natural and normal reaction of an employee, well aware of his rights as guaranteed by law, who had seen his fellow employees Perry, Pennington. Peacock, McHenry, Strupp and Flaherty similarly treated, and who now found himself the mark of Duvall's admitted hostility toward the Union. His expressed belief that the briefs Martin u Mueller also denied at the hearing, cursing' Pruitt or "giving him a tongue lashing," as counsel for the respondents expressed his question 16 At the time of hearing, Mueller was a'police officer for the Maryland Drydock Company. THE BALTIMORE TRANSIT COMPANY 203 confronted him with were "lies" was not without the foundation of probable truth, since it has been established that those previously filed against him in March were clearly false. However his resentment may have been expressed , it was plainly precipitated b^ the respondents,- and the responsibility is that of the respondents alone. The Trial Examiner finds no merit in the respondents' contention, therefore, that Mueller , was discharged because of insubordination Nor can the Trial Examiner find merit in the contention that he was discharged because of his deportment record As in other cases , the respondents offered no credible proof that any of the violations actually occurred . At least four of them are proved by other records of the respondents to be false , and grave doubt thus attaches to the accuracy of the entire record. c. Conclusions as to his discharge. The real reason for Mueller's discharge was plainly the employee's continued Union activities, and the Trial Examiner so finds. (13) Conclusions, in summary, as to the discharges. The Trial Examiner concludes and finds that the respondents, by discharging the following employees, on the dates set opposite their names, have discriminated in regard to their hire and tenure of employment,' thereby discouraging member- ship in the Teamsters and in the Union, and interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act : , George May--------------------------------------------- September 25„ 1941 George Silberzahn--------------------------------------- October 14, 1941 Arthur W. Rawlings------------------------------------- November 6, 1941 Clayton Perry------------------------------------------- March 6;,1942 Frank Pennington---___ _________________________ March 7, 1942 Carroll Lee Strupp------------- ------------------------- March 19, 1942 Joseph M. 17laherty --------------------------------------- Do. John W.McHenry ------------------------- '---------------- March 20, 1942 Theodore J. Peacock------------------------------------- April 14, 1942 Charles L. Mueller---------------------------- - ---------- April 22, 1942 IV THE EFFECT OF_ THE UNFAIR LABOR PP.ACTICFSS UPON COMMERCE l The activity of the respondents , set forth in Section III above , occurring in connection with the operation of the respondents described 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 ob- structing commerce and free flow of commerce. V THE REMEDY Having found that the respondents have engaged in certain unfair labor prac- tices the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action, designed to effectuate the policies of the Act. It has been found that the respondents have dominated and interfered with the formation and administration of the Independent and its predecessors, the U. R. A. and the B T. E. A. and have contributed financial and other support thereto. It has been found that the Independent representatives have been, and are being, utilized by the respondents-as media for the obtaining of information 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respecting employees' Union activities, and as disseminating agents for their own anti-umnin hostility Thus, in this great public transportation system upon which depend many thousands of workers engaged in war production designed to pre- vent the enslavement of our nation, there functions a compact group, under the guidance, support and protection of the respondents' highest officials, engaged in depriving their fellow-employees of their freedom to organize and thereby de- feating the democratic principles of the Act The effect and consequences of the respondents' domination of, interference with. :and support of the Independent and its predecessor uiganizations; as well as the continued recognition of the Independent as the bargaining representative of their employees, constitute a continuing obstacle to the free exercise by their employees of the rights guaran- teed in the Act Because of the respondents' illegal conduct with regard to it, the Independent is incapable of serving, the respondents' employees as a genuine collective bargaining agency Accordingly, the Trial Examiner will recommend that the respondents disestablish and withdraw all recognition from the Inde- pendent as the representative of any of its employees for the purposes of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment It has also been found that the agreements entered into between the respondents and the Independent have been a means whereby the respondents have,utdized an employer-dmninatecl labor organization to frustrate self-organization and defeat genuine collective bargaining by their employees Under these enrcuni- stances any conhnnation, renewal, or modification of the current agreement would perpetuate the conditions which have deprived employees of the rights guaranteed to there by the Act and would render ineffectual other portions of these remedial recommendations It will therefore be recommended that the respondents cease giving effect to any agreement between it,and the Independent, or to any modification or extension thereof Nothing'in these'reconirnendations should be taken, however, to require the respondents to vary those wage, hour and other substantive features of its relations with the employees theniselves, if any, which