The Louisville Railway Co.

In the Matter of TILE LOUISVILLE RAILWAY COMPANY and THE AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES of AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR In the Matter of THE LOUISVILLE RAILWAY COMPANY and ORGANIZING COMMITTEE OF THE LOUISVILLE RAILWAY COMPANY OF THE TRANS- PORT WORKERS OF AMERICA (CIO) Cases Nos. 9 C-.20701 and 9 C-2114, respectively.Decided July 19, 19.46 Messrs. Louis S. Penfield and Herbert J. Nester, for the Board. Messrs. Ogden, Galphin, Tarrant, and Street, by Messrs. John E. Tarrant and Samuel M. Rosenstein , both of Louisville , Ky., for the respondent. Messrs . Ziniving and Rabe , by Mr. Hans J. Lehman, of Chicago, Ill., for the Amalgamated. Messrs. Herbert H. Monsky and Walter Case, both of Louisville, Ky., and Mr. Frank Donner , of Washington, D. C., for the Transport Workers. Messrs. Morris and Garlove , by Messrs, Charles W. Morris and Janes 7'. Noon, both of Louisville, Ky., for the Independent. Miss Kate Wallach, of counsel to the Board. DECISION AND ORDER On December 6, 1945, Trial Examiner W. P. Webb issued his In- termediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and the Independent filed exceptions to the Intermediate Report and sup- porting briefs. Counsel for the Transport Workers filed exceptions and a supporting brief to that part of the Intermediate Report deal- ing with the reimbursement of check-off dues for the Independent. On May 2,1946, the Board heard oral argument at Washington, D. C., upon request of the respondent and the Independent? The respond- ent, the Independent, the Transport Workers, and the AFL were These two cases were consolidated by order of the Board, dated July 31, 1945. = Although Chairman Herzog was not present at the oral argument, he has read an official transcript of said argument. 69 N. L. R. B., No. 85. 691 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by their respective counsel and participated in the argument. During the course of the oral argument counsel for the Independent and the respondent produced certain documents in connection with an election among the respondent's employees held on April 2, 1946, under the supervision of the Commissioner of Industrial Relations of the Commonwealth of Kentucky, and a temporary contract entered into thereafter between the respondent and the labor organization which was the winner of that election. The respondent and the Independent moved orally that the Board reopen the record for the purpose of receiving this additional evidence. The motion on which consideration was reserved is hereby denied. The evidence sought to be thus adduced pertains to events which occurred after the hearing herein and is immaterial to the issues in this case. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions of the parties, the contentions advanced at the oral argument before the Board and in the briefs submitted by the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and modi- fications noted hereinafter.3 -3 In the section of the Intermediate Report entitled "The business of the respondent," the Trial Examiner inadvertently referred to contractual relations involving a lease of its facilities as being between the respondent and the Bridge Transit Company instead of between the respondent and the New Albany and Louisville Electric Railroad Corporation. We make the correction and also find that this lease was to terminate in December 1945 because of contemplated changes from electric railway operation to motor busses. In the same section of the Intermediate Report, the Trial Examiner refers to a stipula- tion that in 1945 the respondent "expects to add" a substantial amount of new equipment to its system. We note and find from the testimony that as of the time of the hearing the respondent had already entered into contracts with local representatives for the pur- chase of about $2,000,000 worth of new equipment from manufacturers outside of the Commonwealth of Kentucky. The Trial Examiner also found that on April 16, 1940, at a time when the Transport workers was engaged in an organizational drive among the respondent 's employees, the respondent through . a. Citizens' Committee sponsored an election on its premises to deter- mine whether the employees desired to be represented by the Independent or the Transport workers ; that neither the employees nor the Transport workers was given advance in- formation of the election although the Independent had advance knowledge ; and that by such company-sponsored election the respondent violated Section 8 ( 1) of the Act. The respondent argued in its brief before the Board that the election was fair and that at the time it was held the Board had taken the position that the respondent and other city transit operators, not employed in interstate commerce were not subject to the Act. Apart from any other considerations, it is plain that an election in which there is only a choice between two labor organizations with no opportunity to vote for neither, the hold- ing of which was a secret kept from the voters and one of the parties on the ballot until the day of the election , thus rendering impossible the normal pre-election campaigning, cannot be deemed a fair election. Under all the circumstances, we prefer to treat this election as additional support to the Independent rather than an independent violation of Section 8 (1) of the Act as the Trial Examiner did. Accordingly, we find that by its activity in connection with the election of April 16, 1940, the respondent gave additional support to the Independent. THE LOUISVILLE RAILWAY COMPANY 693 1. In their briefs before the Board, the respondent and the Inde- pendent claim that the refusal of the Trial Examiner- to receive the testimony of more than 9 members of the Independent on the question of their observation or lack of observation of interference or influence by the respondent in respect to the employees' free choice of a bar- gaining agent, without requiring the Board's attorney to stipulate that the remainder of some 800 employees would have testified similarly as to the absence of such acts, was a denial of due process of law. Counsel for the Independent stated at the hearing that he proposed to prove by each of the 800 employees, that "he has not observed a single instance wherein any official or supervisory employee of the respondent has interfered with or influenced or in any way obstructed the men in their free choice of a bargaining agent." Counsel for the Board presumably had no knowledge as to what all 800 employees might testify on this question and stated his refusal to stipulate both on the ground of his lack of such knowledge as well as the immateriality of such testimony. It does not appear how this refusal of Board counsel to stipulate or the failure to receive the testimony of all 800 witnesses prejudiced the respondent or the Independent. For the purpose of considering the Independent's offer of proof, we shall assume that the 800 witnesses, if called, would each have testified that "he has not observed a single instance wherein any official or supervisory employee of the respondent has interefered with or influenced or in any way obstructed the men in their free choice of bargaining agent." Nega- tive evidence of this character, however, is of very slight probative value in connection with the issues of the case; whether the respond- ent initiated, formed, and sponsored the Independent as a successor to predecessor company-dominated labor organizations, and domi- nated and interfered with its administration and contributed financial and other support thereto, and otherwise violated Sections 8 (1), (2), and (3) of the Act. Whether the respondent "interfered with or influenced or in any way obstructed" the employees in their free choice of a bargaining agent obviously calls for conclusions of law which ordinary employees may be unable to draw. Moreover, the negative testimony of 1, 9, or all 800 employees, that each "has not observed a single instance" of interference, influence, or obstruction in respect to the free choice of a bargaining agent, cannot overcome affirmative evidence that the respondent did do certain acts which this Board and the courts recognize as an interference with the self-organ- ization rights of employees.4 Significantly, 2 former employees, i lVestern Cartridge Co. v. N. L. R. B., 134 F. (2dl 240 (C. C. A. 7) ; United States v. General Motors Corp., 121 F. (2d) 376, 405 ; N. L. R. B. v. Southern Bell Telephone & Telegraph Co., 319 U. S. 50; Western Electric Co. v. N. L. R. B., 147 F. ( 2d) 519, enf'g 57 N. L. R. B. 1177, cert . den. 65 S . Ct. 1014; Matter of Tappan Stove Company, 66 N. L. R. B. 759. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claywell and Hill, did testify that Superintendent Powell and Fore- man Bryant made statements to them which are found to be acts of interference constituting independent violations of Section 8 (1) of the Act. Negative testimony of the character envisaged by the Inde- pendent's offer of proof plainly does not disprove that these acts of interference occurred. Similarly, with respect to the violation of Section 8 (2), such negative testimony would not disprove the affirma- tive evidence in the record, detailed in the Intermediate Report, which establishes, as found by the Trial Examiner, that the Independent was a successor to L. R. C. A. and C. W. A., and that the respondent has dominated and interfered with the formation and administration of C. W. A., L. R. C. A., and the Independent, and has contributed financial and other support thereto, and that by such domination, interference, and support, the respondent interfered with,* restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The Trial Examiner found that James R. Gowen was discharged by the respondent because of his membership in and activities on be- half of the Amalgamated. We agree but base our conclusion inde- pendently on the following findings of fact : Gowen was first employed by the respondent in 1926 as a street car operator. He resigned in 1929 and was reemployed by the respondent in 1937, from which time his employment was continuous until his discharge on August 14, 1944. Gowen was a member of the Inde- pendent. In the late spring or early summer of 1944, there was dis- cussion among the respondent's employees concerning representation by outside unions, but the record does not reveal any active moves until August 8, 1944, when Gowen got in touch with the local office of the Kentucky Federation of Labor, after being requested by some of the employees to find out about getting outside representation. He returned there the next day, August 9, and joined the Amalgamated. He then received a supply of application cards for membership which he immediately began to distribute among the employees at the re- spondent's various car barns. At that time, Gowen was working out of the Fourth and Avery Streets car barn, under Foreman Joe Newton and Assistant Foreman Leo Gray. On August 9, Gowen arrived at his station about 20 minutes before his run and spent the spare time in soliciting membership in the Amalgamated among the off-duty operators in the recreation room,' which is adjacent to the foreman's office. With Foreman Newton's permission Gowen took the following day off and used the time for extensive solicitation. On the morning of August 10, Gowen visited the Broadway car barn and solicited several operators. According to Gowen's uncon- a The respondent maintained recreation rooms at its various car barns for use of operators. THE LOUISVILLE RAILWAY COMPANY 695 tradicted and credible testimony, he asked either Foreman Bryant or Assistant Foreman John J. Carter to let Superintendent Powell know that they were going to organize the Amalgamated in the system. While at the Broadway barn Bryant or Carter said to Gowen, "Mr. Powell [respondent's superintendent] just called me and said if you had any bills to put on the bulletin board to see the Company before you put them on there." Gowen then went to the Fourth Street car barn where he continued his solicitation for the Amalgamated. From there he went to the Market Street and Walnut Street barns, signing up employees either before they went on their runs or when they were off duty. On August 11, Gowen reported for work about 4: 15 a. in. Assistant Foreman Leo Gray refused to allow him to take his scheduled run; instead lie was told to report at the main office at 9: 00 a. in. Gowen then left the car barn and went out to the Wallace Bus Loop, a ter- minal for several of the respondent's bus routes. Gowen solicited some operators there who were waiting for their return runs and thereafter reported to the main office a few minutes before 9: 00 a. m. There, Gowen first saw Albert R. Nelson, assistant superintendent of trans- portation. Nelson said to him, "Gowen, I understand that you have been riding the front end of the cars talking to operators." Gowen replied, "I ride a little out there once in a while, just like all the other men do." Nelson said, "Well, you know it's against the rules?" Gowen replied in the affirmative, and asked Nelson to tell him what he was talking to the operators about. Nelson declined to answer and went out and returned with Superintendent Powell. Powell reiter- ated what Nelson had said. Gowen then asked Powell to whom he was supposed to have talked and what lie was supposed to have said. Powell refused to tell him .15 Powell thereupon suspended Gowen for 3 days, beginning at once, and ordered Gowen to report back to him on August 14. During the period of his suspension Gowen continued to visit the respondent's car barns and sign up the operators. He rode on the re- spondent's street cars and busses. When Gowen reported back to the main office for duty at 9: 00 a. in. on August 14, Assistant Superin- tendent Nelson said to him, "We understand, Gowen, you are still riding in the front of these cars and talking to these operators." Gowen replied, "No sir, I haven't since you had me down here the 11th." Nelson answered, "Well, we understand you are." Nelson then called in Superintendent Powell who repeated what Nelson had said. Gowen again denied the charge and requested to be told to whom he was supposed to have talked and what he was supposed to Nelson and Gowen so testified. Powell testified that he did not recall whether Gowen asked who reported him. We credit Gowen's testimony as corroborated by Nelson. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have said to the operators. Powell refused to acquaint Gowen with the facts upon which the accusation was based. According to Gowen's undenied testimony, which we credit as did the Trial Examiner, Powell asked Gowen, "you have got a barber shop, haven't you?" Gowen re- plied in the affirmative. Powell then said, "If you had some one working for you that was doing something that hurt your business, you would get rid of him, wouldn't you?" Superintendent Powell then discharged Gowen. Gowen was paid up to and including August 9, 1944. Superintendent Powell testified that Gowen was discharged on August 14 for the sole reason that he rode on the front platform after he had been suspended August 11 for a violation of this same rule. The. respondent has issued several rules with respect to talking by operators which are available to them in printed form. These rules provide that "motormen, while operating cars, are permitted only to answer questions of superior officers and to give proper in- structions to students. All other conversation is forbidden." Rule 13 prohibits operators from engaging in unnecessary conversations with passengers or employees. Signs are posted in cars and busses to the effect that passengers are requested not to talk to the operator while the car is in motion. On July 10, 1944, the respondent issued an- other rule applying primarily to operators and conductors off duty, forbidding them to ride on the front platform.