Almeida Bus Service

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT inform our employees that any employee has been discharged because of his activities on behalf of AMERICAN FEDERATION OF LABOR or any other labor organization of our employees. WE WILL NOT threaten our employees that our operations will cease or employees will be discharged if they form a labor organization. WE WILL NOT discourage membership in AMERICAN FEDERATION OF LABOR or any other labor organization of our employees by discriminating in any manner with regard to their hire and tenure of employment , or any term or condition of employment. WE WILL MAKE WHOLE Frances C . Perry for any loss of pay suffered by her as a result of the discrimination against her. All our employees are free to become, remain , or to refrain from becoming or remaining members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. J. LEE KLESNER, an individual , doing business as JEK MANUFACTURING COMPANY, Employer. Dated------------ By -------------------------------------------------- (Representative ) (Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. JOHN ALMEIDA, JR., D/B/A ALMEIDA Bus SERVICE , AND ALMEIDA Bus LINES, INC.,' and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA , DIVISION 1442. Case No. 1-CA-879. June 4, 1952 Decision and Order On August 21, 1951, Trial Examiner John H. Eadie 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. In his Intermediate Report the Trial Examiner also recommended the dismissal of certain allegations in the complaint. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report. The Respondent filed a brief in support of its exceptions, and a request for oral argument. This request is hereby denied as the record, the exceptions, brief, and other argument in this case adequately present the issues and positions of the parties. Together with its exceptions and brief, the Respondent filed a mo- tion to reopen the record for the purpose of receiving in evidence and ' Herein collectively called the Respondent. 99 NLRB No. 79. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC. 499 making a part of the record certain documents, copies of which were appended to the motion. The Respondent included with its motion a statement in support thereof. The General Counsel filed a written opposition to the motion. Having duly considered the Respondent's motion and the nature of the evidence sought to be incorporated in the record, and the General Counsel's argument in opposition, the Board, on April 23, 1952, issued and served on the General Counsel and the other parties to the case notice that unless sufficient cause to the contrary were shown in writing filed with the Board on or before May 5, 1952, these documents would be incorporated in and made part of the record in this ^.ase. ND interested party having filed a response to the notice by May 5, 1952, the Board granted the Respond- ent's motion and ordered that the documents appended thereto be incorporated and made a part of the record. The complaint in this case is based upon an original charge filed February 26, 1951. The Trial Examiner found that the Respondent had unlawfully interrogated an employee on or about August 28, 1950, refused to bargain with the Union pursuant to its request of Sep- tember 21, 1950, and that certain employees who had struck on Sep- tember 28, 1950, in consequence of the refusal to bargain, had uncon- ditionally requested reinstatement on December 21, 1950, but that the Respondent had unlawfully refused to reinstate them. In its exceptions to these findings the Respondent contends that the complaint should be dismissed, on the ground that it would not effectuate the policies of the Act to assert jurisdiction over the Re- spondent's operations in this case. Essentially, the Respondent argues that the rule of equity and fairness applied by the Board in the Screw Machine case, 94 NLRB 1609, which led to the dismissal of the com- plaint in that case, should be invoked in its favor here. The facts on which the foregoing argument is predicated are these : The Respondent owns and operates a public transit system for trans- portation by bus of passengers and freight between Boston, New Bedford, and other Massachusetts communities. The evidence re- ceived pursuant to the Respondent's motion reveals in substance that in June 1948, Local Union No. 59, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, filed a representation petition with the Board at its Regional Office in Boston, seeking certification for a unit of the Re- spondent's bus drivers; that on advice of the Board's field examiner assigned to the case that the Board would not assert jurisdiction over the Respondent because of the "local" character of its operations, the Teamsters withdrew its petition and filed a new petition for a unit of the Respondent's bus drivers