Union Bus Terminal of Dallas, Inc.

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarter." In accordance with the TFooltoorth decision, it will he recouunended that the Respondent, upon reasonable request, make available to She Board and its agents all records pertinent to analysis of the amount due as hack pay The unfair labor practices found reveal on the part of the Respondent such fundamental antipathy to the objectives of the Act as to justify an ucference that the commission of other unfair labor practices may be anticip,iled The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat It will be, recom- mended, therefore, that Respondent cease and desist {rem in any manner interfering with, restraining, and coercing its employees in the everc•ise of the rights guaranteed by the Act. Upon the basis of the foregoing findings of tact and upon the entire record in the case, the undersigned makes the following CONCLUSIONS on' LAw 1. International Union of Mine, Mill & Smelter Workers is a labor organiz ation within the meaning of Section 2 (5) of the Act 2. All production and maintenance employees at the Respondent 's sawmill, planer mill, and yard at Savannah , Georgia, excluding office and clerical employees , watchmen , and supervisors , constitute a unit appropn auto for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3 International Union of Mine , Mill & Smelter Workers was on April 14, 1050, and at all times since then has been the exclusive representative of all encployoes in said unit for the purposes of collective bargaining within the nie.uung of Sec- tion 9 (a) of the Act. 4. By failing and refusing to bargain collectively with the Smelter Workers as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of encployment of doe Brown, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By such discrimination and by interfcring' with, restrai n ing , and coercing 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 tile meaning of Section 8 ( a) (1) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. [Recommended Order omitted from publication in this volume i5 F. W Woolworth Company, 90 NLRB 289. UNION Bus TERMINAL OF DALLAS, INC. and TRANSPORT WORKERS UNION or AMERICA, CIO. Case No. 16-CA--328. November 30, 1951 Decision and Order On February 21, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding finding that 97 NLRB No. 47. UNION BUS TERMINAL OF DALLAS, INC. 207 the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after the Respondent filed its exceptions to the Intermediate Report and supporting brief.' The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and hereby adopts the findings, •conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with this decision. 1. At the hearing, the Respondent moved to dismiss the complaint insofar as it alleged that the Respondent had refused to bargain with the Union. As grounds for its motion, the Respondent argued that the Union was not the exclusive bargaining representative of the Respondent's employees in the appropriate unit, because the Union was certified by the Board at a time when its parent federation, the CIO, was not in compliance with Section 9 (h) of the Act. The Trial Examiner, relying upon the Board's decision that parent federations did not have to comply with Section 9 (h),2 denied the motion. In view of the recent Highland Park case 3 and the recent amendents to the Act, the Trial Examiner's rulings must be reversed. The CIO, with which the Union is, and was at all material times herein, affiliated, did not comply with the requirements of Section 9 (h) until December 22, 1949. Before that date, the Board neverthe- less processed the Union's petition and certified the Union as the majority representative of the Respondent's employees 4 However, in the Highland Park case, decided May 14, 1951, the Supreme Court of the United States held, adversely to the Board, that Section 9 (h) of the Act requires compliance by the parent federations of affiliated Unions. Thus, it now appears that, as the CIO was not in compliance at any time during the pendency of the representation proceeding, the Board was without power to conduct the investigation, to hold the election, or to issue its certification therein. The entire representation proceeding, including the election and the certificate, was therefore invalid. I The request of the Respondent for oral argument is hereby denied as the record , includ- ing the exceptions and briefs , adequately present the issues and positions of the parties. 2 Northern Virginia Broadcasters , Inc, 75 NLRB 11 (1947). 3 N. L. R. B. v. Highland Park Manufacturing Co , 341 U S 322 ; 71 S. Ct. 758. 4 Case No. 16-RC-419, not reported in bound volumes of Board decisions. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 18,5 recently enacted as an amendment to the Act, provides in the proviso thereto that no liability can be imposed for failure to honor an election or certificate before October 22, 1951, the effective date of Section 18, where, as here, the election and certificate were invalid because of the failure of the CIO to comply with Section 9 (h) before December 22, 1949. Under the circumstances of this case, we find that the Respondent's actions constituted such an excused "failure to honor" within the meaning of Section 18. We shall therefore dismiss the 8 (a) (5) allegation in the complaint .6 2. In view of our finding that the Respondent did not unlawfully refuse to bargain with the Union, the strike of December 24, 1949, was an economic strike and not an unfair labor practice strike as found by the Trial Examiner. The strikers were therefore entitled to rein- statement upon their unconditional offer to return to work only if their jobs had not been filled by permanent replacements at the date of the offer to return.7 The record shows that the jobs of all the strikers had been filled by replacements on January 10, 1950, the date of the strikers' unconditional application for reinstatement. There is no evidence to show that such replacements were not permanent. Accordiligly, we find that the Respondent did not refuse to reinstate the strikers in violation of Section 8 (a) (3). 3. The Respondent's notice of December 26, 1949, to each of the strikers is substantially the same as the notice considered by the Board in the Texas Company case." For the reasons stated in that decision, we find that the December 26 notice did not violate Section 8 (a) (3) of the Act. ' We have found that the Respondent did not commit any unfair labor practices in violation of Section (a) (1), (3), or (5) of the Act. As these are the only unfair labor practice allegations contained in the complaint, we shall dismiss the complaint in its entirety.' s Section 18 provides • "No petition entertained , no investigation made , no election held, and no certification issued by the National Labor Relations Board, under any of the provi- sions of Section 9 of the National Labor Relations Act, as amended , shall be invalid by reason of the failure of the Congress of Industrial Organizations to have complied with the requirements of Section 9 (f), (g), or (h) of the aforesaid act prior to December 22, 1949, or by reason of the failure of the American Federation of Labor to have complied with the provisions of Section 9 (f), (g), or ( h) of the aforesaid act prior to November 7, 1947: Provided , That no liability shall be imposed under any provision of this act upon any per- son for failure to honor any election or certificate referred to above prior to the effective date of this amendment : Provided , however , That this proviso shall not have the effect of setting aside or in any way affecting judgments or decrees heretofore entered under Section 10 (e) or ( f) and which have become final " Public Law 189, 82nd Cong , Chapt 534, 1st Sess , approved October 22, 1951, e Cf Reynolds cC Manley Lumber Company, Inc, 97 NLRB 188. Greenville Cotton Oil Company, 92 NLRB 1033 s 93 NLRB 1358 , cf. United States Cold Storage Corporation , 96 NLRB 1108 UNION BUS TERMINAL OF DALLAS, INC. Order 209 IT IS THEREFORE ORDERED that the complaint in the above-entitled decision be, and it hereby is, dismissed. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A Joe B. Autrey Joyce Griffin James H. Rains Annie May Brice Alphonzo Hubert C. L. Reed, Jr. Roy T. Brittain H. W. Hubley D. M. Richman William Brooks A. J. Johnson Joe Robertson David A. Brown J. T. Jones Coon Smith Zelvie Campbell Billy E. Lundy Odie Sorrells Calvin Conner Mrs. Billy E. Lundy Rufus Walker Namon Dale Billy J. McGlaun Marlow Watson Frank Dewberry W. R. McWhorter J. A. Winters, Jr. John Glenn Ella B. Meeks Fred Goss Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Transport Workers Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called General Counsel and the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated December 12, 1950, against Union Bus Terminal of Dallas, Inc., Dallas, Texas, 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 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondent and the Union. With respect to unfair labor practices the complaint alleges, in substance, that the Respondent: (1) Since November 9, 1949, has refused to bargain col- lectively with the Union as the exclusive representative of its employees in an appropriate unit; (2) caused by its refusal to bargain a strike among its em- ployees on December 24, 1949; (3) discriminatorily discharged on December 27 and refused and failed to reinstate 30 named striking employees' on and after ' Joe B. Autrey Joyce Griffin James H Rains Annie May Brice Alphonzo Hubert C. L. Reed, Jr. Roy T. Brittain H. W Hubley D. M Richman William Brooks A. J. Johnson Joe Robertson David A. Brown J T. Jones Coon Smith Zelvie Campbell Billy E Lundy Odie Sorrells Calvin Conner Mrs. Billy E. Lundy Rufus Walker Namon Dale Billy J. McGlaun Marlow Watson Frank Dewberry W. R. McWhorter J. A. Winters, Jr John Glenn Ella B Meeks Fred Goss 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 