-- While the prior safety rules with respect to talking applied primarily to the operator in charge and to the public, the new rule was addressed primarily to the off-duty operator. Preventing the latter from riding on front plat- forms obviously would reduce the opportunities for operators to talk. Thus while the July 10 rule was new, its underlying principle, designed to prevent talking by operators, was not. It would be expected that whatever practice the respondent followed with respect to violations of its prior no-talking rules by operators would similarly obtain as to the new rule. This was true in the case of violators who preceded Gowen. Despite the rules, the record shows, and we find, that talking between operators of cars and off-duty operators who were passengers, was a frequent occurrence; that supervisors were inclined to overlook en- tirely conversations involving brief passing of the time of day; that in the case of more extended conversations, supervisors generally first informally warned the violator; and only where repeated violations occurred did the supervisor customarily make a formal report of the violation to the office. The record further shows that the number of such reports actually filed by supervisors was small in proportion to 4 Contrary to the Trial Examiner, we do not find that the posting of the latter rule was precipitated by Gowen's union activities inasmuch as his activities did not begin until a month later. THE LOUISVILLE RAILWAY COMPANY 697 the common practice of talking. The reports were in the form of pencil memoranda made by the supervisor and turned into the office. Superintendent Powell testified that a supervisor might make a num- ber of such reports, but they were destroyed in a day or two without even being entered on the operator's personnel record, unless the re- port stated that the man had been formally "cautioned" and informed by the supervisor that the violation would be entered on his record. In such case a "caution" would be shown on the personnel record. Suspensions for rule violations and discharges were also entered on the record. Superintendent Powell further testified that others be- sides Gowen had violated the rule after the posting of the July 10 notice; that some of the violators were warned by supervisors, while others were "called to the office and talked to about it." He could not recall that any of these violators were suspended. Although Powell claimed that in each year there had been suspensions and discharges for violation of talking rules prior to Gowen's case, he was unable to name a single case where this had occurred. Assistant Superintendent Nelson testified that he did not know of a single such case, as did other employees. Superintendent Powell testified that when he suspended Gowen on August 11 he had reports from Inspectors Warren and Woe-ter and from a fellow operator named Stiff, that Gowen had violated the July 10 rule. It is evident that the Warren and Woerter reports could not have precipitated the suspension on August 11, because their reports were stale by August It. Inspector Woerter only testi- fied to observing one violation by Gowen prior to the August 11 suspension, a violation which he placed a month or two earlier. He testified that he sent in a report to the office on this, although ordinar- ily he did not do so the first time. Inspector Warren similarily testi- fied to observing only one violation by Gowen, which he placed at 10 days or 2 weeks prior to the suspension. It is noteworthy that neither of these reports was entered as a "caution" on Gowen's personnel rec- ord, nor did any other "caution" for violating the talking rules appear on his record. The violation reported by Operator Stiff on August 10 obviously precipitated Gowen's suspension on August 11. However, the record reveils that the report of this violation was not handled in the usual routine manner; the extraordinary manner in which it was handled is only consistent with the conclusion that the respondent was then seeking something to "pin on" Gowen to stop his organizing for the Amalgamated begun on August S. Operator Stiff testified that Gowen boarded his car about 6: 15 or 6: 30 p. in. and solicited him for the Amalgamated, and that he reported Gowen to Foreman Newton on completion of his run between 7: 00 and 8:00 p. in., informing, Newton that Gowen was soliciting 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him for the Amalgamated. Newton did not testify. Superintendent Powell testified that he leaves his office between 5: 00 and 6: 00 p. in. Foreman Newton obviously could not have reported Gowen before 7: 00 or 8: 00 p. m., which was after Superintendent Powell had gone home. Yet Gowen's suspension was decided upon before he arrived for his run at 4: 15 a. m. the next morning, August. 11; as previously noted he was not permitted to take his car out on reporting for work at that time, but was told to report to the office at 9: 00 a. in. Superin- tendent Powell's testimony was somewhat vague and uncertain on the question of when and how he received the report of the Stiff incident. He admitted that "it might have been phoned to me at home." In response to the question "When was this decision made to suspend him [Gowen] ?", Powell answered, "The car house fore- man was told the evening before to send him in next morning when he reported." The record thus discloses, and we find, that a report of the Stiff incident which was not received by Foreman Newton until 7: 00 or 8: 00 p. m. on August 10, was telephoned to Superintendent Powell at his home during the evening; and that Powell then made the decision to suspend Gowen and arranged to have Gowen directed to come to the office when he reported for work at 4: 15 a. in. the next mornings In view of the fact that reports of violations of the talking rules were usually pencil memoranda received and processed daily at the office, and were not even deemed serious enough to be entered on the record unless the report showed that the violator had been in- formed by the supervisor after repeated violations that a caution would be entered on his record, there must have been some unusual reason for the extraordinary procedure in the Gowen case of the Superintendent being notified of and acting on such a minor matter at his home during the evening hours. The fact that Gowen had not even had a "caution" entered on his record for such a violation, the fact that the only penalties Superintendent Powell could recall being visited on other violators of the new rule between its posting on July 10 and Gowen's case, were warnings by supervisors, or being "called to the office and talked to about it," and the fact that the respondent was unable to show a specific case of suspension for such a violation at any time prior to Gowen's, also shows that there was some unusual reason for the more severe penalty of suspension visited on Gowen on August 11. The fact that Gowen's violation of the rule involved solicitation for an outside labor organization competing with the Independent, a fact admittedly known by. Superintendent Powell when lie made the suspension, furnishes the only reasonable explana- , In its brief filed with the Board (p. 51), the respondent asserts that the Stiff incident occurred about 10 days or 2 weeks before Gowen's suspension. There is no evidence to support such a claim. THE LOUISVILLE RAILWAY COMPANY 699 tion for the extraordinary procedures followed and the extraordinary penalty imposed in Gowen's case. We find from the entire record that Gowen's solicitation for the Amalgamated became known to the re- spondent either on August 9 or 10; that the respondent immediately geared its machinery to catch Gowen in a violation of its rules in the course of the solicitation, and to discipline him so as to thwart organi- zation of its employees; that the Stiff incident reported during the evening of August 10th was accordingly immediately communicated to Superintendent Powell at his home by telephone, and that Super- intendent Powell then decided to suspend Gowen, being motivated by a desire to discourage Gowen's activity on behalf of the Amalgamated. By suspending Gowen on August 11, the respondent discriminated in regard to his hire and tenure of employment because he joined and assisted the Amalgamated, thereby discouraging membership in the Amalgamated, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The issue remains whether Gowen's discharge on August 14 was also discriminatory. As noted above, the pattern of events at the time of Gowen's dis- charge in Superintendent Powell's office on August 14 was substan- tially the same as on the occasion of his suspension on August 11, except that on the 14th Gowen denied having violated the rules since his suspension. Following the accusation of violations and Gowen's request to be informed as to whom he was accused of talking and what he had said, Powell again refused to give Gowen any information as to the basis of the charge of rule violation made against him. At the hearing herein, however, Powell testified that when he discharged Gowen on August 14, he had reports from Inspector Woerter and Inspector Smith that Gowen was continuing to violate the rule after his suspension by riding on the front platforms with Operators Burres and Amos. Amos was called as a witness by the respondent, and testified that Gowen rode on his car and solicited him for the Amalgamated on one occasion, but he could not remember whether this occurred before or after Gowen's suspension. Amos further testified that the day after the incident he was questioned by Inspector Smith who asked him if Gowen had ridden Amos' car the day before, "whether he stood up or sat down," etc. Amos then told Smith that Gowen had ridden his car and that they had talked about the Amalga- mated, Gowen having asked him to "join up." Inspector Smith was not called as a witness. In view of the fact that Amos did not know whether the incident occurred before or after Gowen's suspension, the respondent's failure to have Inspector Smith testify, and Gowen's denial that he rode on Amos' street car and talked with him during 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his suspension,9 we find that Gowen did not engage in any violation of the rule involving riding with Operator Amos during his suspension. Inspector Woerter and Operator Burres testified as to the alleged violation of the rule by Gowen involving Burres on the morning of August 11, following Gowen's suspension earlier the same morning. Woerter, a man 63 years old who wore glasses, testified that at about 11: 00 a. in., he was riding on a street car which passed one operated by Burres and that Gowen was riding on the front platform talking to Burres. According to Woerter, when the cars were about 60 feet apart and approaching each other at a speed of 10 miles per hour, he was able to see both Gowen's and Burres' lips moving 'n colver- sation, and that Blares was gesticulating with one hand. He further testified that he later reprimanded both Burres and Gowen and sent a report in to Superintendent Powell.10 Operator Burres substan- tially corroborated Woerter's testimony as to the incident except that he denied that he himself was gesticulating.- Gowen, on the other hand, testified that following his suspension, he left the company offices at about 9: 30 a. in., and walked home-a 10 or 15 minute walk, stayed home until 2: 00 or 3: 00 p. in., and did not ride on Burres' street car that day or any day during his suspension. He further denied receiving the warning which `Woerter testified he gave Gowen later that day. In weighing the testimony of Inspector Woerter and Operator Burres as to the incident alleged to have occurred on the morning of August 11, against Gowen's denial that he rode Burres' car, there are two or three points which stand out. The story of Woerter, a man of 63 who wore eye glasses, that as he stood on the platform of one of two street cars moving toward each other at speeds of 10 miles per hour, he could discern Gowen's and Burres' lips moving in con- versation when the cars were 60 feet apart, requires considerable cred- ulity for acceptance. Buries did not remember who the operator was on Woerter's car and when cross-examined in regard to his failure to see anyone beside Woerter on the car, answered strangely : "That's the only person I was looking for. I was watching for him." Finally, it seems highly improbable that an employee who had just been given 0 Gowen testified that he did ride with Amos and solicited him for the Amalgamated, but that the incident occurred 2 weeks after Gowen 's discharge . Gowen continued to be active for the Amalgamated subsequent to his discharge, becoming a paid organizer in November 1944, and continuing as such up to the hearing herein. 1, Although this was the second occasion Woerter testified to observing Gowen in a viola- tion of the rule , it is noteworthy that Woerter did not testify to making the kind of report which would have resulted in a "caution" being entered on Gowen's record for a serious repeated violation. n Although the Trial Examiner seemed to feel that this was such a material conflict between Burres' and Woerter' s testimony as to discredit it and requires that Gowen 's denial that he rode on Burres' car be credited , we do not feel that a conflict as to whether or not Burres was gesticulating is so serious as in itself to require discrediting Burres and Woerter's testimony as to the incident. THE LOUISVILLE RAILWAY COMPANY 701 a 3-day suspension for a rule violation would walk out of the company offices and immediately violate the same rule. It seems much more probable that an employee in such position would be extra careful not to do something which might prevent his restoration to duty. Gowen's reply, when asked at the hearing why he was so certain he had not talked to any operators during his suspension, was: "Because I had been suspended for 3 days, and I knew what it was about, and I was very particular what I did in those 3 days, because 1 expected to go back to work." This attitude of watching one's step under such cir- cumstances seems in line with more probable human behavior. We further note that Gowen had freely admitted having violated the rule prior to his suspension when called into Powell's office on August It. Under all the circumstances, we are disposed to credit Gowen's testi- mony that on August 11 he left Powell's office and walked home, where he stayed until 2: 00 or 3: 00 p. in., and that he did not ride with Operator Burres that morning or any other day during his suspension. Accordingly, the record does not support the respondent's claim that Gowen continued to violate the rule after his suspension, and that he was discharged because of the continued violations. Moreover, we are convinced, and further find, that even if it be assumed that Gowen rode with Operator Burres on August 11, he would not have been dis- charged on August 14, but for the fact of his union activity which the respondent wished to discourage. The discharge was a continua- tion of the discriminatory treatment begun with his suspension. The respondent has argued that there is no basis for finding dis- parity of treatment because of union activity in Gowen's discharge, asserting that his was a flagrant case in that he was the only employee who ever violated the rule while under suspension for the same viola- tion. This argument first incorrectly assumes that he was justifiably suspended. As we have already found. however, his suspension was itself discriminatory and would not have occurred if the respondent had not been motivated by a desire to discourage his union activities. As previously noted, the respondent produced no specific instances of either suspensions or discharges for violating the talking rules prior to Gowen's case. The only specific cases of discharge involving viola- tion of the talking rules produced by the respondent all took place after Gowen's discharge, one in 1944 and two in 1945. They are all distinguishable from Gowen's case and likewise do not offset the con- clusion that Gowen was given disparite treatment because of his union actlvity.12 12 Gowen was an operator with 10 years of service, with no "cautions" on his record and was discharged in a tight manpower situation when Superintendent Powell admitted the respondent's policy was not to discharge men. We would rather cure them and get them to stop those rule violations and keep them in the service." Lawrence W. Bagby, discharged