with the Massachusetts Labor Rela- tions Commission, herein called the MLRC; and that the Respondent 500 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD '- was informed of the field examiner's action resulting in withdrawal by the Teamsters of the Board-filed petition.2 The evidence adduced at the hearing shows that thereafter, in June 1949, the Union filed a representation petition with the MLRC pur- suant to the Massachusetts Labor Relations Law,3 and, following a State-conducted election, was certified by the MLRC on August 26, 1949, as representative for a unit of the Respondent's bus drivers. In September 1949 the Union filed a charge with the MLRC against the Respondent alleging the discriminatory discharge of 2 employees, and in October 1949 filed another charge alleging an unlawful refusal to bargain. These charges resulted. in an order by the MLRC on February 27, 1950, requiring the Respondent to bargain with the Union. Upon the Respondent's refusal to comply with this order, the MLRC obtained an enforcement decree from the State superior court on December 1, 1950. The Respondent appealed from the de- cree to the State supreme court. On January 3, 1951, the Union filed another charge with the MLRC against the Respondent, alleging a refusal to reemploy the employees who had struck on September 28, 1950. The Respondent thereupon moved for a dismissal of the charge on jurisdictional grounds. The State supreme court appeal and the motion before the MLRC to dismiss the last-mentioned charge are being held in abeyance pending our disposition of the instant case. On October 6,1950, in Local Transit Lines, 90 NLRB 623, the Board recited new standards whereby it would thenceforth assert jurisdic- tion over public transportation systems of the Respondent's type. The charges before us were filed several months later. The Respondent contends that the Board, by its decision in the Duke Power case, and by the action of its agents, caused the Respond- ent, the Union, and the MLRC to believe that this Board, for policy reasons, would not assert jurisdiction over the Respondent's opera- tions; that acting upon such belief the Respondent, the Union, and the MLRC have litigated the issues in the instant case under the Massachusetts statute; that the events with which this proceeding is concerned occurred during the period when the Board had led the parties to believe that the Act and the Board's decisional rules would not be applied and therefore need not be adhered to by the Respondent; and that consequently the Respondent is being subjected by this proceeding to multiplicity of litigation-and to conflicting and 2 The Teamsters sent a letter on July 21, 1948, to the Respondent, enclosing a copy of its letter to the Regional Office requesting withdrawal of the petition in view of the field examiner's advice. In a letter to the Respondent's attorney, dated July 28, 1948 , the field examiner affirmed that he had advised the Teamsters that the Board would not assert jurisdiction over the Respondent 's operations, in view of the Board ' s decision in Duke Power Company, 77 NLRB 652 . ( In that 1948 case the Board had dismissed a representa- tion petition on the ground that it would not effectuate the policies of the Act to assert jurisdiction over a transit company whose operations were essentially local.) 8 Chap. 345 of the Acts of 1938 ( Mass. ), as amended. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC. 501 inconsistent laws and decisional doctrines. The Respondent urges that in these special circumstances equity and fairness require dis- missal of the complaint. We find merit in the Respondent's contention in this particular case. We are convinced from its history that the circumstances surrounding the Teamsters' withdrawal of its representation petition in 1948 rea- Spnably led the Respondent to believe that its operations would not be subject to assertion of the Board's jurisdiction and therefore justi- fied the continued belief, until notice to the contrary, that no sanctions would be imposed by the National Labor Relations Board for any con- duct allegedly violative of the Act committed by the Respondent. No such notice was forthcoming until the issuance of the Board's decision on October 6, 1950, in the Local Transit Lines case. By then, the con- duct found by the Trial Examiner to have been unlawful had already been committed. It is true that the refusal to reinstate the strikers, found by the Trial Examiner to be a violation, did not occur until De- cember 21, 1950, some time after the announcement of the new decisions on exercise of jurisdiction had, issued. However, we are not disposed here to separate the refusal to reinstate from- the original refusal to bargain, which, as found by the Trial Examiner, occurred before the announcement of the new jurisdictional policy, particularly as the