10, 1950, when they applied for reinstatement; and (4) by these acts has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. On December 26, 1950, the Respondent filed its answer, in which it denied commission of the alleged unfair labor practices. Pursuant to notice a hearing was held in Dallas, Texas, on January 3, 4, 5, and 6, 1951, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. Following the receipt of evidence, motions of the Respon- dent were denied to dismiss the complaint on grounds of (1) noncompliance of the CIO, (2) laches, and (3) "the way in which" the Regional Office "handled the case " All counsel waived the opportunity to argue orally. Briefs have been received from the Respondent and the Union. Upon the entire record in the case and from his observation of the witnesses; the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Union Bus Terminal of Dallas, Inc., is a Delaware corporation, having its principal office and place of business in Dallas, Texas, where it is engaged in the operation of the Union Bus Terminal, for the joint use of a number of bus lines, including Transcontinental Bus Systems, Inc., Continental Bus System, Inc.,. Texas Motor Coaches, Texas Electric Bus Lines, and Central Bus Lines. The Respondent sells tickets to and handles baggage for passengers traveling in both interstate and intrastate commerce. Minimum sales annually amount to more than $250,000, and a minimum of 100,000 passengers annually pass through this terminal. It is estimated that between 25 and 35 percent of such passengers travel across State lines. The Respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED - Transport Workers Union of America, CIO, is a labor organization admit- ting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues At a Board-conducted election held November 9, 1949, the Union received the majority of the ballots cast. On November 11 A. R. Hardesty, an official of the Union, telephoned to President A. J. Emory of the Respondent and asked that a date be set for an immediate negotiating meeting. Emory replied that he pre- ferred not to set a date until notice of certification had been received from the Board. The next day Hardesty sent to Emory, accompanied by a proposed agreement, the following letter : Pursuant to our telephone conversation yesterday, I am enclosing a copy of our proposed working agreement which has been approved by the member- ship. As you suggested yesterday, we will expect to start negotiations immediately upon Board certification. The Respondent received notice of the Union's certification on November 21_ The parties then agreed to meet on November 25. Negotiating meetings were held on November 25, December 5, 12, 13, 14, 15, and 16. As to events up to the close of the meeting on December 16 there is little dispute in testimony on UNION BUS TERMINAL OF DALLAS, INC. 211 major matters. It is the claim of General Counsel and the Union, however, and sharply denied by the Respondent, that at the close of the December 16 , meeting the parties were in agreement on contractual provisions but that Emory thereafter refused to sign the contract. Resolution of the conflict on this point, among others, appears in the next section. Following a brief meeting of the parties on December 24, concerning which evidence is at variance, employees at the terminal struck. The cause of the strike is the major issue in this case. About 30 of the Respondent's approximately 45 employees joined the strike. On December 26 the Respondent sent to each of the strikers the following wire : In view of the fact that this is a public transportation business and must operate as a public service you are advised to return to your job on your regular shift ndt later than December 27th 1949 or report for duty not later than 8 PM December 27th 1949 otherwise your job will be filled with a permanent replacement. A copy of the wire was also sent to the Union. General Counsel contends that this action by the Respondent constituted discriminatory discharge of the otrikers. After the beginning of the strike the parties met, with representatives of the U. S. Conciliation Service, on December 27, January 3, 10, and 11, 1950. At the January 10 meeting Hardesty gave Emory the following letter : This letter will constitute an offer made through the Transport Workers Union of America for the return of all strikers. at the Terminal to their jobs without condition. All striking employees, thirty in number, are now ready and willing to return to work, and by this means make application for reinstatement. This is a continuing offer in the event it is not immediately accepted. Emory agreed to give his reply the next day. Although the record does not show precisely what reply Emory made on January 11, if any, the Respondent has failed and refused to reinstate any of the 30 strikers named in the com- plaint. Emory summarily ended the negotiating conferences on January 11 by informing the union representative that if he wished to negotiate