September 6, 1944. had the notation on his record, 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At oral argument, the respondent's counsel argued that the respond- ent could not have had a motive or purpose to discourage Gowen's activity in behalf of the Amalgamated, but on the contrary that it was to the respondent's advantage to allow it to go on on a theory of dividing the Independent's competitors, counsel asserting that the real threat to the Independent was a. different outside labor organization which won the election held in the spring of 1946, evidence of the holding and results of which the respondent sought by motion to add to the record herein. The short answer to any such contention is that the record does not show that at the time of Gowen's discharge in 1944, any outside organization other than the Amalgamated was then engaged in an attempt to organize the respondent's employees. The key to the discharge of Gowen is revealed in the statement which Superintendent Powell did not deny making to Gowen at the time of the discharge : "If you had someone working for you that was doing something that would hurt your business you would get rid of him, wouldn't you?" We find that Powell had reference to Gowen's union activity, and that by discharging Gowen because of such activity, the respondent discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Amalgamated, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The Trial Examiner recommended that the respondent reimburse its employees for dues checked off from their wages on behalf of the the Independent, nor was membership otherwise compelled, and dues of the complaint. The respondent had no closed-shop contract with the Independent, nor was membership otherwise compelled, and dues were checked off only on individual voluntary authorization. Under all the circumstances, we are of the opinion that the effectuation of the policies of the Act do not order that the respondent reimburse its employees for dues checked off from their wages on behalf of the Independent 13 The Trial Examiner's recommendation in this respect will not be adopted. We shall follow the Trial Examiner's recommendation with respect to reinstating and making whole Gowen and shall order that the respondent make him whole for any loss of earnings on his part, only from the period since August 21, 1945, the date on which the com- plaint herein was issued. "Carrying a woman behind front curtain with him ," and had a bad service record as well. James McCoy, discharged September 5, 1945, also had the notation on his record, "Carrying lady friend around on his car." Lily Warren , discharged September 2, 1945, was the only one of the group discharged for talking to an operator. She was a woman ; her employment was only for a year and a half as contrasted with Gowen 's 10 years ; her record showed "cautions" ; and her discharge was long after V-J Day. 23 See Matter of Remington Arms Company, Inc., 62 N. L. R. B. 611, 614. THE LOUISVILLE RAILWAY COMPANY ORDER 703 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 respondent, The Louisville Railway Com- pany, Louisville, Kentucky, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of, or contributing financial or other support to, Union of Louisville Railway Employees, or any other labor organization of its employees ; (b) Recognizing Cooperative Welfare Association, Louisville Rail- way Cooperative Association, or Union of Louisville Railway Em- ployees, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to its contract of December 31, 1944, and supple- mental agreement dated June 1, 1945, with Union of Louisville Rail- way Employees, or to any extension, renewal, modification, or supple- ment thereto, or to any other agreement with Union of Louisville Railway Employees which may be in effect now or in the future; (d) Discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, or Organizing Com- mittee of the Louisville Railway Company of the Transport Workers of America (CIO) or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, or Organizing Com- mittee of the Louisville Railway Company of the Transport Workers of America (CIO), or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purposes 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 Union of Louisville Railway Employees as the representative of any 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, rates of pay, wages, hours of em- ployment, or other conditions of employment; (b) Offer James R. Gowen immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (c) Make whole James R. Gowen for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from August 21, 1945, to the date of the respondent's offer of reinstatement, less his net earn- ings during said period; (d) Post at its main office and at all of its car barns in Louisville, Kentucky, copies of the notice attached to the Intermediate Report, marked "Appendix A." 14 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted, Reason- able steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Messrs. Louis S. Penfield and Herbert J. Nester, for the Board. Messrs. Ogden, Galphin, Tarant, and Street, by Mr. John E. Tarrant, of Louisville, Ky., for the Respondent. Messrs. Zinaring and Rabe, by Mr. Fans Lehmann, of Chicago, Ill., for Amalgamated. Messrs. Herbert H. Mon sky and Walter Case, both of Louisville, Ky., for Trans- port Workers. Messrs. Morris and Garlove, by Messrs. Charles W. Morris and James T. Noon, both of Louisville, Ky., for the Independent. STATEMENT OF THE CASE Upon amended charges duly filed by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, herein called the Amalgamated, and Organizing Committee of the Louisville Railway Company of the Transport Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Trans- port Workers, the National Labor Relations Board, herein called the Board, 14 Said notice , however, shall be, and it hereby is amended by striking from the first paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting in lieu thereof the words "A DECISION AND ORDER." THE LOUISVILLE RAILWAY COMPANY 705 by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint, dated August 21, 1945, against The Louisville Railway Company, Louisville, Kentucky. herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce, 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. Copies of the complaint and amended charges, accompanied by notice of hearing thereon, were duly served upon the Respondent, Amalgamated, Transport Workers, and Union of Louisville Railway Employees, herein called the Independent, an alleged company-dominated union. With respect to the unfair labor practices, the complaint alleged in sub- stance; (1) that on or about February 27, 1920, the Respondent initiated, formed, and sponsored the Cooperative Welfare Association, herein called CWA, and at all times thereafter until about April 15, 1924, the Respondent dominated and interfered with the administration of CWA and contributed financial and other support thereto; that on or about April 15, 1924, the Re- spondent initiated, formed, and sponsored the Louisville Railway Cooperative Association, herein called LRCA, a continuance of and a successor to the afore- said CWA, and at all times thereafter until about May 11, 1937, the Respondent dominated and interfered with the administration of LRCA, and contributed financial and other support thereto; that on or about May 11, 1937, the Re- spondent initiated, formed, and sponsored the Union of Louisville Railway Employees, herein called the Independent, a continuance of and a successor to the aforesaid LRCA, and at all times thereafter the Respondent has dom- inated and interferred with the administration of the Independent, and con- tributed financial and other support thereto; (2) that on or about August 14, 1944, the Respondent discharged James R. Gowen for the reason that he joined and assisted the Amalgamated; and (3 ) that by the aforesaid acts, since July 5, 1935, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Pursuant to notice, a hearing was held at Louisville, Kentucky, on October 3, 4, 5, and 8, 1945, before the undersigned, W. P. Webb, the Trial Examiner, duly designated by the Chief Trial Examiner. The Board, the Respondent, Amalgamated, Transport Workers, and the Independent were represented by counsel. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing , the Respondent filed its answer denying that it had engaged in the alleged unfair labor practices, but admitting that it cooperated with its employees in forming and administering CWA. It also admitted that it made contributions to CWA and LRCA to be used for sickness and death benefits of its employees, and that for a time after May 11, 1937, it made payments to the Independent to be used for sickness and death benefits of its employees, and that it permitted the Independent to use an office in its building without charge. A written motion to intervene in this proceeding, duly filed by the independent, was granted by the Trial Examiner without objection. The Independent also filed an answer to the complaint, denying the allegations of the complaint insofar as they related to it. At the conclusion of the hearing, the Trial Examiner granted, without ob- jection, a motion by the Board to conform the pleadings to the proof with re- spect to formal matters. At the same time, the Respondent moved to dismiss the complaint in its entirety, and the Independent moved to dismiss all allega- tions of the complaint affecting the Independent. Rulings on these motions were 701592-47-vol. 69-46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserved by the Trial Examiner. They are hereby denied. Opportunity to argue orally before the Trial Examiner at the conclusion of the hearing was waived by the parties. Briefs have been received by the undersigned from all of the parties. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , The Louisville Railway Company, is a Kentucky corpora- tion, having its principal office and place of business in Louisville, Kentucky, where it owns and operates a street railway and bus transportation system, serving the City of Louisville and Jefferson County, Kentucky. During the year 1944, the Respondent's operating revenue was $6,640,894. During that period, it carried 85,629,475 revenue passengers. During 1944, the Respondent's equipment consisted of 225 street cars, 192 busses, and 60 trolley coaches. On December 31, 1944, the Respondent had on its pay roll 930 employees. The following facts were stipulated by the parties : During the year 1944 the Respondent purchased the following supplies and equipment for use in connection with its transportation business. 1. Gasoline and oil valued at approximately $180,000 from the Standard Oil Company of Kentucky, all of which oil was obtained by said Standard Oil Company from points outside the State of Kentucky; 2. Electric energy valued at $300,000 from the Louisville Gas and Electric Company ; 3. Tires leased for the sum of approximately $48,000 from the Firestone Tire and Rubber Company, but manufactured at points outside the State of Kentucky ; 4. Busses and other equipment valued in excess of $200,000 from dealers located in the City of Louisville, but manufactured by manufacturers in states other than the State of Kentucky. During the year 1945, or as soon thereafter as it is possible to obtain delivery, the respondent expects to add to its transportation system equip- ment consisting principally of busses, trolley coaches and street cars, valued in excess of $1,500,000. All of this equipment will be purchased through dealers within the City of Louisville, but will be manufactured by manu- facturers whose places of business are located in states other than the State of Kentucky. The Bridge Transit Company, a separate and distinct company from the Re- spondent, operates an interstate electric railway line from a terminal on Jeffer- son Street in Louisville, Kentucky, which it leases from the Respondent, to New Albany and other points in Indiana. In its operations from the Louisville termi- nal to the Kentucky and Indiana bridge across the Ohio river, the Bridge Transit Company uses the Respondent's equipment, trackage, and power, which it leases from the Respondent at a rental of approximately $3,000 a month. Since July 1940, the Respondent has been under contract with National Transitads, Inc., with respect to the display of advertising matter on the Re- spondent's rolling stock. These advertisements cover many products which are manufactured outside of Kentucky and which are sold on a nation-wide basis. It was stipulated by the parties that there are no carriers, other than the Respondent, legally authorized to pick up and discharge passengers within the corporate limits of the City of Louisville, Kentucky, except licensed taxicabs, THE LOUISVILLE RAILWAY COMPANY 707 of which there are approximately 502 in operation. The population of Louisville, Kentucky, is approximately 385,000. The Respondent also furnishes passenger transportation to certain areas outside of the Louisville city limits.- The Respond- ent's street railway and bus service provides passenger transportation to and from interstate railway and bus stations, industrial plants whose products move in interstate commerce, and military installations, especially government hospitals. In the Baltimore Transit ease 1 the Court said : The test of the Board's jurisdiction under the Act is not whether the op- erations of the company constitute interstate commerce, but whether a stoppage of its operations by threatened industrial strife would result in substantial interruption to or interference with the free flow of such com- merce. . . . If Congress may regulate the labor relations of a clothing manufacturer (N. L. R. B. v. l"ainblatt, supra), the wages of an elevator operator in a loft building (Kirschbaum Co. v. Walling, supra ), or the grain acreage of a farmer (Wickard v. Filburn, supra), because of the effect these may have on interstate commerce, it would be absurd to say that its power does not extend to the labor relations of a street transportation company, upon whose operation the industrial life of a great city extensively engaged in interstate commerce is so largely dependent. Subsequent to its decision in the Baltimore Transit case, the Board has as- suimed jurisdiction over several local transit companies, whose operations were less extensive than that of the Respondent? The instant case is clearly dis- tinguishable from the Chicago Motor Coach Company 3 case where the Board refused to assert jurisdiction, since this Company was only one of several transportation lines in Chicago and carried only a small percentage of the pas- sengers using local transit lines, whereas the Respondent is the only public carrier of passengers, except taxicabs, within the City of Louisville. The rec- ord is replete with conclusive evidence that the Respondent is within the juris- diction of the Act, and the undersigned so finds, the contention of the Respond- ent to the contrary notwithstanding. Prior cases involving the Respondent It was stipulated by the parties that the records of the Regional Office in Cin- cinnati, Ohio , show that the following cases have been filed with respect to the Respondent , and the following action was taken by the Board. Case No. 9-C-21: Charges filed by Amalgmated on January 22, 1936, alleging that the Respondent had violated Section 8 (1) and ( 3) of the Act. These charges were withdrawn on May 4, 1936. Case No. 9-R-8: Petition filed by Amalgamated on May 6, 1937. Dis- missed by order of the Board on November 30, 1937. Case No. 9-0-14: Charges filed by Amalgamated on May 17, 1937, alleg- ing violation of Section 8 (1), (2) and (5) of the Act. Charges subse- quently dismissed by the Regional Director. Case No. 9-R-368: Petition filed by Transport Workers on May 17, 1940. Withdrawn by Transport Workers pursuant to permission granted by the Board on July 15, 1940. i N. L. It. B. v. Baltimore Transit Company, 140 F. (2d) 51 (C. C. A. 4), cert. denied 321 U. S. 795. 2 See Charleston Transit Company, 57 N. L . R. B. 1164 ; Chicago Surface Lines, 58 N. L. R. B . 1140 ; Menderson Bus Lines, 58 N. L. R. B. 820 ; Spokane United Railways, 60 N. L. It. B. 14. 