the respondents established in performance of the agreement as extended, renewed, modified, supplemented, or superseded 28 The Trial Examiner is also of the opinion that, under the circumstances of this case, the respondents should, as a means of restoring the status quo and remedy- ing the unfair labor practices found, reimburse each employee for the amount of fees and clues which the respondents checked off his wages and,paid over to the Independent since June 2, 1942,''° less any amount already returned to hun by the Independent It will be so recommended - It has also been found that the respondents dnscrinninated as to the ]tire and tenure of employment of George May, George Silberzahn and Arthur W Rawlings because they assisted the Union ; and that the respondents dnscrimmated as to the hire and tenure of employment of Clayton G Perrv. Frank 1'@nnington, Carroll Lee Strupp, Joseph i1I Flaherty, John McHenry, Theodore J Peacock and Charles M. Mueller , because of their membership in and activity on behalf of the Union. In order to effectuate the purposes and policies of the Act, it will be recommended that the respondents offer George May. George Silherzahn, Arthur W Rawlings, - 21 See N L B' B v Newport News Shtpburldoiq and Drydock Company, 308 U S 241; N. L R B v The Fall Corporation, 308 U S 453;'N L R B v Pennsylvania greyhound Lanes, 303 U S 261 21 See National Licorice Co v 1V atsonal Labor Relations Board, 309 U S 350 aff'g as mod 104 F (2d) 655 (C C A. 2), enf'g as mod 7 N L R B 537; National Labor Relations Board v J Greenebauna Tanning Co ,110 F (2d) 984 (C C A 7)'Pnt'g as-mod 11 N. L R B 300, cert. den 311 U S 662. 29 This is the date upon which the complaint was issued I THE BALTIMORE TRANSIT COMPANY 205 Clayton G. Perry, Frank Pennington, Carroll Lee Strupp, Joseph M' Flaherty, John McHenry, and Charles M. Mueller immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges It will also be recommended that the respondents make each of the aforementioned employees whole for any loss of pay lie his suffered by reason of the respondents' discrimination, by payment to him of a sum of money equal to the amount lie normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings30 during that period As to Theodore J Peacock, it will be recommended that the respondents, upon application by Peacock, within forty (40) days after his discharge from the armed forces of the United States, offer him re- instatement to his former of a substantially equivalent position, without preju- dice to his seniority or other rights and privileges It will further lie reconr- mended that the respondents make Peacock whole for any loss of earnings lie may have suffered by reason of the respondents' discrimination against him, by pay- ment to him of a sum of money equal to the amount lie would normally have earned as wages during the periods (1) between the date of,his discharge by the respondent, and the (late of his induction, and (2) between a date five (5) days after Peacock's timely application for reinstatement, and the date of offer of reinstatement by the respondents, less his net earnings" during those periods. Upon the basis of the foregoing findings of fact and upon the entire record ink the case, the undersigned makes the following. CONCLUSIONS OF LAW 1 Amalgamated Association of Street. Electric' ltailw<iv and 'Motor Coach Employees of America, Division 1300, affiliated with the A. F of L, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. affiliated with the A. F. of L ,; and The Independent Union of the Transit Employees of Baltimore City are, and the Baltimore Transit Employees' Association and The United Railways Employees' Association of Baltimore were labor organizations,, within the meaning of Section 2 (5) of the Act 2 B' dominating and interfering with the formation and administration of the independent, Union of the Transit Employees of Baltimore City, the United Railways Employees' Association of Baltimore and,The Baltimore Transit Em- ployees' Association, and by contributing support to them, the respondents have engaged in unfair labor practices, within the meaning of Section S (2) of the Act i 3 By discriminating in regard to the hire and tenure of employment of Georg May, George Silberzalm and Arthur W. Rawlings ; thereby discouraging member- Ship in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,, affiliated with the A F of L ; and by disciiniinating in regard to the hire an(T tenure of employment of Clayton G Perry, Frank, Pennington, Carroll Lee Strupp, Joseph Al Flaherty, John McHenry, Theodore J Peacock, an(] Charles L. Mueller; thereby discouraging membership in Amalgamated As- sociation of Street, Electric Railway and Motor Coach Employees'of Americo, 10 By "net earnings' is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining woik and working elsewhere than for the iespondents, which would not have been incurred but for his unlawful dis- ch•irge and the consequent necessity of his seeking employment elsewhere See Matter off Crossett Lumber Coinpanij and United Brotheihood of Carpenters and Joiners of America,. Lumbers Workers Union, Local 2590, 8 N L R. B 440 Monies ieceiied foi work performed upon federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v N L R B , 311 iJ S 7. , See footnote 127 supra 206 DECISIONS OF NATIONAL LABOR RDLAT'IONS BOARD Division 1300, affiliated with the A. F. of L., the respondents have engaged in. and are engaging in unfair-labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the Trial 'Examiner recommends that the respondents, The Baltimore Transit Company and The Baltimore Coach Company, Baltimore, Maryland, and their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1300, affiliated with the A F. of L., International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers, affiliated with the A. F. of L, or any other labor organiza- tion of their