further with it he would notify it through a United States Conciliator. No such notifica- tion was thereafter received by the Union. B. Negotiations up to and including December 16, 1919 It was General Counsel's contention at the hearing and urged by the Union in its brief that the Respondent first refused to bargain on or about November 11, when it declined to meet for negotiations until receiving formal notifica- tion by the Board of the Union's certification. Although in view of its conduct thereafter, as described below, the Respondent's good faith declination on that date is in grave doubt, the Trial Examiner is unable to find that the pre- ponderance of evidence establishes that the Respondent was motivated by bad faith. The election of November 9 was between the Union and another labor organization ; 2 the Respondent reasonably may not have been certain, as urged in its brief, that no objections to the election would be filed within the time provided by the Board's regulations. In any event, it is clear from Hardesty's letter of November 12, quoted above, that this union official made no issue of the point, and merely agreed with Emory that negotiations would be started, "as you suggested yesterday," upon Board certification. In short, the Trial 2 Brotherhood of Railway and Steamship Clerks, etc. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner finds that the Respondent did not refuse to bargain on November 11, 1949. Following Board certification the parties first met on November 25.8 Although be had received the Union's proposed contract with Hardesty's letter of No- vember 12, at the November 25 meeting Emory informed W. Don Ellinger, a union official, and a committee of employees that he "had not had time to read" it and could not negotiate that day. Emory, as a witness, neither denied nor explained his having refused to -negotiate on November 25 concerning the terms of a proposal which had been in his possession for nearly 2 weeks. In the opinion of the Trial Examiner, Emory first evidenced, by such refusal on this date, a bad-faith approach to his legal obligation to bargain with the Union in good faith. In any event, two points were discussed and agreed upon at this con- ference. Upon inquiry from the Union Emory specifically affirmed that he was "fully authorized to negotiate to a conclusion and sign an agreement." He made no mention at this meeting that he would have to, or would, consult his board of directors before completing any final agreement. A schedule of future meetings was agreed upon. It was agreed that negotiations would start on De- cember 2 and continue thereafter each day, except Sunday, until either agreement or an impasse was reached. Emory also agreed to submit a written company counterproposal by November 30. Following this meeting Hardesty sent a Letter to Emory containing the Union's understanding of the negotiating sched- ule agreed upon. Emory did not reply to this letter. No meeting was held on December 2. Although the union committee con- vened prepared to meet, a wire was received from Emory stating that he "was grounded" in another city The parties finally met on December 5. Provisions of the two proposals were discussed. On December 12 another meeting was held.' At this meeting Emory stated flatly that he would not agree to a contract unless two categories of employees (station auditor and dispatchers) were omitted from coverage in such contract. This position was contrary to that urged by the Respondent at the representation proceedings which preceded the election above referred to. Indeed, the Com- pany's brief in that case (16-RC-419) urges that the sole issue in that case was determination of the question as to whether or not these two classifications should be included in the appropriate unit, the Company insisting that they should be included, because nonsupervisory. The Board ruled in its favor and the unit certified included them.' The Trial Examiner is convinced and finds that the Respondent, by refusing to agree to any contract unless the Union yielded to its demand that the appropriate unit as found by the Board, at its own insistence, clearly displayed bad-faith bargaining. That the Union finally yielded is no valid defense for the Respondent's arbitrary action. 8 Many of the facts as to negotiating conferences are based upon a stipulation of the parties made at the opening of the hearing ; other details rest upon the credible testimony of W. Don Ellinger, who led negotiations for the Union, and who as a witness testified largely from notations made upon the face of documents used during negotiations. Ellinger was an impressive witness, forthright and unshaken on cross-examination. 6 Emory said he "recalled" meeting on December 6 and 7, but he testified as to nothing occurring on either day. Both Ellinger and Hardesty denied that meetings were held on those dates. On cross-examination Emory admitted that he was "not positive," and the Trial Examiner finds that his recollection on this point was mistaken. 