3 62 N. L. R. B. 890. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case No. 9-R-176 t : Petition filed by Transport Workers on November 18, 1944. Withdrawn after the issuance of the complaint in the instant case. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, affiliated with the American Federation of Labor, Organizing Committee of the Louisville Railway Company of the Transport Workers of America (CIO), and Union of Louisville Railway Employees, unaffiliated, are labor organizations admitting to membership employees of the Respondent. Cooperative Welfare Association, and Louisville Railway Cooperative Asso- ciation, both unaffiliated, were labor organizations admitting to membership em- ployees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Domination and interference with the formation and administration of the inside labor organizations, viz: CWA, LRCA, and the Independent From the year 1920 to the date of the instant hearing, the Respondent has dealt with its employees for the purposes of collective bargaining and otherwise, only through an inside organization of its employees, known successively as Coopera- tive Welfare Association, Louisville Railway Cooperative Association, and Union of Louisville Railway Employees. 1. The Respondent's formation and installation of CWA in 1920 The earliest evidence appearing in the record, with respect to the formation of CWA, is contained in its constitution, which was published in the January 15, 1920, issue of Trolley Topics.' This constitution was prepared by a joint com- mittee composed of delegates elected by the employees and those appointed by the Respondent. It provided for an organization known as the Cooperative Welfare Association, the purposes of which were to provide for collective bargaining and cooperative welfare. It was recognized by the Respondent as the exclusive bar- gaining agent of its employees. The constitution further provided that employees with 4 months' service were eligible to become members. Membership was divided into "active" and "limited" membership. Active membership extended to all activities and benefits of the organization. Limited membership was confined to cooperative benefits. Executives, supervisory employees and certain clerical employees were eligible only for limited membership. CWA functioned through 3 committees, known as "Local Committees," "Departmental Committerooo" and a "General Committee." They took cognizance only of wages, hours and other conditions of service. These committees were composed of in equal number of active members, and persons selected by the Respondent, who were not necessarily members of CWA. Local Committees were composed of 2 active members selected by the employee members,' and 2 persons appointed by the Respondent. Depart- mental Committees were composed of one person selected by all of the local com- mittees in that department, and an equal number selected by the Respondent. The General Committee was composed of delegates elected by the Departmental Committees from among their own number, and an equal number appointed by the Respondent. The General Committee met monthly and dealt with adjust- 4 Trolley Topics is a pamphlet published by the Respondent. It is "devoted to the interests of, and for free distribution to, employees of the Respondent." c The employee receiving the greatest number of votes was designated as "Committeeman No. 1, and the next highest as Committeeman No. 2." THE LOUISVILLE RAILWAY COMPANY 709 ments, complaints , grievances , general welfare of the Respondent and the em- ployees, expenditure of funds of the organization, and any other business within the scope of the organization . Grievances were first taken up by the Local Com- mittees, and if not settled, they went to the Departmental Committees, then to the General Committee, and then to arbitration, if no settlement had been reached. Local Committees were elected annually, and the elections were held on the Respondent's premises. The General Committee was empowered to make by- laws. Funds of CWA were provided for by deductions from the pay checks of the members, both active and limited, and a like amount contributed by the Respondent. The custody of these funds was confided to 2 trustees; one the Treasurer of the Respondent, and the other a member of the General Committee, who had been selected by the employee members of the Departmental Committees. These funds were expended under the direction of the General Committee. The constitution was signed by a committee composed of the Respondent's vice-presi- dents Miller and Riddle, Attorney Humphrey, and 18 others. On February 27, 1920, an organizational meeting of the General Committee of CWA was held in the Director's room of the Respondent at 314-318 West Jefferson Street, Louisville, Kentucky. Representing the Respondent at this meeting were John W. Barr, W. S. Speed and W. If. Kaye, 3 members of the Board of Directors of the Respondent (who were then in charge of operations of the Respondent due to a vacancy in the office of President). Churchill Humphrey, general counsel of the Respondent, F. H. Miller, vice-president in charge of engineering, and Samuel Riddle, vice-president in charge of transportation. CWA was represented by six employese.° At that meeting Attorney Humphrey was elected chairman of the General Committee. Vice-President Miller was appointed secretary of the meeting. Humphrey suggested that the necessary steps be taken to organize CWA. Three committees were appointed at this meeting ; one composed of Director Kaye and two employees to investigate the question of insurance and sick benefits ; one composed of Vice-Presidents Miller and Riddle and one em- ployee, as a membership committee ; and the other to confer with the then exist- ing Louisville Railway Relief Association to explain to the latter the objects and benefits of CWA. The next evening a similar meeting was held at the home of Director Kaye, and reports from the three committees were received. Attorney Humphrey was authorized to prepare a membership application form. On March 9, 1920. at a special meeting of the Louisville Railway Relief Association, the following motion was carried : "Moved that the Louisville Rail- way Relief Association merge with the Cooperative Welfare Association on April 1, 1920, at which time all funds, properties, and equipment be turned over to the proper officers of the Cooperative Welfare Association." Members of the Louis- ville Railway Relief Association were requested to execute applications for membership in CWA. At a meeting of the General Committee of CWA on March 22, with all members present, Attorney Humphrey was appointed on the Finance Committee to take charge of the funds until the next regular meeting. At that meeting, Vice- Presidents Riddle and Miller submitted 1275 applications of employees for mem- bership in CWA, to become effective April 1, 1920. The 3 committees, above mentioned, were directed by Chairman Humphrey to submit proposed by-laws at the next meeting. O Those employees were Samuel Wilson , Dave Moore, George Brockers , L. H. Broadus, Chris Buckhold , and D . L. Kehl. 4 The record shows that the Louisville Railway Relief Association was formed about the year 1910 for the exclusive purpose of taking care of sick and death benefits. It did not serve as a collective bargaining agent for the employees. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At a meeting of the General Committee of CWA in the Respondent's Directors room on April 12, a motion was made that an increase of 3 cents an hour be granted to all carpenters including the foreman. It was also moved that the By-laws, as read and amended, be adopted and published in Trolley Topics. The By-laws of CWA, as published in Trolley Topics of April 24, provide in substance that: all employees between the ages 15 and 46, having 4 months' service with the Respondent, were eligible for membership; all applications for membership must first be approved by the applicant's foreman or department head, and then by the General Committee: two chairmen of the General Committee shall be chosen, one by the employee members of the General Committee, and the other by members representing the Respondent; these chairmen shall alternately serve at meetings of the General Committee; the President of the Respondent shall be Honorary Chairman, without vote; meetings of the General Committee shall be held monthly ; the decision of the General Committee with respect to all con- troversies arising in connection with CWA shall be final; membership in CIA shall carry with it life insurance, sick and accident benefits; the dues of mem- bers shall be $1.00 a month, payable in advance, to be deducted from their wages by the Respondent; the Respondent shall contribute an equal amount, that is, for every dollar deducted from the employees wages, the Respondent contributed $1.00; all funds, thus acquired, shall be deposited by the Respondent's Treasurer in a bank, to the credit of CWA; disbursements from this account shall be by check, signed by the Respondent's Treasurer or Cashier and counter-signed by the employee Chairman or Vice-Chairman of the General Connuittee ; employee mem- bers of the General Committee and the Departmental Committees shall be paid from CWA funds for time spent on CWA business; the Respondent members of these committees shall be paid by the Respondent for similar services ; and mem- bers of the Local Committees shall serve without compensation. The By-laws established a regular procedure for filing applications for sick and death benefits. Also a specific form, was prescribed for application for membership in CWA. This application form stated that the applicant authorized the Respondent to deduct his CWA dues from his pay. At a meeting of the Louisville Railway Relief Association on June 4, 1920, a resolution was unanimously adopted to dissolve this organization and turn over all of its assets to CWA, and to publish a notice to that effect in 2 local news- papers for 4 consecutive weeks, which was clone. The notice stated in substance that the Louisville Railway Relief Association had been dissolved, and its financial officers had been authorized to turn over all of its assets and equipment to CWA. 2. The formation of LRCA On April 15, 1924, a regular meeting of the General Committee of CWA was called to order by James P. Barnes, president of the Respondent. The members of the General Committee at that time, who represented the Respondent, were Directors Kaye and Speed, Vice-Presidents Miller and Riddle, and one other. After discussion, it was agreed and decided to change the name of CWA to Louisville Railway Cooperative Association, referred to herein as LRCA. The Constitution and By-laws of CWA were amended accordingly. There is no evi- dence in the record as to why the name of the organization was changed ; neither is there any evidence that any other change was made. Minutes of subsequent meetings of LRCA warrant the presumption that no other change was made. The record discloses that at a regular meeting of the General Committee of LRCA on April 11, 1928, President Barnes, Director Kaye, and Vice-Presidents Riddle and Miller were present as members of the General Committee. At that meeting Miller moved that the recommendations of the committee on insurance be referred to Charles Milner, assistant general counsel of the Respondent, for THE LOUISVILLE RAILWAY COMPANY 711 the purpose of drafting a proposed amendment to the By-laws. The motion was carried. A regular meeting of the General Committee was held on May 9, 1928, which was presided over by President Barnes. Among those present represent- ing the Respondent were Directors Speed and Kaye, and Vice-Presidents Miller and Riddle. The recommendations of the insurance committee were adopted, sub- ject to the approval of the Respondent's Board of Directors. On November 12, 1930, a regular meeting of the General Committee was held, with Vice-President Miller acting as Chairman. Director Kaye and other members, representing the Respondent, were present. A report of the committee on By-laws was accepted, subject to the approval of the Respondent's Board of Directors. At a meeting of the General Committee of LRCA on September 29, 1933, the Constitution was amended to provide for an additional class of membership known as "associate membership." Thereafter membership was defined as "Associate Membership," which extended to all activities of the Independent, except participation in co- operative benefits and insurance and eligibility to hold office of committeeman. "Limited Membership" which extended only to participation in cooperative bene- fits ; and "Active Membership" which extended to all activities of the Independent. On December 18, 1936, a meeting of the General Committee of LRCA was held. Vice-President Miller presided as chairman. The members of the General Com- mittee present, who represented the Respondent, were Directors Alexander, Burnett, Powell, and Brewer. Those representing the employees were Gordon, Hutchens, Noon, Wilson and Abbott. 3. The formation of the Independent On May 10, 1937, a special meeting of the General Committee of LRCA was called to order by Vice-President Miller, as chairman. The committee members present representing the Respondent were Directors Alexander, Burnett and Rash, and Powell, superintendent of transportation. The committee members present, representing the employees, were Gordon, Hutchens, Noon, Wilson and Patterson. The purpose of the meeting was to discuss certain amendments to the Constitution and By-laws of LRCA, which had been prepared by Judge Dietzman, attorney for LRCA, and which would be brought before the General Committee at an adjourned meeting to be held the next day. The adjourned meeting was held the next day, with Vice-President Miller presiding. The same members of the General Committee were present, with the addition of Heuser, for the Respondent. At that meeting the name of LRCA was changed to Union of Louisville Railway Employees, referred to herein as the Independent. Two meetings were held on that day. The full text of the minutes of these meetings reads as follows : Tuesday, May 11, 1937 The adjourned meeting of the General Committee was called to order by Chairman, F. H. Miller, at 9:00 a. m., Tuesday, May 11, 1937. Present for Men : Messrs. Gordon, Hutchens, Noon, Patterson, Wilson. Present for Com- pany : Messrs. Alexander, Burnett, Powell, Rash, Heuser. On motion duly made, seconded and carried, the ten percent increase effective May 1, 1937, was voted to the Secretary. The amendments as corrected and the Trust Agreement were fully dis- cussed, after which on motion duly made and seconded, it was unanimously, RESOLVED, That The Constitution and By-laws of the Louisville Railway Cooperative Asso- ciation be amended so as to read as a whole as follows: (See Charter and By-laws of the Union of Louisville Railway Employees). 