rights of the striking employees to reinstatement necessarily must be conditioned upon a preliminary finding of an earlier refusal to bar- gain. Accordingly, we are satisfied that equity and fair play require dismissal of the instant complaint in its entirety. In arriving at the foregoing conclusion we are mindful that, in the Screw Machine case relied upon by the Respondent which the Gen-' eral Counsel attempts to distinguish from the instant case, the Board emphasized the fact that it had dismissed a representation petition in a formal decision on jurisdictional grounds before commission of the allegedly unlawful conduct by the respondent in that case, and that in dismissing the complaint the Board there said that this result was dictated by an obligation to respect its prior decisions as well as by a desire for fair play .4 It is apparent, however, from the decision that the controlling consideration there was the Board's reluctance to inlpose statutory sanctions against a party for conduct committed after , advice and notice from the Board that its conduct would not be action- able, and not the exact form in which such advice and notice had been given. The same broad principle is applicable here. * See also the Board rationale in Tom Thumb Stores, Inc., 95 NLRB 57. 5 The Board has also acknowledged an obligation to respect the actions of its agents where parties have thereupon been induced to engaged in conduct or to refrain from a course of conduct later alleged to constitute violations of the Act. In these circumstances, the Board has expressed the belief that it would "not be equitable to make findings of violation of the Act." See West Texas Utilities Company, 'Inc., 85 NLRB 1396, enf.'184 Pi 2d 233, and Armour Fertilizer Works, Inc., 46 NLRB 629. See also N. L. R. B. v., Atkinson Co., et al., 195 F. 2d 141 (C. A. 9). 215233-53-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Upon an amended charge duly filed by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1442, herein called the Union, the General Counsel of the National Labor Relations Board, respectively called herein the General Counsel and the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint dated June 19, 1951, against John Almeida, Jr., doing business as Almeida Bus Service, and Almeida Bus Lines, Inc., herein called the Respondents, alleging that the Respondents have engaged in, and are engaging in, unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1), (3), and r(5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges (1) that on or about September 1, 1950, a majority of the employees of the Respondents in an appropriate unit designated and selected the Union as their collective bargaining representative; (2) that the Respondent on or about September 22, 1950, and at all times thereafter refused to bargain collectively with the Union ; (3) that from on or about August 26, 1950, the Respondents engaged in certain acts of interference, restraint, and coercion; (4) that on or about September 28, 1950, the Respondents' employees at their New Bedford terminal ceased work concertedly and went on strike; (5) that said strike was caused by the unfair labor practices of Respondents; (6) that on or about December 21, 1950, the em- ployees listed in Appendix A (attached hereto and made a part hereof) applied for reinstatement to their former or substantially equivalent positions of em- ployment ; and (7) that the Respondents on or about December 21, 1950, refused and thereafter continued to refuse to reinstate said employees, excepting Manuel Amaral, Jr., whom the Respondents rehired on or about January 26, 1951, for the reason that they were adherents of the Union, or had participated in the strike, or had refused to work during said strike. On or about June 28, 1951, the Respondents filed an answer in which they denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at New Bedford, Massachusetts, from, July 9 to 13, 1951, inclusive, before the undersigned Trial Examiner. The General Counsel and the Respondents were represented by counsel, and the Union by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Counsel for the General Counsel and the Respondents presented oral argument at the conclusion of the testimony. The General Counsel filed a memorandum of law with the Trial Examiner after the close of the hearing. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS John Almeida, Jr., herein called Respondent Almeida, is an individual who does business under the trade name and style of Almeida Bus Service. Almeida ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC. 503 Bus Lines , Inc., herein called Respondent Corporation is and has been since December 23, 1947, a corporation organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. Before May 7, 1951, Respondent Almeida's principal office and place of business was located in the city of New Bedford, Massachusetts , where he was engaged in the business of a common carrier in the transportation by motor busses of passengers and "express" freight for hire in and between various communities in Massachusetts, and of passengers by special charter arrange- ment to points within and without the Commonwealth of Massachusetts. Un- der certificates of franchise of the Department of Public Utilities of the Com- monwealth of Massachusetts , Respondent Almeida operated regular bus routes from New Bedford to Brockton , New Bedford to Boston, New Bedford to Middle- bow, and Boston to Hyannis. During the year 1950, Respondent Almeida's income from the sale of passen- ger tickets, excluding charter service, amounted to approximately $335,000. Dur- ing the same period, the revenue from freight amounted to approximately $2,726; and it appears that revenue from charter service to points without. Massachusetts exceeded , $2,000. During the year 1950, Respondent Almeida purchased gasoline and oil from Tidewater Associated Oil Company in the amount of $15,232.82 , and parts from General American Aero-Coach Company and Ford Motor Company in the ap- proximate amount of $43,000; and contracted for the purchase of new busses in the approximate amount of $204,294.90. These busses were delivered during 1951. With respect to the busses purchased from General American Aero- Coach Company, delivery was accepted in the State of Illinois, and Respondent Almeida's employees drove them to New Bedford. On May 7, 1951 , the certificates of franchise were transferred from Respondent Almeida to the Respondent Corporation by the Department of Public Utilities ; and the Respondent Corporation became the successor to Respondent Almeida. Thereafter, the operation of the business did not change in any material respect. John Almeida, Jr., as an officer of the Respondent Corporation, continued as active manager of its business with the same office personnel , supervisors, and employees. II. THE ORGANIZATION INVOLVED Amalgamated Association of Street , Electric Railway and Motor Coach Em- ployees of America, Division 1442, is a labor organization which admits to mem- bership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Background ; sequence of events On June 23, 1949, the Union filed a petition for certification as bargaining representative of Respondent Almeida's bus drivers with the Labor Relations Commission of the Commonwealth of Massachusetts . After an election which was held on August 4, 1949, the Commission certified the Union on August 26, 1949. About the middle of September 1949, Victor De Moranville and Manuel Barboza, business agent and president of the Union , respectively , called at the office of Respondent Almeida and attempted to give him a copy of the Union's proposed contract . Almeida refused to accept the contract or to discuss it. Thereafter, and on September 21, 1949, Patrick J. O'Brien, a member of the general executive board of the Union filed with the Commission an unfair labor practice charge against Respondent Almeida. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On about September 29, 1949, representatives of the Commission held an "in- formal conference" at New Bedford with the parties. Charles Adams appeared at the conference as Almeida 's attorney. Some few days later, as agreed at the conference, O'Brien gave Adams a copy of the Union's proposed contract. As a result of this conference, the parties agreed to meet and did meet early in Oc- tober at Adams' office. A conciliator of the United States Conciliation Service was present. It appears that discussion at the meeting, which lasted for about 3 hours, was confined almost entirely to the question of recognition . Although the conciliator referred him to the Commission 's certification, Almeida would not agree to recognize the Union as the exclusive bargaining representative of the bus drivers. However, he agreed to submit a counterproposal to the Union. On October 11, 1949, Respondent Almeida sent his "counterproposal " to O'Brien. The proposal did not provide for recognition of the Union as the exclusive bar- gaining representative of the bus drivers , and was not a collective bargaining contract in the usual sense in that it provided for management 's exclusive con- trol over wages, hours , and working conditions of employees. O'Brien called Adams and told him that the proposal was not acceptable since it was not a contract and was merely a copy of Respondent Almeida's "book of rules." O'Brien attempted to arrange another bargaining conference , but was not successful. On October 18, 1949, O'Brien filed another charge against Respondent Almeida with the Massachusetts Labor Relations Commission . This charge alleged a re- fusal to bargain. After holding a hearing , the Commission rendered a decision on February 