5 In its brief in the representation case the Respondent said : "The dispute is that the Employer and the Intervenor (The Railway Brotherhood) contend that that unit should include the positions of dispatcher and station auditor, while the petitioner (the Union) wishes to eliminate those two positions as being supervisory. There is no other dispute." UNION BUS TERMINAL OF DALLAS , INC. 213 Negotiations were also continued on December 13, 14, 15, and 16. Agreement was reached upon many of the proposed contract provisions . It is unnecessary here to describe in detail the discussion on all points considered by the parties. It is the contention of General Counsel and the Union , however, that by injecting into the negotiations of December 15 an entirely new proposal as to seniority the Respondent also refused to bargain in good faith. Under the circumstances described in the record the Trial Examiner is not persuaded by the preponderance of evidence that bad-faith bargaining on this point is established. As noted above, the major issue presented is whether or not at the close of the meeting on December 16 the parties were in full agreement , but that Emory declined to sign a contract and insisted for the first time that he must consult his board of directors . In substance, Ellinger's version of this meeting is that agreement was finally reached upon all points at issue, and that he then proposed to Emory : "Let's write this thing up and sign it up"; but that Emory replied that he was without authority to sign and must first submit the matter to his "board of directors ." Emory denied that agreement was reached on all matters and that any question of his authority to sign was raised . He cited several points which still remained in dispute at the close of this meeting . A sharp question of credibility is thus raised . The Trial Examiner is convinced, not only from his observation of the two witnesses , but from Emory's admissions on cross-examination and on direct , and the probabilities inherent in the situation described by Emory himself, that Ellinger's version is the more credible. Emory admitted that at the close of this meeting he told Ellinger, "Now that we are through here, I don't think there is anything particularly in our way of reaching a complete agreement ," and further admitted that he had said he wanted "to take the opportunity to talk to some of the people on my board." It is unreasonable to believe that had there been any serious disagreement on contractual provisions at the close of this meeting Emory would have made the statement he admits having made. His admission that he "wanted " to submit the agreement to his "board" lends support to Ellinger 's testimony that Emory for the first time claimed lack of authority to sign. It is also clear from Emory's testimony that the parties had previously planned to meet on December 17. On that date Emory "left town," a departure which reasonably appears to have been made in the mutual belief that all contract differences had been ironed out, and that further negotiations were unnecessary. It is also reasonable to believe that had there been material disagreement at the close of the December 16 meeting, the Union would have protested against cessation of negotiating con- ferences. The Trial Examiner is convinced , and finds, that the parties at the close of the December 16 meeting had reached agreement on all substantial points at issue, that for the first time Emory made the claim that he lacked authority to sign any agreement without approval of his board of directors, and that he thereby clearly exhibited bad faith and, in effect, refused to bargain. C. Other events leading up to the strike of December 24 Although questioned specifically, Emory did not deny and the Trial Examiner finds that the next day, December 17, Emory called Ellinger and told him that he "thought the response" of his directors "was favorable," that one had objected to "the wording of a couple of minor matters" which would not affect the meaning of the contract , and that although he was leaving he would he back on December 22 and would get in touch with him without fail by noon on Friday, December 23. 986209-52-vol 97--15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 22 Ellinger called Emory's office . He was not in. Ellinger talked with Emory's secretary, who told him Emory would not be back that day, but was still, "in the Valley." Ellinger tried to reach Emory at various places suggested by the secretary, but was unable to locate him. On the morning of December 23 Ellinger received a wire from Emory stating : " Impos- sible to arrive at Dallas until tonight. Meeting will be held Saturday." Ellinger reasonably interpreted Emory's reference to a "meeting" to mean a directors' meeting. The Trial Examiner does not credit Emory's claim at the hearing, that in this wire he in fact meant a meeting with the Union .6 Late the afternoon of December 23 Emory telephoned to Ellinger and told him