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Said Amendments shall be effective immediately upon approval of the Board of Directors of the Louisville Railway Company and shall thereafter constitute the Charter and By-laws of the Union of Louisville Railway Em- ployees until amended as therein provided. Adjourned at 9:45 A. M. WM. L. MORGAN, Secretary. N. B. The Trust Agreement is in the Vault of the Secretary of the Louis- ville Railway Company. UNION OF LOUISVILLE RAILWAY EMPLOYEES Tuesday, May 11, 1937 The Constitution and By-laws of the Louisville Railway Cooperative Asso- ciation have been amended so as to accomplish the following principal changes: (1) The name of the Association has been changed to Union of Louisville Railway Employes. (2) All Company representatives have been removed from all committees, and the Union is to be managed exclusively by Employee members. (3) The local committees, the departmental committes and the general committee have been done away with ; and the affairs of the Union are to be managed by two employee boards: (a) The Union Relations Board (14 members). ,(b) The Central Board (5 members). (4) The Union Relations Board, until July 1, 1937, shall consist of the present Number One Committeemen. On July 1, 1937, a new Union Relations Board will be elected, each unit electing one delegate to the Union Relations Board. That delegate may be recalled at any time by two-thirds of the Union members at the unit lie represents. The Union Relations Board shall meet on the fourth Thursday of each month. Any member of the Union may ap- pear before it in person and make any complaint or suggestion which lie sees fit, or in writing may direct his delegate to bring any matter before the Board. (5) The Central Board shall, until July 1, 1937, consist of the present employe members of the General Committee. On July 1, 1037, after the election of the new Union Relations Board, the Union Relations Board will elect from its own members a new Central Board. The Central Board shall meet on the fourth Friday of each month ; fix the benefits to be paid by the Union; handle all negotiations on behalf of the Union with the Company. (6) The Company has waived its right to ever receive any part of the funds of the Union. The securities of the Union have been placed in trust with the Fidelity and Columbia Trust Company, Trustee. The income from the securities, shall be used in paying sickness and death benefits. The Principal of the trust fund may be used when necessary to pay sickness and death benefits up to the present scale, but cannot be used to pay sickness and death benefits above the present scale at any time when the trust fund does not have $100,000 in it. If at any time the Union is discontinued, the trust fund can only be used by the Trustee to pay sick and death benefits to employes of the Company who were members of the Union at the time it was discontinued. (7) The Union Relations Board can at any time expel any member of the Union if that member engages in any activity contrary to the best inter- ests of the Union. W. L. MORGAN, Secretary, Union of Louisville Railway Employes. THE LOUISVILLE RAILWAY COMPANY 713 On May 13, 1937, a meeting of the Independent was held. The full text of the minutes of this meeting reads as follows : Thursday, May 13, 1937 A Special meeting of the Central Board of the Union of Louisville Railway Employes was called to order by Chairman, J. T. Noon, at 10: 30 A. M., Thursday, May 13, 1937. Present were: Messrs. Gordon, Hutchens, Noon, Patterson, Wilson. The Chairman stated that the Constitution and By-laws of the Louisville Railway Cooperative Association, as amended at meeting of the General Committee held on May 11, 1937, changing the name of the Louisville Rail- way Cooperative Association to Union of Louisville Railway Employes, were approved by the Directors of the Louisville Railway Company at a meeting held May 11, 1937, and in accordance with the By-laws of the Union of Louisville Railway Employes, the account of the current funds now de- posited in the name of the Louisville Railway Cooperative Association with the Fidelity & Columbia Trust Company should be transferred to the ac- count of the Union of Louisville Railway Employes, and signature cards of those authorized to sign checks for the Union should be secured and pre- sented to the Fidelity & Columbia Trust Company. In accordance with the Charter, as amended, a Trust Agreement 8 was entered into on May 11, 1937, between the Union of Louisville Railway Employes, Fidelity & Colum- bia Trust Company, as Trustee, and the Louisville Railway Company, plac- ing in trust with the Fidelity & Columbia Trust Company the securities now owned by the Union of Louisville Railway Employes. On motion duly made, seconded and carried, it was RESOLVED, That the Chairman and Secretary be authorized to transfer the account of the current funds now deposited with the Fidelity & Columbia Trust Company in the name of the Louisville Railway Cooperative Associa- tion, to the Union of Louisville Railway Employees, and be it FURTHER RESOLVED, that in accordance with the By-laws of the Union, disbursements from the current funds shall be made on checks prepared by and approved by the signature of the Secretary of the Union, or in his absence, by the Assistant Secretary, and countersigned by a member of the Central Board from the Clerical Department, or in his absence by any other member of the Central Board, and those having authority to sign checks are as follows: Secretary, W. L. MORGAN. Assistant Secretary, L. E. GAINES. Central Board Members, J. T. NooN. E. PATTERSON. EUGENE HUTCHENS. E. E. WILSON. MILTON GORDON. On motion made and seconded, the Secretary is authorized to spend the necessary funds in reprinting the various forms made necessary by the ° The Trust Agreement provided for : Section L-Powers and duties of the Trustee with respect to investments ; Section 2-Accumulations and distribution of income ; Section 3- Distribution of principal during continued existence of the Union ; Section 4-Right to increase corpus ; Section 5-Right to alter and amend agreement ; Section 6-Dissolution of Union-Distribution of principal ; Section 7-Compensation of Trustee ; Section 8- Resignation of Trustee ; and Section 9-Railway waiver of interest in funds of Union. The face value of the securities turned over to the Trustee was approximately $100,000. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change in same and to have a sufficient number of the Charter and By-laws printed for distribution. W. L. MoBOAN, Secretary. On May 13, 1937, the Independent instructed the Fidelity & Columbia Trust Company by letter, to transfer the funds of LRCA to the account of the Inde- pendent, and enclosed a copy of the minutes of the meeting of the Central Board on Thursday, May 13, 1937. At a meeting of the Union Relations Board of the Independent on May 24, 1938, the following motions were approved : On motion duly made, seconded and carried, it was decided that when the Trust Fund reaches $100,000, that at that tithe the Secretary would be authorized to issue a paid-up life insurance policy in the amount of $150, payable to a designated beneficiary, to any member of the Union, who has for fifteen (15) years, or more, been a member of the Union, and who leaves the service of the Company for any cause. It was moved, seconded and carried, that the Charter, Article 6, Sec. 2 Central Board; and By-laws, Article III, Title C. Sec. I, Central Board, shall be changed to read as follows: "The Central Board shall conduct all negotia- tions on behalf of the Union with the Company, and any agreement entered into between the Central Board and the Company, shall bind all members of the Union during the term of that agreement; PROVIDED, that such agree- ment shall have previously been approved by two-thirds majority of the Union Relations Board. On May 11, 1937, a booklet, entitled "Charter and By-laws of Union of Louis- ville Railway Employees" [the Independent] was printed. On the inside of the front cover, there appears the, following history of the Independent : Organization On April 1, 1920, the Co-operative Welfare Association [CWA] was or- ganized and consolidated with the Louisville Railway Relief Association. On June 1, 1924, the Constitution and By-laws were revised and reprinted and the name changed to Louisville Railway Co-operative Association. On January 1, 1931, the Constitution and By-laws were revised and reprinted. On April 1, 1036, the Constitution and By-laws were reprinted. On May 11, 1937, the Constitution and By-laws were amended and the name changed to Union of Louisville Railway Employees [the Independent]. This clearly indicates that the Respondent and the employees considered the Independent as a successor to LRCA and CWA. On December 31, 1944, the Respondent and the Independent entered into a written agreement ° for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. The preamble and certain sections of this agreement read as follows : This Agreement entered into as of December 31, 1944, by and between Union of Louisville Railway Employees (hereinafter called the Union) and The Louisville Railway Company (hereinafter called the Company) WITNESSETH: 9 This was the first consolidated contract between the Respondent and the Independent or its predecessors, LRCA and CWA. However, there has been a number of separate agreements with these organizations with respect to particular subjects. THE LOUISVILLE RAILWAY COMPANY Section 1. Purpose of agreement 715 The purpose of this agreement is to consolidate into one agreement the contract between the Union and the Company which is presently incor- porated in a number of separate instruments ; to amend that contract in certain particulars; to provide for an equitable relationship between the Company and its employees through their duly accredited representatives ; to prescribe wages, hours of service and conditions of service ; and to provide procedure for continuing collective bargaining and for the adjust- ment of disputes and grievances, including final resort to arbitration, if the same shall become necessary. Section 2. Employees to whom applicable This agreement shall apply to all present and future employees of the Company. The term "employees", as used herein, shall mean all employees of the Company who are active or associate members of, or eligible for active or associate membership in, the Union, who have completed the probationary periods prescribed by their respective Department Heads and who have been accepted by the Company for permanent employment, but no probationary period shall exceed ninety days in length in the Trans- portation Department and thirty days in length in the other Departments. Section 3. Union recognition The Company recognizes the Union as the collective bargaining agency for its employees. Section 4. Duration, termination and change of agreement This agreement shall continue in force and be binding upon the Company, the Union and the employees to and including May 31, 1945, and from year to year thereafter , provided that either party hereto, desiring to make any change in this agreement on June 1, 1945, or on June 1 of any year there- after, shall, before May 15, 1945 , or before May 15 of any subsequent year, give notice in writing to the other party hereto by registered mail addressed to and delivered at the office of such other party of that party 's desire to secure such change to become effective on June 1 following, accompanying such notice with a copy of any such proposed change or changes desired. Either party to this agreement desiring to terminate it on May 31 , 1945, or May 31 of any subsequent year may do so by giving notice in writing to that effect to the other party hereto by registered mail addressed to and delivered at its office before May 15, 1945, or May 15 of such subsequent year. In the event such notice of election to terminate this agreement is given, then on May 31 following the giving of such notice , this agreement and all of its terms and provisions shall terminate and become null and void unless both parties agree in writing that such notice may be withdrawn. Section 6. Check off The Company will deduct dues of members of the Union from their pay, and deliver the dues so collected each calendar month to the financial secre- tary of the Union in a lump sum within ten days after the final pay made in that month for work performed in the preceeding calendar month. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9. Covenant against labor disturbances In recognition of the fact that the Company renders an essential public service and that it and its employees are in substance public servants, it is solemnly covenanted by the Union and the Company and is to be understood as a part of the employment contract of every employee to whom this Agree- ment is applicable, that there shall be no lockouts, strikes, walkouts or interference or interruptions of service, by reason of any question or dispute involving wages, hours, working conditions or otherwise which may arise between the Company and the Union or the employees, Section 22. Trust fund and benefits The Union and the Company agree that the terns and conditions of the trust agreement applicable to. the trust fund now held by Citizens Fidelity Bank and Trust Company (formerly known as Fidelity and Columbia Trust Company) as Trustee, shall be a part of this agreement to the same extent as if incorporated herein. The financial eontribntions made by the Company in connection therewith shall be continued at the present rate and shall be paid to the Trustee and used only in connection with the Trust Fend, for the payment of sickness, accident and death benefits, as set out in the trust agreement, and for expenses incurred in connection therewith. No funds contributed by the Company for the benefit of the Trust Fund as herein set out shall be used to pay any part of the salary of any officer, agent or em- ployee of the Union, or for any Union expenses not connected with benefits under said Trust Fund. Section 24. Continuation of existing conditions All general conditions now existing under Company rules, regulations and agreements with the Union which are not specifically changed by this agreement shall continue in force until changed as herein provided. The agreement also provided for a collective bargaining procedure, manage- ment, discipline, grievances, lay-offs, free transportation to all employees, leaves of absence, vacations with pay, uniforms, bulletin boards for Independent's use, and rates of pay and overtime. On June 1, 1945, a supplemental agreement was entered into between the Respondent and the Independent, amending certain sections of the original agreement, as follows : Section 13-Vacations with pay : Section 18-Transpor- tation Department; and Section 23-National War Labor board approval. Organization funds Beginning with the inception of CWA in 1920 the Respondent deducted $1.00 a month from the wages of the employees who were members of CWA, and the Respondent contributed a like amount. Each month the Respondent turned over the total amount to CWA. This practice continued throughout the exist- ence of CWA. In April 1924, the name of this organization was changed to LRCA and the same deductions and contributions continued without change. On May 11, 1937, the name of the organization was charged to the Indep-ndent but no change in the deductions or contributions was made. All funds and securities of LRCA were turned over to the Independent. Also on May 11. 