27, 1950 , in which it ordered Respondent Almeida to bargain with the Union. During the early part of May 1950 , O'Brien made several visits to the office of Respondent Almeida in an attempt to arrange a bargaining conference. On each occasion he was told that Almeida was away from the city . O'Brien requested Almeida 's secretary to have Almeida call him. When he did not hear from Almeida, O'Brien went to Adams' office and requested him to arrange for a con- ference. Adams told O 'Brien that the Union should deal with Almeida directly, as he was "all through" with Almeida . Thereupon, O'Brien made another visit to Almeida's office. When he was informed that Almeida was not present , he again left word for Almeida to call him . Almeida ignored his message. On July 11 , 1950, O'Brien wrote to Almeida as follows : I write you at this time for a conference at your earliest convenience. I have been trying to get you a dozen times without any success. You have been away out of town or secluded someplace where nobody could reach you.-So I take this means of notifying you that we would like a con- ference. Trusting you will give that your earliest attention, I am Almeida replied with the following letter, dated July 13, 1950: I have your letter of July 11, 1950. It is true as you apparently realize, that I have to be away from my office on business a large part of the time. I would suggest that the next time you are planning to be in this vicinity you call the office and attempt to make a definite appointment to see me. The Union held a meeting on September 20, 1950 . Robert Lemay, president of the Union at the time, told the employees that O'Brien had been unable to arrange for a conference with Almeida . A strike vote then was taken; and the members present, all of whom were bus drivers of Respondent Almeida, voted unanimously to strike. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC . 505 Under date of September 21, 1949, O'Brien sent the following letter to Almeida :1 As you well know the Amalgamated Association of Street Electric Rail- way and Motor Coach Employees of America, Division 1442 affiliated with the American Federation of Labor has represented a majority of your bus drivers since August 1949. Your knowledge of this is as a result of an election conducted by the Massachusetts Labor Relations Commission in August 1949 when that Commission certified this Division of the Amal- gamated as the bargaining agent for your bus drivers. As more than a year has passed since said certification and because of your constant refusal to bargain with this Union, a meeting was called at New Bedford of Division 1442 which consists of more than a majority of your bus drivers. At this meeting several more bus drivers signed up with out (sic) Association. This letter will serve to advise you that we now claim to represent prac- tically all of the bus drivers employed by you and are requesting that you make arrangements for a conference between yourself or your attorney and a representative of the Amalgamated and a committee from the division at the earliest possible time. Unless we hear from you within a reasonable time as to said conference for the purpose of negotiating a contract, it has been voted by the members of Division 1442 that a strike of the bus drivers will take place not later than October 1, 1951. (sic) We are of the opinion that if you will not arrange a conference that you are refusing to bargain with the proper representative of your employees, in an appropriate unite. (sic) Hoping that it will not be necessary to go to extremes to make you under- stand that your employees have a right to expect you to bargain with their representatives, I remain, Almeida did not answer O'Brien's letter. The strike started at 4 a. in. on September 28, 1950. The bus drivers im- mediately set up a picket line which some of the mechanics refused to cross. These employees also signed authorization cards of the Union that same day. Altogether there were 23 employees who participated in the strike. On September 29, 1950, the Massachusetts Board of Conciliation and Arbitra- tion called a conference of the parties at its office. Adams appeared on behalf of Respondent Almeida, but Almeida did not appear personally. It appears that at this meeting the Union's representatives by their demands increased the bargaining unit so as to include other classifications of employees. Adams stated that he did not have the power to conclude any settlement of the dispute, but offered to relay any suggestions or proposals to,Almeida. The meeting then adjourned when O'Brien insisted on Almeida's presence. 