employees, by discharging or refusing to reinstate 'any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (b) Dominating or interfering with the administration of The Independent Union of the Transit Employees of Baltimore City by whatever name it may be known or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to the Inde- pendent Union .of the Transit Employees of Baltimore City or to any other labor organization of their employees ; (c) Giving effect to the working-conditions agreement dated January 18, 1942, between the respondents and The Independent Union of the Transit Employees of Baltimore City, or any extension, renewal, or modification thereof, or any other contract or agreement between the respondents and the said labor organization which may now be in force ; (d) Recognizing The Independent Union of the Transit Employees of Baltimore City as the representative of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rate of pay, hours of employment, or any other conditions of employment ; (e) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of,the right to self-, organization,. to form, join, or` assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bar- gaining and other mutual aid, or protection, as guaranteed in Section 7 of the Act. 2. Take the following afuimative action which the Trial Examiner finds will effectuate the policies of the Act (a) Withdraw all recognition from and completely disestablish The Independ- ent Union of the Transit Employees of Baltimore City by whatever name it may be known and the United Railways Employees' Association of Baltimore and the Baltimore Transit Employees' Association in the event that either of the two last-mentioned organizations shall at any time hereafter function as, the repre- sentative of any of their employees for the purpose of dealing with the respond- THE BALTIMORE TRANSIT COMPANY 207 ents concerning grievances, labor disputes, rates of pay, wages, hours of employ- ment, or other conditions of employment. (b) Reimburse all their, employees whose fees and: dues in the Independent were checked off for the amounts thus deducted from their wages since September 29, 1937; (c) Offer to George May, George Silberzahn, Arthur W. Rawlings, Clayton G. Perry, Frank Pennington, Carroll Lee Strupp, Joseph M Flaherty, John McHenry and Charles L. Mueller immediate, and full reinstatement to their former or equivalent position, without prejudice of their seniority and other rights and privileges; and notify Theodore J. Peacock by registered mail, that upon his discharge from the U: S. Army he will be reinstated to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (d) Make whole George May, George Silberzahn, Arthur W. Rawlings, Clay- ton G. Perry, Frank Pennington, Carroll Lee Strupp, Joseph M. Flaherty, John McHenry, and Charles L. Mueller for any loss of earnings they may have suffered by reason of the respondents' discrimination against them by payment to each of a sum of money equal to that which he would normally have earned as wages from the date of the respondents' discrimination against him to the date of such offer of reinstatement, less- his net earnings 32 during said period; (e) Upon application by Theodore J. Peacock within forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (f) Make whole Theodore J. Peacock for any, loss of earnings suffered by reason of the respondents' discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages' during the periods (1) between the date of his discharge by the respondents and the date of his induction, and (2) between a date five (5) days after Peacock's timely' application for reinstatement and the (late of the offer of reinstatement by the respondents, less his net earnings 34 during those-periods. (g) Immediately 'post notices to its employees in conspicuous places through- out their system in Baltimore, Maryland, and maintain such notices for a period of at least sixty (60) days from the date of posting, stating (1) that the respondents will not engage in the conduct from which it is recommended that they cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of these Recommendations : (2) that they will take the affirmative action set forth in paragraphs 2 (a), (b)', (c), (d), (e), and (f) of these Recommendations; and (3) that their employees are free to become or remain members of Amalgamated Association of Street, Electric Railway and Motor. Coach Employees of America, Division 1300, affiliated with the A. F. of L. and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the A F. of L, and that they will not discriminate against any employee because of membership in or activity on behalf of said labor organizations; (h) Notify the Regional Director for the Fifth Region, (Baltimore, Mary- land) in writing within twenty; (20) days from the date of the receipt of this Intermediate Report what steps the respondents have taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report the respondents notify said Regional Director in writing that they have complied with the foregoing recommendations, the S2 See Footnote 127 supra. 33 As provided in paragraph 2 (e) of these recommendations. 14 See Footnote 127 supra. 208 DECISIONS OF NATIONAL LABOR RM ATIONS, BOARD National Relations Board issue an order requiring-the respondents to take the action atoresaid As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 2-as amended, any party may within thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shorehain Building, Washington, D C, an original and four copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof., As further provided in said Section,33, should any party desire permission to argue orally before the Board, request 'therefor must be made in writing to the Board within twenty (20), days from the date of the order transferring the case to the Board C W WHITTEMORE, 't'rial Edwin ones. Dated September 23, 1942.