1937, the Re- spondent, the Independent, and the Fidelity and Columbia Trust Company, as Trustee, entered into a Trust Agreement, pursuant to which, all of the securities THE LOUISVILLE RAILWAY COMPANY 717 of the Independent, valued at approximately $100,000, were turned over to the Trustee for investment. In this connection, Section I, Article IX of the Charter and By-laws of the Independent as of December 8, 1941, reads as follows : During the continued existence of this Union, the Trustee shall periodi- cally pay over to the Central Board or its designee all of the accrued net income from the Trust Fund and so much of the principal of the Trust Fund as may be necessary in connection with the other income of the Union to enable the Union to pay the sickness, accident and death benefits fixed by the Central Board. The Respondent continued to pay over to the Independent the dues checked off and its contribution, monthly. According to F. D. Childs, when he became secretary of the Independent in August 1940. he received one cheek each month from the Respondent for the dues checked off together with the Respondent's contribution. That check was deposited to the credit of the Independent, which maintained only one banking account. Also at that time, all income from the Trust Fund was turned over to the Independent. This arrangement continued until February 1945, at which time, the Independent set up another banking account known as Sick and Death Benefit Account. Thereafter, the Respondent gave the Independent two checks each month, one for dues checked off and one for its contribution. The latter check was deposited in the Sick and Death Benefit Account. Income from the Trust Fund was thereafter deposited in this new account, and from time to time as required, funds were transferred from the Independent's account to the Trust Fund account. Funds once deposited in the Trust Fund account could not be withdrawn except for purposes indicated in the Trust Agreement. According to Childs, since he became secretary of the Independent in 1940, the contributions of the Respondent and the income from the Trust Fund have been sufficient to pay sickness and death benefits, without having to transfer any funds from the Independent's account for that purpose. In January 1944, the Independent set up a Hospital and Surgical Benefit plan, which Independent members could take advantage of by paying 75 cents a month in addition to the fee of $1.00. This fee was also checked off by the Respondent. However, the Respondent did not contribute a like amount for this benefit. Concluding findings The record clearly shows that the Respondent initiated, formed, and sponsored CWA and at all times thereafter dominated and interfered with its adminis- tration and contributed financial and other support to it, and the undersigned so finds. Its constitution was prepared by a joint committee of delegates se- lected by the employees and the Respondent. The By-laws were prepared by the Respondent's attorney. Executives and supervisory employees were eligible for limited membership. Local Committees, Departmental Committees, and the General Committee were composed of members selected by the employees and an equal number selected by the Respondent, thereby placing CWA under the control of the Respondent. All elections of committeemen were held on the Respondent's time and premises. Dues were checked off by the Respondent and a like amount contributed by the Respondent. These funds were confided to the custody of two trustees, one of whom was the Treasurer of the Respondent. The constitution of CWA was signed by two of the Respondent's vice-presidents and the Respondent's attorney. All applications for membership in CWA had to be approved by the applicants' foreman or department head and the General Committee. The administration of CWA under the control of the General Committee , which was composed of delegates elected by the Departmental Corn- 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittees from among their own number and an equal number appointed by the Respondent. The decisions of the General Committee with respect to all con- troversies arising in connection with CWA were final. The president of the Respondent was honorary chairman of the General Committee. The Respondent provided CWA with office facilities on its premises free of charge. The Re- spondent makes no contention that CWA was not initiated, formed and sponsored by the Respondent, or that the Respondent did not thereafter dominate and interfere with the administration of CWA and contribute support thereto. As related above, on April 15, 1924, at a regular meeting of the General Com- mittee, presided over by Barnes, president of the Respondent, the name of CWA was changed to LRCA. The minutes of that meeting do not disclose the reason for making this change. The reference to the change is contained in the para- graph which reads as follows : On motion it is agreed that Constitution and By-laws be amended and name changed to, Louisville Railway Cooperative Association, as discussed and agreed upon .at this meeting. While President Miller was testifying, he was questioned in respect to the reason for changing the name of CWA to LRCA and whether it was done at the suggestion of the Respondent or the employees, also whether any other changes were made, at that time, in the Constitution and By-laws of CWA. Miller's reply was that he could not remember that far back. There is nothing in the record to indicate that any change of any kind was made, other than the name, when CWA became LRCA. The personnel of the Local, Departmental, and General Committees remained the same and LRCA continued to function in exactly the same manner as the old CWA. The Respondent continued the check-off system, without requiring new authorizations from LRCA members. It also continued to contribute a like amount which went into the general fund of LRCA. The Respondent also continued to provide office facilities on its premises, free of charge, for the use of LRCA. The Respondent and the Independent make no claim that there was any difference between CWA and LRCA, except in name. The second paragraph on page 4 of the Respondent's brief submitted to the Trial Examiner, reads as follows : In 1924, the name of the Association [CWA] was changed to the Louisville Railway Co-operative Association, [LRCA] but the purposes and mechanics of operation remained the same. The first paragraph on page 5 of the Independent's brief, filed with the Trial Examiner, reads in part as follows : In the interests of fairness-and of time-Independent concedes that Employer-employee organizations [CWA and LRCA] prior to 1935-did not afford respondent's employees adequate bargaining representation, as con- templated by the National Labor Relations Act. According to the credited and undenied testimony of Employee Noon, who has been employed by the Respondent in its accounting department for the past 30 years, he was a Departmental Committeeman and a member of the General Committee of LRCA prior to, and at the time of, the formation of the Independent. Beginning about January 1, 1937, the employees evinced some dissatisfaction with the method of handling grievances and wanted a change. Noon's testimony in this respect reads as follows : Q. Now, did the fact that the National Labor Relations Act was validated by the Supreme Court of the United States on April 12, 1937, have any bear- ing whatsoever on this change that was made thereon May 11? A. I don't think so, I couldn't say. I don't think it did. It didn't in my mind. THE LOUISVILLE RAILWAY COMPANY 719 Q. You would probably be in a position to know if any such think like that did exert any influence? A. Nothing prompted me, nothing of that kind prompted me to participate in this formation of this new Union, because I probably didn't understand it. r Q. What led up to this action at that particular time? Was it just a mere coincidence? A. The formation of the new Union? Q. Yes. A. No, the men were dissatisfied with the results they were getting from the grievances they would advance from time to time. It was too lengthy a process and we thought we would shorten it and get it to the management quicker and get better results. Q. How long had that dissatisfaction been in existence there? A. Well, from January of that year, I think the men starteca getting a little bit disgrunf gd about tl e-of course, we had a big flood he?b and every- 16dy was unnerved and we distributed some of the funds andfrom that time (a the men thought they would like to have a Ifttle closed contact, and sim- plify a lot of this lengthy proceeding about what they had to go through to •°O0 get a grievance corrected. Q. And that culminated in this act in May? A. That's right. Q. And the validation of the Act had nothing to do with it, so far as you know? A. I don't think so, no, sir. Q. That part was discussed in your presence? A. No, sir, not in my presence and I did not discuss it. Q. When this transition or this action was taken there on May 10 or 11, 1937, did the Respondent post any notice or send out any circular letters or in any way notify the employees that the Louisville Railway Cooperative Association had been disestablished or anything to that effect? A. I don't think so. Q. You didn't see anything. A. I didn't see anything. Q. Nothing was put on the bulletin board or so far as you-know, no letter was addressed to each individual employee? A. No, sir. Q. Nothing was published with respect to that? A. No. Q. And probably, would you have known about it if there had been such a notice posted on the Board. A. I think I would have. The transition of LRCA into the Independent was effected for the sole purpose, as testified to by Noon, of facilitating the handling of grievances. No effort was made to completely disestablish LRCA and form an entirely new organization that would meet the requirements of the Act. The Constitution and By-laws of LRCA were amended merely to change the name of the organization, sub- stitute the Union Relations Board and the Central Board for the LRCA Local Committees, Departmental Committees and the General Committee and to remove the Respondent's representatives from these Boards. From the inception of the Independent on May 11, 1937, to the first Independent election, which was held on July 1, 1937, the members of the LRCA Departmental Committees served as members of the Independent's Union Relations Board and the employee members 720 DECISIONS OF NATIONAL LABOR RELATION -S BOARD of the LRCA General Committee served as members of the Independent Central Board. It is significant that in the election on July 1, 1937, the very same em- ployees who had constituted the General Committee of LRCA were elected mem- bers of the General Board of the Independent.10 With respect to the operation of the Central Board, which was the governing factor of the Independent, the testimony of President Miller is enlightening, and reads as follows : The Central Board consisted of five employee members who brought before the company requests for wages or working conditions, and these five em- ployee members sat on one side of the table and five company executives sat on the other side of the table, to discuss various requests which were brought before the Union by the Union Relations Board, which consisted of fourteen members, employees, one representing each of the various depart- nlnts of the Company . . . In these fourteen departments, and they meet after 'lection and select five of their own number, a smaller committee, to meet with the company executives to d ncnss aP.i i^,£ brought before the monthly n,4eting of the Union Relations Board, consisting of fourteen employees. The Independent continued the check-off system and its contributions. ?s J°- bers of the Independent were not required to execute new authorizations for the cheek-off. It held all of its meetings and elections in the plant. It also occupied the office previously used by its predecessors, CWA and LRCA." The Independent continued the practice of its predecesors in electing one of its members to serve on the Respondent's Board of Directors. This director is chosen from the mem- bers of the Union Relations Board of the Independent, and receives the sane fees for this service as other Directors of the Respondent. The Respondent publishes and distributes, free of charge, to all of its employees, a pamphlet called "Trolley Topics", which contains a monthly financial statement of the 10 In respect to the personnel of the LRCA Committees and the Independent Boards, the following stip:iiation was entered into by the parties : It is stipulated by all parties that prior to the formation of the Independent, on May 11, 1937, the Louisville Railway Cooperative Association was managed by 24 departmental committeemen who selected from among their number, five representatives of the Association to meet with five members of the Respondent as a "General Com- mittee;" that the 24 departmental committeemen serving immediately prior to the formation of the Independent were: James Hughes, George Gutman, Leon Herr, James Noon, William Steinle, Eugene Hutchens, John Roser, E. E. Wilson, C. B. Mercer, Harry Jones, Fonzo Garter, William Schubnell, E. Patterson, G. M. Beard, E. P. Dennett, L. H. Chaney, J. F. Shekler, Peter Nortoff, C. Garrett, Hilton Gordon, John Kelsall, Logan Elliot, Aubrey Henderson. That the five employee members of the General Committee were : Milton Gordon, Eugene Hutchens, J. T. Noon, E. Patterson, E. E. Wilson. The five members repre- senting the Respondent were officials of the Respondent. These ten constituted the General Committee. It is further stipulated that between May 11, 1937, and the first election of the Independent in July of that year, twelve members of the former General Committee served as members of the newly formed Central Board until the first election in July 1937. It is further stipulated and agreed by the parties that pursuant to the election held in the plant in July 1937, the following non-supervisory employees of the Respondent were elected as members of the Union Relations Board of the Independent : J. T. Noon, A. C. Burns, Thomas Ellis, C. Garrett, Milton Gordon, J. R. Davis, Oscar Miller, James Hughes, H. H. Moore, It. Hutchens, Oldham Snow, John Lannon, Ben Potts, and William Conrad. Also as a result of this election, the following non-supervisory employees of the Respondent were elected members of the Central Board of the Independent : E. Patter- son, E. E. Wilson, E. Hutchens. Milton Gordon, and J. T. Noon. 1 1 According to Noon, the Independent discontinued holding its meetings in the plant and also the use of the office in the plant sometime in September or October, 1944. THE LOUISVILLE RAILWAY COMPANY 721 Independent. The Respondent did not inform its employees that the LRCA had been disestablished or that the Respondent had ceased to recognize it as a bar- gaining agent.12 The Independent was promoted by those who were committee- men of LRCA and they continued in office under the Independent. There was no well defined "wiping of the slate clean." It is a well settled matter of law that there must be a definite, clean line of cleavage between the two organizations in order for the latter to be free from the taint of employer domination found to be prevalent in the former. The establishment of the line of fracture is an affirmative obligation resting upon the employer.13 As was stated by the Court in the Western Union case:" . . . an unaffiliated union, known for long to be formed by the employer, carries ever an advantage which necessarily vitiates its standing as exclusive bargaining agent. It cannot remain such until measures are taken com- pletely to disabuse the employees of any belief that they will win the em- ployers approval if they remain in it, or incur his displeasure if they leave. In the American Smelting & Refining Company case," the Court said : It was the duty of the petitioner to disestablish the Plan which had pre- viously been dominated by it and which it had recognized as a bargaining unit. This was "the only effective way of wiping the slate clean and afford- ing the employees an opportunity to start afresh in organizing for the adjustment of their relations with the employer." (Cases cited) During the period in which the Respondent had done nothing to reestablish a condition of freedom, the Independent succeeded the illegal LRCA and CWA, with strong indication of connection between all three. In these circumstances the mass of employees, conditioned by approximately 17 years of denial of their rights to self-organization, could reasonably have assumed that the Respondent formed the Independent as it had formed LRCA and CWA. A habit firmly moulded by 17 years of domination may well have dictated the employees' choice of the Independent in the election." Such duplication of personnel as related above, coupled with substantial continuity of existence is indicative of con- tinued domination by the employer." The effects of company-dominated organ- izations upon employees can only be dispelled by the creation of conditions in which a free choice can be exercised, and when an ostensibly new organization hL. has been created there must be a "complete break between the organization and disestablishment of the illegal ones," and the employees must be "effectively and unmistakably informed of such action." =s "The Respondent attached to its answer to the complaint, copies of two notices that it had posted in the plant in April 1937, one to the effect that its employees were not com- pelled to join any organization to hold their jobs, and the other an excerpt from the Act containing Sections 7, 8, and 12. Neither of these notices makes any reference to the formation of a new organization. " Matter of Roebling Employees Association, Inc. v. N. L. R. B., 120 F. (2d) 289 (C. C. A. 3), and cases cited therein. "Matter of Western Union Telegraph Company v. N. L. R. B., 113 F. ( 2d) 992 (C. C. A. 2). 15 Matter of American Smelting & Refining Company v. N. L. R. B., 126 F. (2d) 680 (C. C. A. 8). "3 N. L. R. B. v. Pacific Greyhound Lines, Inc., 303 U. S. 272. 