1 The Respondents do not admit that Respondent Almeida received the above letter. The General Counsel introduced in evidence what appears to be an original of the above letter. O'Brien testified credibly to the effect that three carbon copies of the letter were made ; that inadvertently he mailed a copy rather than the original,to Almeida ; and that other copies were mailed to the Labor Relations Commission and the Massachusetts Board of Conciliation and Arbitration. Almeida did not appear at the hearing as a 'witness. Further, Manual Vieira, a bus driver of Respondent Almeida , testified credibly and ' without contradiction that on Sunday, September 24, 1950, when he went to the garage to get a bus, Almeida came to him and told him that he did not, "care" if the drivers "went out on strike" as he had "a gang in Boston ail ready to take over the runs"; and that neither -he `(Vieiia ) nor anyone in his presence had mentioned a strike before Almeida's statement. Accordingly, I find that Almeida did receiver it eopv of, O'Brien's letter. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another meeting at the office of the Board of Conciliation was held on Octo- ber 3 at which Almeida appeared. Adams also was present. O'Brien submitted a copy of the Union's original proposed contract. When Respondent Almeida stated that it would be necessary to study the proposal, O'Brien remarked that the company had had the proposal for almost a year. After discussion of the Union's proposal, Almeida stated that he would consider the Union' s demands and "answer at a later date." An official of the Board of Conciliation then sug- gested the "drawing up of plan for strike settlement." During the ensuing discussion, Almeida left the meeting and did not return. Adams apologized for his client and also left. Another meeting was called by the Board of Conciliation on October 5. Con- cerning this meeting, William Horneman, Labor Relations Adjuster for the Board of Conciliation, was questioned and testified credibly as follows :' Q. Were you present at that meeting? A. Yes, I was. Q. Will you tell us who else was there? A. I have here the same parties both sides plus Arthur J. Mullen, a member of the concern. Q. When you say "member of the concern"- A. The Almeida Company. Q. I see. And tell us what happened at that time. A. Well, the position of the Company was unchanged. In other words, it was the same as it was at previous conferences : "The Company is unable to consider Union demands, thinks them exces- sive. It states further that it does not need any of the strikers ; later qualified by saying it would re-employ some. Company claims its operations are normal and showing greater profit. "The Company took the position that it was not declining to negotiate, but that the Union's demands were exorbitant." This is the position taken by the Company : "Mr. Almeida claimed that because of the strike upset he was in no mental or physical condition to negotiate at this time, however. The Company requested privilege to recess until 2: 00 p. in. in order to keep an appoint- ment." That was agreed upon by the parties, and the recess was held. They got together after the recess. "The Company's position remained unchanged. The Union offered to re- turn the men to work within three hours and arbitrate the entire matter. The offer was declined by the Company. Mr. Almeida became emotional, left the conference. Mr. Adams and Mr. Mullen followed. The conference was adjourned subject to call of the Board." Q. Now, do you remember anything more than what's in your notes? Do you remember what Mr. Almeida became emotional about? A. Well, I don't know as it was anything in particular. I think it was the whole situation. Q. Well, do you remember anything he said about the whole situation or about anything specific before he walked out? A. There were so many things said there. Q. Well, when you say he became emotional, what do you mean by that? A. When I say he became emotional ? He became unstable. He couldn't- He wouldn't concentrate on trying to work out some sort of a solution no- matter what plan was offered. He resisted anything. It made it very 2 Horneman 's testimony was based upon notes which be prepared after the meeting. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC. 507 difficult for everyone concerned to try to settle the matter peacefully, and, if I'might be allowed, Mr. Adams in particular, his attorney, had a difficult time. Q. Well, did he become angry before he walked out, or did he indicate he was angry? A. At one point, yes, he did. At the next meeting called by the Board of Conciliation on October 19, Adams and J: Burke Sullivan appeared as attorneys for Respondent Almeida. Almeida also was present. After a conference between O'Brien and Sullivan, it was agreed that the parties would have a bargaining conference at the latter's office the following week. Thereafter, O'Brien and the Union's bargaining committee had about 2 or 3 meetings with Sullivan at his office. Almeida was not present at any of the meetings. The Union's demands, and particularly