that he had talked with a number of the directors by telephone and that there were several sections of the contract which they objected to and which he could not then "go along with." Ellinger protested that the Union committee believed full agreement had been reached on these matters, and when Emory suggested they postpone further meetings until December 27, urged that he meet with the committee that night, since the committee members would believe he had "lied" to them. Ellinger then urged him to meet the next day, on Decem- ber 24, but Emory again declined, saying that he had a "wife and daughter to take care of." Later that evening Emory again called Ellinger, and said there was another item-that of a wage scale for porters, which the directors would not approve. Ellinger warned him that he was "heading straight into a strike" and finally prevailed upon him to agree to meet briefly the nest day, December 24, In an effort to convince the men he "meant business." 7 A brief meeting was held on December 24. Emory removed neither his hat nor coat, said he was not there to discuss any issues, and flatly said he would sign nothing. Upon the Union's insistence some discussion was had on Emory's proposal that the termination date be changed in the contract, as well as some other matters. Finally Emory said he would sign nothing, and asked if the United States Conciliation Service should be called in. The union representative said he had no objection to this service "being in the case," but that it would not settle the matter. Emory left, and, upon authority granted at a union weeting the evening before, picket lines were promptly established at the terminal. About 30 of the Respondent's 45 employees went on strike." 6 Emory's own testimony refutes his claim . As noted above lie admitted having pro- tested, on December 23, against meeting with the Union on December 24 4 Emory admitted the two telephone conversations and having said he did not want to meet on December 24 According to his testimony, however, which on this point is wholly incredible , he told Ellinger they would meet the next day and "come to a complete agree- ment. We will sign a stipulation that we have agreed . . 21 Emory, apparently, would have it believed that he at once rode horses in opposite directions-that on December 16 the parties were in dire disagreement on several matters, but on December 23, after an interim in which there had been no meetings , he was willing to sign a stipulation that agreement had been reached. 8 The Trial Examiner considers the text of the following document, obviously prepared before the strike, as significant support of Elhnger's version of the negotiations and a pointed refutation of the Respondent's claim that the strike was economic and caused in an effort to cripple transportation at a busy season It was addressed to "All Union Bus Terminal Employees" from W. Don Ellinger, field representative In accordance with your instructions, the Negotiating Committee met with Dir. Emory on Friday, December 16th, and presented a minimum compromize (sic) settle- ment of all issues before the parties After lengthy discussion, Mr. Emory agreed to recommend the compromize (sic) settlement to his board of directors He further agreed to talk with the Key board members on Saturday, December 17th, and to call an official board meeting for Friday, December 23 He agreed to call us on Saturday, December 17th, and let us know the results of phone discussions He did so, and reported that the reaction was favorable and he was confident that he could secure board approval, with a couple of minor exceptions UNION BUS 'TERMINAL OF DALLAS, INC. 215 D. The strike and following events On December 26 Emory sent copies of the following wire to each of the striking employees : In view of the fact that this is a public transportation business and must operate as a public service you are advised to return to your job on your regular shift not later than December 27th 1949 or report for duty not later than 8 PM December 27th 1949 otherwise your job will be filled with a permanent replacement. On December 27 and again on January 3 meetings were attended by the parties and representatives of the United States Conciliation Service. On Decem- ber 27 Emory stoutly maintained the position that he would discuss no matters "relating to the strike" until January 3. On January 3 Emory stated that the "whole contract was in dispute," that the strike had "changed all the situation," that the board of directors "were now a lot tougher on him," and that "all commitments were off." Finally Emory agreed to draft a new pro- posed agreement for submission through the conciliator. The Respondent's new proposal was delivered to the Union on January 7. The first article of the new proposal provided, with reference to recognition of the Union, that "there may exist a state of facts whereby the Union is not now the actual majority representative of the Company's employees, and if through any com- petent legal