17 International Association of Machinists v. N. L. R. B., 311 U. S. 72, aff'g. 110 F. (2d) 29 (App . D. C.), enforcing Matter of Serrick Corporation and International Union, United Automobile Workers of America, Local 459, 8 N. L. R. B. 621, rehearing denied 311 U. S. 729. 13 Magnolia Petroleum Co. v. N. L. R. B., 115 F. (2d) 1007 (C. C. A. 10), thus Courts have recognized the necessity of "wiping the slate clean." (N. L. R. B. v. Newport News Ship- 701592-47-vol. 69-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the Respondent may not be held accountable for unfair labor practices engaged in prior to July 5, 1935, the effective date of the Act, the foregoing facts relating to CWA and LRCA serve as a background against which the acts of the Respondent subsequent to the passage of the Act may be appraised. The undersigned finds, from the entire record in the case, that the Independent was a successor to LRCA and CWA, and that the Respondent has dominated and interfered with the formation and administration of CWA, LRCA, and the In- dependent and has contributed financial and other support thereto, and that by such domination, interference, and support, the Respondent interfered with, restrained, and coerced its employees in the exercise of the fights guaranteed in Section 7 of the Act. The undersigned further finds that the agreements en- tered into between the Respondent and the Independent, particularly the con- tract dated December 31, 1944, and the supplemental agreement dated June 1, 1945, have been instrumental in depriving the Respondent's employees of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharge of James R. Gowen on August 14, 1944 Gowen was first employed by the Respondent in 1926 as a street car operator. He resigned in 1929 and was reemployed by the Respondent in 1937, from which time his employment was continuous until his discharge on August 14, 1944. He was in the employ of the Respondent approximately 10 years as an operator. He was a member of the Independent. In the spring of 1944 there was some discussion among the Respondent's employees concerning the advisability of hav- ing an outside union come into the plant and Gowen was requested by them to investigate the matter. On August 8, 1944, Gowen went to the local office of the Kentucky Federation of Labor and consulted Weiler, the secretary of that organ- ization. He went back to see Weiler again the next day and joined the Amalga- mated. Weiler supplied him with application cards for membership in the Amalgamated, which he immediately began to distribute among the employees at the Respondent's various car barns. At that time, Gowen was working out of the 4th and Avery Streets car barn, under Foreman Joe Newton and Assistant Foreman Leo Gray. On August 9, Gowen went to his station about 20 minutes before going out on his run and spent the spare time in soliciting membership in the Amalgamated among the off-duty operators in the recreation room," which is adjacent to the foreman's office. With the permission of Foreman Newton, Gowen did not work the next day, August 10. The morning of that day, Gowen went to the recreation room at the Respondent's car barn at 29th and Broadway Streets and continued his solicitation for membership in the Amalgamated. C. H. Bryant was foreman and John J. Carter was assistant foreman at that station. While there, Gowen was told by either Bryant or Carter 20 that Superintendent Powell had just called up and said that if Gowen had any notices to post on the bulletin board he must get permission from the main office before posting them. Gowen replied that he had no bills to post, and requested that Superintendent Powell be informed that they were going to organize the Amalgamated in the plant. Gowen building and Dry Dock Co., 308 U. S. 241) ; "Clearing of docks" (Westinghouse Electric d Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2)) ; "absolute and public cleavage be- tween the old and the new." (Western Union Telegraph Co. v. N. L. R. B., 113 F. (2d) 992 (C. C. A. 2)) ; clearing the field "of the original illegal growth", thus rendering it "suitable for sowing the seeds of an undominated body" (E. I. Dupont de Nemours & Co. v. N. L. it, B., 116 F. (2d) 388 (C. C. A. 4)); washing out "the virus of control" (N. L. R. B. v. H. E. Fletcher Co., 108 F. (2d) 459 (C. C. A. 1). 19 The Respondent maintained recreation rooms at its various car barns for the use of operators. 2° Gowen testified that he could not recall whether it was Bryant or Carter who spoke to him, as he did not know them very well apart. THE LOUISVILLE RAILWAY COMPANY 723 then proceeded to visit the Respondent's car barns at 25th and Market Streets, 18th and Walnut Streets and 4th and Avery Streets, where he continued to dis- tribute application cards and solicit members for the Amalgamated among the Respondent's operators. The next morning, August 11, Gowen reported at his station, 4th and Avery Streets, to begin work. Upon arrival there, he was informed by Assistant Fore- man Gray not to take his run, but to report to the main office at 9: 00 a. in. Gowen then left the car barn and went out to the Wallace Bus Loop, which is the termi- nal for several of the Respondent's bus routes and where the operators have a short wait before the return runs. Upon arriving there Gowen continued his organizational work for the Amalgamated among the operators. Gowen then proceeded to the main office of the Respondent, arriving there a few minutes before 9: 00 a. in. He first saw Albert E. Nelson, assistant superintendent of transportation. Nelson said to him, "Gowen, I understand that you have been riding the front end of the cars talking to operators." Gowen replied, " I ride a little out there once in a while, just like all the other men do." Nelson said, "Well, you know its against the rules?" Gowen replied in the affirmative and asked Nelson to tell him what he was talking to the operators about. Nelson declined to answer and went out and came back with Superintendent Powell. The latter reiterated what Nelson had said, and informed Gowen that he was suspended for 3 days, beginning at once, and to report back to him on August 14. Gowen then asked Powell to inform him what he was accused of saying to the operators and who the operators were. Powell refused to tell him. Gowen did not cease his efforts to organize the Respondent's operators for the Amalgamated. During the period of his suspension, which was August 11, 12, and 13, he continued to visit the Respondent's car barns and sign up the opera- tors. He rode on the Respondent's street cars and busses, but he was very careful not to talk to the operators while they were on duty, as he was very desirous of continuing his employment with the Respondent. At 9 a. n_. on August 14, Gowen reported to the main office for duty. Assist- ant Superintendent Nelson met him and said to him, "We understand, Gowen, that you are still riding in the front of these cars and talking to these operators." Gowen replied, "No, sir, I haven't since you had me down here the 11th." Nelson said, "Well, we understand you are." Gowen denied it again. Superintendent Powell then came in and repeated what Nelson had said. Gowen again denied it, and requested to be informed as to the source of such information and what he was accused of having said to the operators. Powell refused to inform him. Powell then said, "Mr. Gowen, you have got a barber shop, haven't you?" Gowen replied in the affirmative. Powell replied, "If you had some one work- ing for you that was doing something that hurt your business, you would get rid of him, wouldn't you?" Thereupon Powell discharged Gowen. Gowen continued to solicit the operators to join the Amalgamated. After a week or 10 days, Gowen requested operator L. L. Dukes, who was a member of the Union Relations Board of the Independent, to assist him in getting reinstated. Duke declined and said that Gowen belonged to the Amalgamated.' Concluding findings Superintendent Powell testified that Gowen was discharged for the sole rea- son that he violated the Respondent's rules against riding on the front end of 21 The foregoing findings are based upon the credited testimony of 9oweu. Dukes ad- mitted that he discussed Gowen's discharge with him, but denied that Gowen asked him to take it up through the medium of the Independent. The undersigned does not credit his denial. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cars and busses and talking to the operators during the period of his suspension on August 11, 12 and 13. The undersigned finds no merit in this contention. Gowen denied that he had violated this rule during the period of his suspension and requested proof, which the Respondent refused to give him. The record shows and the undersigned finds that the Respondent knew, at the time it suspended Gowen, that he was actively engaged in organizing the Amalgamated. Operator Joe Stiff testified that on August 10, Gowen solicited him to join the Amalgamated and he reported it to Foreman Newton that night. The record also shows and the undersigned finds, that Powell discharged Gowen upon the basis of reports that he is alleged to have received from certain supervisors, without investigating their truth or falsity, and that he refused to give Gowen an opportunity to be confronted by his accusers and defend himself, although he had 10 years of honest and faithful service with the Respondent. Prior to the discharge of Gowen no other employee had been discharged by the Respondent for similar reasons. Assistant Superintendent R. E. Nelson testified that he did not know of a single case, other than Gowen's, where the Respondent had discharged an employee for the same alleged reasons that it discharged Gowen. It is a reasonable presumption that had there been other instances, the Respondent would have disclosed them. . From the testimony of several supervisors with long service records with the Respondent, it appears, and the undersigned finds, that the Respondent was more concerned with dis- couraging conversation by the operators, who were operating the street cars or busses thereby distracting their attention from their work, than by employees who were riding as passengers. Gowen had never been accused of talking while operating a bus or street car. Also, according to the testimony of several supervisors, it was their practice and policy to speak to the operators and caution them, whenever they were found violating the no-talking rule, and that they seldom reported them to higher authority. Supervisor W. B. Beatty testified that if he should discover an operator, while operating a street car or bus, talk- ing to another operator who was riding as a passenger, he would report the operator who was on duty, and not the operator who was riding as a passenger. Supervisor George Keen with over 10 years of service with the Respondent, testified that be could not remember a single operator that he had reported for the violation of the no-talking rule. Supervisors Bale and Warren testified to the same effect. Dukes testified that he had been in the employ of the Re- spondent nearly 20 years as an operator and that he could not recall any case, other than Gowen's, where an employee had been discharged for- riding on the front end of a street car. Supervisor Gustave Woerter testified that about 11 a. m. on August 11 he was on a street car that passed another street car which was being operated by N. K. Burres, and that as the cars passed each other, he saw Gowen standing near Burres and they were talking to each other ; that he saw their lips moving and they were making gestures with their hands. Burres testified that Gowen was riding on his car on August 11 and was standing near him when his car passed the car on which Woerter was riding, and that he saw Woerter before the cars passed each other. He denied that he was talking to Gowen or making any gestures when the cars passed. Gowen testified that he left the main office after his discharge on the morning of August 11, and walked home, where he remained until 2 or 3 p. in. Gowen denied that he had had any conversation with Burres that day. In view of the conflicting testimony of Woerter and Burres, with respect to this incident, the undersigned credits Gowen's denial.. The record is clear and the undersigned finds that it was the usual custom and practice for off-duty operators to speak to the operators when boarding a street car or bus, and that such practice was condoned by the supervisors. It is THE LOUISVILLE RAILWAY COMPANY 725 significant that as soon as Gowen became active in the Amalgamated, the Re- spondent, on July 10, 1944, posted a notice on its bulletin board to the effect that off-duty operators should not ride on the front platform. Nothing was said in this notice about speaking to the operator' The undersigned is convinced and finds that any conversations that Gowen may have had with the operators, prior to his suspension or discharge, would not have led to his suspension or discharge had he not been engaged in union activity, and that the Respondent had no intention of reinstating Gowen after his suspension on August 11, 1944. In summary, the undersigned concludes and finds from the entire record in the case that the Respondent suspended James R. Gowen on August 11, 1944, and discharged him on August 14, 1944, and has since refused to reinstate him not for the reasons alleged by the Respondent, but because he joined and assisted the Amalgamated and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection. Thereby the Re- spondent discriminated in regard to his hire and tenure of employment, dis- couraged membership in the Amalgamated, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Other acts of interference, restraint, and coercion According to the credited testimony of President Miller, in April 1940, during the organizational campaign of the Transport Workers among the Respondent's employees, the Respondent decided to hold an election among its employees to determine whether they desired the Independnt or the Transport Workers to represent them for the purposes of collective bargaining. One of the reasons assigned by the Respondent for holding this election was that, at that time, the Respondent was applying for a city franchise and it was given to understand that if the matter of collective bargaining could be settled it would facilitate the granting of this franchise by the city authorities. The election was held on April 16, 1940, on the Respondent's time and premises. The Respondent selected some 16 local citizens to assist in the election. The ballot boxes and ballots were supplied by the Respondent. Only the Respondent, members of the Union Relations Board of the Independent and the Citizens Committee were aware that such an election would be held. At 8 a. in. on the morning of the election the Respondent posted the following notice on its bulletin boards at the eight polling places : NOTICE At the request of the Union of Louisville Railway Employees sa we have agreed that an election may be held under the auspices of an IMPARTIAL CITIZENS COMMITTEE rs The full text of this notice reads as follows : Monday, July 10, 1944. Operators-All Cars and Bus Lines : Safety Rule Operators or conductors off duty when riding on the front platform of cars or buses, take the attention of the operator in charge off his work and causes accidents or poor operation, therefore the Rule that, Conductors and operators off duty when riding on ears or buses must not ride on the front platform. This is a safety measure and must be obeyed. G. B. POWELL, Supt. Transportation. Approved : F. H. MILLER President & Gen. Mgr. =This statement is misleading . The Union Relations Board of the Independent made the request. The other members of the Independent were not consulted , and knew nothing about it. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to determine whether or not our employees wish to be represented in their dealings with us by the UNION OF LOUISVILLE RAILWAY EMPLOYEES or by the C. I. O. The ballot will be secret under rules adopted by the Citizens Committee. All employees who are not officers or department heads may vote. We desire you to state what bargaining agency you prefer and URGE EVERY ELIGIBLE EMPLOYEE TO VOTE. F. H. MILLIM, President, The Louisville Railway Co. Another notice was also posted by the Respondent at the various polls, which stated, in substance, that the election was being held by the Citizens Committee; voting would take place between 9 a. in. and noon that day; and that all em- ployees, except officers and department heads, were eligible to vote. The election resulted in a 3 to 1 victory for the Independent. The election came as a complete surprise to the Respondent's employees who were eligible to vote, the Transport Workers, and the Amalgamated. They knew nothing about it until the notices were posted at 8 a. m. on the day of the election. The employees were given no opportunity to vote for "neither" of the unions. The ballots made no provision for that. The eligible voters were not confined to members of the Independent. The Respondent's notice urged the eligible employees to vote. The Board and the Courts have consistently held that an election conducted by an employer, In the plant, during customary working hours with supervisory officials present, and without the consent of all the labor organizations, precludes the casting of ballots which register the free and independent expression of choice by the employees, and constitutes a violation of Section 8 (1) of the Act 24 According to the testimony of A. B. Claywell, a former employee of the Re- spondent, which is credited by the undersigned, at the time that he was hired by the Respondent in the fall of 1944, he was interviewed by G. B. Powell, the Respondent's superintendent of transportation ; that during that interview Powell told him about the Independent and the many benefits it conferred upon its members, and he advised Claywell to join it. Powell also told Claywell that some outside unions were endeavoring to organize the Respondent's employees, and advised him not to have anything to do with them, as the Independent could do more for the employees than any outside union 26 Claywell further testified that he was assigned to work at the Respondent's car barn at 29th and Broadway under Foreman C. H. Bryant, and that when he began working, Bryant told him about the Independent. Claywell's testi- mony in this respect, which is credited by the undersigned, reads as follows : Mr. Bryant was telling me about the setup they, had down there, about similar conversations that Mr. Powell had, about what the union stood for 24 See Okey Hosiery Co., Inc., 22 N. L. R. B. 792, 797; Charles C. Hobart, 25 N. L. It. B. 727, enf'd 8 L. R. It. 577 (C. C: A. 6), decided May 8, 1941, cert. den. 314 U. S. 679; American Steel Scraper Co., 29 N. L. R. B. 939, 945; Atlas Press Co., 32 N. L. R. B. 863, enf'd 11 L. It. It. 519 (C. C. A. 6), decided December 2, 1942 ; Shell Oil Co ., Inc., 34 N. L. It. B. 866, enf'g 128 F. (2d) 206 (C. C. A. 5) ; Lebanon News Publishing Co., 37 N. L. It. B. 649, enf'd 129 F. (2d) 325 (C. C. A. 3) ; A P Parts Corp., 40 N. L. It. B. 301 Red Diamond Mining Co., Inc., 44 N. L. R. B. 1234, enf'd 135 F. (2d) 13 (C. C. A. 5) Southern Wood Preserving Co., 45 N. L. R. B. 230, enf'd 135 F . ( 2d) 606 ( C. C. A. 5). 25 Powell admitted that he told Claywell about the Independent, but denied that he advised him to join it or told him that the Independent could do more for the employees than the other unions and not to have anything to do with them . The undersigned was not impressed with the testimony of Powell in regard to this incident, and does not credit his denial. THE LOUISVILLE RAILWAY COMPANY 727 and the benefits that the men had gotten out of it, and so forth and so on, and he said there was other unions trying to organize the plant and he advised me not to have anything to do with them. Also according to Claywell, in January 1945, during a conversation that he had with Foreman Bryant concerning the discharge of employee Wheeler by the Respondent, Bryant told him that Wheeler had been discharged for union activity. Bryant further told Claywell that if he wanted to work there, not to have any- thing to do with outside unions, and said to him, "If you do, you see what hap- pened to this man l Wheeler] out there.f 26 According to the credible and undenied testimony of former employee Charles S. Hill," at the time of his engagement by the Respondent in September 1942, Superintendent Powell talked to him about the Independent and told him that it was a "nice setup" and a good thing for the employees. Hill also testi- fied that about a year later, while the Amalgamated and the Transport Workers were endeavoring to organize the Respondent's employees, Foreman Bryant told hint that he did not want to see him get mixed up with outside unions, and to leave them alone. Hill further testified that soon after his discharge in March 1945, Foreman Bryant said to him, "Hill, I am very sorry it happened. You were as good a man as I ever had but that's what these unions will do for you. They will get you mixed up." 28 The undersigned concludes and finds from the entire record in the case, that by the holding of a secret election in the plant on April 16, 1940, and by the foregoing acts and statements of superintendent Powell and Foreman Bryant, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Any contention of the Respondent that, because of the dismissal by the Board of the foregoing cases, the Board is now without jurisdiction to make any findings of unfair labor practices on the part of the Respondent is without merit. The undersigned is of the opinion and finds that the dismissal of these cases is not res judicata of the question of the applicability of the Act to the Respond- ent. However, the undersigned finds that as to the remedy, it will best effectuate the policies of the Act if it is recommended that the Respondent reimburse its employees for clues checked off from their wages on behalf of the Independ- ent and make whole the discriminatorily discharged employee for any loss of earnings on his part, only from the period since August 21, 1945, the date on which the complaint herein was issued, since upon the issuance of the com- plaint the Respondent was put on notice that the Board's prior administrative determinations were no longer in effect. "' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, 20 When questioned as to whether he made the statements attributed to him by Claywell, Bryant replied, No, I don't think I did. I don't see why I would." Bryant also denied that he told Claywell that Wheeler had been discharged for union activity, or that if he wanted to work for the Respondent he should have nothing to do with outside unions. The undersigned (lid not consider Bryant a credible witness, and does not credit his denial. 26 Hill was employed by the Respondent from September 1942 to March 1945. z' Bryant denied having made these statements to Hill. However, the undersigned was not favorably impressed with the testimony of Bryant, and does not credit his denial. On the other hand the undersigned found Hill to be a forthright and credible witness, and accepts his testimony. ze See N. L. R. B. v. Baltimore Transit Co., 140 F. (2d) 51 (C. C. A. 4), enf'g as modified 47 N. L. R. B. 109, cert. den. 321 U. S. 795. 1 ( 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the under- signed finds will effectuate the policies of the Act. It has been found that the Respondent dominated and interfered with the formation and administration of, and contributed support to, CWA, LRCA, and the Independent. Since CWA and LRCA have ceased to function under the names by which they were originally known, and there appears to be no likelihood of their being revived under those names, their disestablishment as such will not be recommended. The undersigned finds that the effects and consequences of such domination, interference, and support render the Independent incapable of serving the Respondent's employees as a bona fide collective bargaining agency, and the recognition of the Independent as the bargaining representative of any of the Respondent's employees constitutes a continuing obstacle to the free exercise by the employees of the right to self-organization and to bargain collectively through representatives of their own choosing. It will therefore be recommended that the Respondent withdraw all recognition from the Independent as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish it as such representative. It has also been found that the agreements entered into between the Respondent and the Independent have been a means whereby the Respondent has utilized an employer-dominated labor organization to frustrate self-organization and defeat genuine collective bargaining by its employees. In these circumstances any con- tinuation, renewal, or modification of the current agreements between the Re- spondent and the Independent would perpetuate the conditions which have deprived its employees of the rights guaranteed by the Act and would render in- effectual other portions of these remedial recommendations. It will therefore be recommended that the Respondent cease and desist from giving effect to any con- tract it may have with the Independent, particularly the contract dated December 31, 1944, and the supplemental agreement dated June 1, 1945, and to any extension, renewal, or modification thereof, or supplement. thereof. Nothing in these recom- mendations shall be taken, however, to require the Respondent to vary those wage, hour, seniority, or other substantive features of its relations with the employees themselves, which the Respondent may have established in the performance of its contract with the Independent, as extended, renewed, modified, supplemented, or superseded." It will be further recommended that the Respondent, as a means of restoring the status quo and remedying the unfair labor practices found, reimburse each employee for the amount of fees and dues which the Respondent has checked off his wages and paid over to the Independent since August 21, 1945, the date on which the complaint herein was issued. It has been found that the Respondent discriminatorily discharged James R. Gowen on August 14, 1944. It will therefore be recommended that the Re- 30 See National Licorice Co. v. N. L. R. B., 309 U. S. 350, affirming as modified 104 F. (2d) 655 (C. C. A. 2), enf'g as modiSed 7 N. L. R. B. 537; N. L. R. B. v. The Greenebaum Tanning Co., 110 F. (2d) 984 (C. C. A. 7), enf'g as modified 11 N. L. R. B. 300, cert. den. 311 U. S. 662. THE LOUISVILLE RAILWAY COMPANY 729 spondent offer to Gowen immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. It will be further recommended that the Respondent make whole Gowen for any loss of pay he may have suffered by reason of the Re- spondent's 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 period from August 21, 1945, the date on which the complaint herein was issued, to the date of the Respondent's offer of reinstatement, less his net earnings" during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. The Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor ; Or- ganizing Committee of the Louisville Railway Company of the Transport Workers of America (CIO) ; and Union of Louisville Railway Employees, un- affiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Cooperative Welfare Association, and Louisville Railway Cooperative Asso- ciation, both unaffiliated, were labor organizations within the meaning of Section 2 (5) of the Act. 3. By dominating and interfering with the administration of, and contributing support to, LRCA subsequent to July 5, 1935, and by dominating and interfering with the formation of the Independent in 1937 and its administration there- after and contributing support thereto, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of James R. Gowen, thereby discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, and Organizing Committee of the Louisville Railway of the Transport Workers of America (CIO), the Respondent has en- gaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. 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 above findings of fact and conclusions of law, the under- signed recommends that the Respondent, the Louisville Railway Company, Louisville, Kentucky, its officers, agents, successors, and assigns shall: 31 By net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for 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 U. S. 7. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) In any manner dominating or interfering with the administration of, or contributing financial or other support to Union of Louisville Railway Em- ployees, or any other labor organization of its employees ; (b) Recognizing Cooperative Welfare Association, Louisville Railway Coopera- tive Association, or Union of Louisville Railway Employees as the representative of any of its employees for the purpose of dealing with the Respondent concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment : (c) Giving effect to its contract of December 31, 1944, and supplemental agree- ment dated June 1, 1945, with Union of Louisville Railway Employees, or to any extension, renewal, modification, or supplement thereto ; or to any other agree- ment with Union of Louisville Railway Employees which may be in effect now or in 'the future ; (d) Discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, or Organizing Committee of the Louisville Railway Company of the Transport Workers of America (CIO), or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of their employment ; (e) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, or Organizing Committee of the Louisville Railway Company of the Transport Workers of America (CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes 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 undersigned finds will effectuate the policies of the Act: (a) Withdraw all recognition from and completely disestablish Union of Louis- ville Railway Employees as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment ; (b) Reimburse all of its employees, whose dues in the Union of Louisville Railway Employees were checked off, for the amounts thus deducted from their wages since August 21, 1945, the date on which the complaint herein was issued ; (c) Offer James R. Gowen immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (d) Make whole James R. Gowen for any loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from August 21, 1945, to the date of the Respondent's offer of reinstatement, less his net earnings ' during said period ; (e) Post at its main office and at all of its car barns in Louisville, Kentucky, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon the receipt thereof, and maintained by it for sixty (60) 32 See footnote 31, supra. THE LOUISVILLE RAILWAY COMPANY 731 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (f) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may, within fifteen (15) 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, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate 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. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire per- mission to argue orally before the Board, request therefor must be made in writ- ing to the Board within ten (10) days from the date of the order transferring the case to the Board. W. P. WEBB, Trial Examiner. Dated December 6, 1945. "APPENDIX All NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We hereby disestablish Union of Louisville Railway Employees as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. JAMES R. GOWEN 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Amalgamated Association of Street, Electric Railway and Motor. Coach Employees of America, affiliated with the American Federation of Labor, and Organizing Committee of the Louisville Railway Company of the Transport Workers of America (CIO) or-any other labor organization, to bargain col- lectively 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. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE LomsvILLE RAILWAY COMPANY Employer Dated ---------------------- By --------------------- ----------- (Representative) (Title) Note : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.