the question of exclusive recognition, were discussed at length ; but no agreements, tentative or otherwise, were reached. At first, O'Brien insisted that the bargaining should cover all striking employees, including mechanics. However, after Sullivan called to his attention the fact that the Labor Relations Commission had certified a unit of bus drivers only, O'Brien receded from his position and agreed to confine the bargaining to bus drivers. At the second meeting, Sullivan told O'Brien that he did not have the authority to make any commitments for Respondent Al- meida, and that he would call O'Brien after he conferred with Almeida and "his financial people." Thereafter, Sullivan and O'Brien had a telephone conver- sation during which Sullivan stated that Almeida and the financial people "didn't show" at the scheduled meeting and that he expected to see Almeida the following week. O'Brien called Sullivan the next week; and Sullivan told him that he had not seen Almeida and that he would call O'Brien after he had a conference with Almeida. On or about October 27, 1950, the Labor Relations Commission brought an action in the Massachusetts superior court to enforce its decision against Re- spondent Almeida. Some few days later O'Brien had a meeting with Sullivan at his office. Sullivan referred to the court action and told O'Brien that until the court decided the case there was no use in meeting further. By a decree dated December 1, 1950, the superior court enforced the Com- mission's decision. O'Brien met with Sullivan shortly thereafter. Sullivan told O'Brien that there was no need for further bargaining conferences as Re- spondent Almeida was going to appeal from the decree of the superior court. On December 21, all of the striking employees, in a group, went to Respond- ent Almeida's office and attempted to see him in order to request reinstatement to their jobs. Almeida refused to speak to them. President Lemay then sent Almeida a letter dated December 21 which stated that all 23 of the striking em- ployees desired reinstatement to their former positions. Enclosed were indi- vidual requests for reinstatement from all of the employees involved. Almeida did not answer either the Union's letter or any of the enclosed individual re- quests. B. Interference, restraint, and coercion 3 On about August 28, 1950, Augustine Medeiros, a bus driver, had a conversa- tion with John Almeida, Jr. Concerning this conversation, Medeiros was ques- tioned and testified credibly as follows : 8 Witnesses for the General Counsel testified without contradiction to a number of statements made by John Almeida, Jr. This testimony is not set forth herein for the reason that the General Counsel failed to prove that the incidents occurred within the 6-month period of limitation , as required by Section 10 (b) of the Act. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What was the conversation at that time? A. They wanted to know-they wanted me to tell them who was in-the Union, all that sort of stuff, you know. * * * * * * s Q. (By Mr. Coven) What else did he say besides asking you who was in the Union? A. He was asking me if I was in the Union. Q. What did you say? A. I told him, "No." Q. What else did he ask you? A. He asked me if the boys ever decided to pull a strike, if I'd be with them. Q. What did you say? A. I told him, "Yes, I would be." Q. When you say "with them," who do you mean, with the boys? A. Mr. Almeida. It is found that Almeida's interrogation of Madeiros constitutes interference. Employee John Medeiros, a mechanic in the garage under the supervision of Julie Weigle, refused to cross the picket line on September 28, 1950, and joined in the strike. On that same day, Weigle went to Medeiros and urged him to return to work. Weigle stated that Medeiros and the other mechanics had noth- ing to gain by the strike; and that they had "a lot to gain" if they went back to work as he had "bought the maintenance." The undersigned makes-no finding concerning the above statements of Weigle for the reason that the General Counsel failed to prove that he was a supervisory employee within the meaning of the Act.' It appears from the record that Weigle's only authority I was to assign jobs and otherwise direct the work of mechanics; and that he did 1not have authority to hire, discharge, or discipline employees, or effectively to,rpeT ommend such action. C. The refusal to bargain 1. The appropriate unit and representation of a majority therein The complaint alleges that "all bus drivers employed by Respondents at their New Bedford terminal, exclusive of all. other employees and all supervisors- as defined in Section 2 (11) of the Act," constitute a unit appropriate for the pui' poses of collective bargaining. The Respondents' answer denied this allegation. of the complaint. No evidence was adduced at the hearing