proceedings such state of facts should be determined to exist, this contract shall, as of the date of such determination, be void and of no furtheg force or effect." Considerable discussion about this new proposal occurred at a meeting on January 10, the Union maintaining that the strike had been caused by the Respondent's unfair labor practices and that the strikers, not the replacements, were employees. At this meeting the Union presented Emory with the follow- ing letter : This letter will constitute an offer made through the Transport Workers Union of America for the return of all strikers at the Terminal to their jobs without condition. All striking employees, thirty in number, are now ready and willing to return to work, and by this means-make application for reinstatement. This is a continuing offer in the event it is not immediately accepted. Please inform us -in writing of the place and manner in which these striking employees should report for duty. We would appreciate and request a reply at your earliest convenience, and if possible by Wednesday noon, January 11th, so that the group may meet promptly to take appropri- ate action. A copy of this communication is being mailed to the 16th Region of the National Labor Relations Board. There is no evidence that the Respondent has ever replied to the foregoing letter. In any event, it is conceded by the Respondent that none of the 30 individuals has ever been recalled for work. Footnote 8-Continued Your committee and representatives recognize your desire for a prompt settlement, and expressed this fully to Mr. Emory. His request for a one week delay was occa- sloned by a quick trip to Mexico, and we are agreed that his assurances that he will recommend the settlement are worthy of our confidence. He has promised to give us the board's decision on Friday, December 23 s • • s Special meeting to act on his answer will be held Friday, December 23, 7 p m and 12: 00 midnight 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At a brief meeting of the parties on January 11 Emory told a union official that if he wished to negotiate further he would let the Union know through the conciliator. No meeting has since then been held. E. Conclusions The complaint alleges, the answer admits, and the Trial Examiner concludes and finds that employees of the Respondent, including all ticket agents, tele- phone information clerks, report clerks, baggage and express agents, red caps or porters, the station auditor, dispatchers or bus callers, and maids employed at its terminal, exclusive of professional employees and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. It is concluded and found, on the basis of the Board election held that date, that since November 9, 1949, the Union has been, and now is, the exclusive repre- sentative of all the employees in said unit for the purposes of collective bargaining. On the basis of facts set forth above the Trial Examiner concludes and finds that on November 25, 1949, and at all times since that date, the Respondent has refused to bargain in good faith with the Union a It is further concluded and found that: (1) The strike of December 24 was caused by the Respondent's refusal to bargain; (2) the Respondent's letter to all strikers of December 26, in which it threatened "permanent replacement" for each employee who did not report for work at a given time, constituted an effective discharge of each of the 30 individuals named in the complaint; (3) such discharges were discriminatory to discourage union activity and because the employees had engaged in concerted activity; (4) by refusing to reinstate the said 30 individuals, upon the unconditional offer to return on January 10, the Respondent discriminatorily denied reinstatement to employees engaged in a strike caused by the Respondent's unfair labor practices; and (5) by such conduct the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. 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 its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the_ free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union. It will therefore be recommended that the Respondent cease and desist therefrom, and also that upon request it bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employ- 9 The Trial Examiner considers specific refusals to include: (1) Insistence upon a unit other than that determined by the Board ; (2) Emory's refusal to sign the contract on December 16 and announcement for the first time that he was without authority to con- clude an agreement; and (3) Emory's refusal to sign anything on December 24. Bad faith was first exhibited by Emory on November 25, when he declined to discuss a proposal which bad been in his possession for nearly 2 weeks. UNION BUS TERMINAL OF DALLAS, INC. 217 ment, and if understanding is reached embody such understanding in a signed contract. It has been found the Respondent has discriminated in regard to the hire and tenure of employment of 30 employees listed in Appendix A, attached hereto. It will be recommended that the Respondent offer to them immediate and full reinstatement to their former or substantially equivalent positions,10 and make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which he or she would have earned as wages from January 10, 1950,11 to the date of offer of reinstatement. Loss of pay will be computed on the basis of each separate calendar quarter or portion thereof during the period from January 10, 1950, to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, his net earnings,12 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.33 In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. Transport Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the individuals named in Appendix A, attached hereto, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All ticket agents, telephone information clerks, report clerks, baggage and express agents, red caps or porters, the station auditor, dispatchers or bus callers, and maids of the Respondent, employed at its terminal, exclusive of professional employees and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 10 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 11 Although it has been found that the Respondent discriminated against these employees on December 26, by the letter containing notice of effective discharge, it is clear that the strik- ing employees unconditionally offered to return to work on January 10, and were refused reinstatement as of that date. 22 Crossett Lumber Company, 8 NLRB 440. 1S F W Woolworth Company, 90 NLRB 289. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Transport Workers Union of America , CIO, was on November 9, 1949, and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes ,of collective bargaining. 5. By refusing to bargain collectively with Transport Workers Union of America, CIO, as the exclusive bargaining representative of the employees in that appropriate unit, the Respondent has engaged in 'and is engaging ii ►unfair labor practices within the meaning of Section 8 ( a) (5) of the Act. 6. By interfering with, restraining, and coercing its Qmployees in the exercise of 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 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] Appendix B NOTICD 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 WILL Nor in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist TRANSPORT WORKERS UNION OF AMERICA, CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to the employees listed 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 dis- crimination. Joe B. Autrey Joyce Griffin James H. Rains Annie May Brice Alphonzo Hubert C. L. Reed, Jr. Roy T. Brittain H. W. Hubley D. M. Richman William Brooks A. J. Johnson Joe Robertson David A. Brown J. T. Jones Coon Smith Zelvic Campbell Billy E. Lundy Odie Sorrells Calvin Conner Mrs. Billy E. Lundy Rufus Walker Namon Dale Billy J. McGlaun Marlow Watson Frank Dewberry W. R. McWhorter J. A. Winters, Jr. John Glenn Ella B. Meeks Fred Goss WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : KANSAS MILLING COMPANY 219 All ticket agents, telephone information clerks, report clerks, baggage and express agents, red caps or porters, station auditor , dispatchers or bus callers, and maids , exclusive of professional employees and all supervisors as defined in the Act. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or,any terms or conditions of employment against any employee because of his membership in or activity on behalf of any such labor organization. UNION Bus TERMINAL OF DALLAS, INC., Employer. Dated-------------------- By ------------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. KANSAS MILLING COMPANY and AMERICAN FEDERATION OF GRAIN PROCESSORS, A. F. OF L., LOCAL UNION 20991 . Case No. 17-CA-4. November 30, 1951 Supplemental Decision On November 9, 1950, in a proceeding under Section 10 (f) of the Act to review the Board's Order in this case,l the United States Court of Appeals for the Tenth Circuit ordered the case remanded to the Board for the following purpose : To take further evidence to establish how many places, if any, not filled by permanent employees, were available as of October 18, 1947, and to make findings and certify such findings to this Court; when that is done then the final order in this cause will be entered in conformity with the views expressed in the opinion of the Court .2 Thereafter, pursuant to the court's order, a hearing before a Trial Examiner was held upon due notice, and evidence was introduced by all parties. On July 12, 1951, Trial Examiner Arthur Leff issued a Supplemental Intermediate Report, a copy of which is attached hereto. The Respondent and the General Counsel thereafter filed exceptions to the Supplemental Intermediate Report, and briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Sup- plemental Intermediate Report, the exceptions and briefs, and the '86 NLRB 925. ' The opinion of the Court is reported at 185 F. 2d 413. 97 NLRB No. 35.