which would conflict with the unit alleged to be appropriate. Accordingly, the undersigned finds that said unit has at all times material herein constituted and does now constitute an appropriate unit within the mean- ing of the Act ; he finds that said unit will insure to the Respondents' 'employees the full benefit of their rights to self-organization and collective bargaining, and otherwise effectuate the purposes of the Act. - The record discloses that as of September 21, 1950, Respondent Almeida em- ployed a total of 28 bus drivers, including Gilbert Almeida, Joseph Almeida,•- Jr., and Charles Almeida. These three employees were brother, first cousin, and uncle, respectively, of John Almeida, Jr. The record also indicates that Charles Almeida is a supervisory employee. I find that these close relatives of Respond- ent Almeida should be and are excluded from the unit.' The General Counsel contends that Gabriel Botelho, a bus driver employed by Southern Massachusetts Bus, Lines, Inc., should also be included in the unit. J. B. Wood, et at., 95 NLRB 907. 0. PhUip Faucher, d/b/a Superior Bakery, 78 NLRB 1172. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC. 509 Since that company is not a respondent to this proceeding, the General Counsel's contention is rejected e Therefore, the evidence shows that there were 25 bus drivers in the appropriate unit. The undisputed evidence discloses that as of September ^1, 1950, there were 16 bus drivers, excluding Botbelho,' who were members of or who had designated the Union as their bargaining agent. Accordingly, I find that the Union on and after September 21, 1950, repre- sented a majority of the employees in the unit described above for the purposes of collective bargaining. 2. Conclusions As found above, O'Brien, the Union's representative, by letter dated September 21, 1950, requested Almeida for a bargaining conference; and Almeida ignored this letter. Thereafter, Respondent Almeida met with the Union at conferences called by the Massachusetts Board of Conciliation and Arbitration. Adams appeared at the first conference, but he did not have authority to make any agreements with the Union. At the later meetings at Sullivan's office, it also appears that Sullivan did not have any authority to bind Respondent Almeida. The Union's original contract proposal merely provided for its exclusive recognition as bargaining agent for the bus drivers. No "union shop" or other form of union-security clause was demanded. Nevertheless, although the Union's majority was not questioned, it does not appear that Respondent Almeida at any time agreed to grant exclusive recognition to the Union. O'Brien and Sullivan discussed this question at length ; but no agreement was reached. As related above, O'Brien at first attempted to enlarge the unit so as to include mechanics. However, there was no "impasse" on this question, as the Respondents appar- ently contend, since it is undisputed that O'Brien withdrew his claim at th'e second or third meeting with Sullivan. The record discloses that the Union was diligent in its attempt to bargain and reach an agreement with Respondent Almeida. However, after the first few meetings between O'Brien and Sullivan, Respondent Almeida engaged in dilatory conduct. Sullivan told O'Brien that before holding another bargaining confer- ence it was necessary for him to advise with Almeida and his "financial people." Apparently, from the uncontradicted testimony of O'Brien, Sullivan was unable to get Almeida to confer with him. This resulted in Sullivan's putting off the bargaining conferences for at least several weeks. Finally, Sullivan told O'Brien that there was no "use" or "need" for further bargaining when the Massachu- setts Labor Relations Commission brought an action to enforce its decision and when Respondent Almeida decided to appeal the decree of the superior court. Such court proceedings do not relieve an employer of the duty to bargain. Accordingly, I conclude and find that the Respondents on September 22, 1950, and thereafter refused to bargain collectively with the Union. O The evidence discloses that due to an accident when in the employ of Respondent Almeida as a bus driver and for the purposes of insurance , Botelho was transferred during November 1949, to the payroll of Southern Massachusetts Bus Lines , Inc. ; that as an employee of that company he also drove busses of Respondent Almeida on regular routes ; that employees of Respondent Almelda also drive busses of Southern Massachusetts ; that its busses at times were used on the regular routes of Respondent Almeida ; that all facilities, including garage and office, of Respondent Almeida were used in the transaction of the business of Southern Massachusetts ; that John Almeida , Jr. and his father, John Almeida, Sr., are the owners of the stock of that corporation ; and that John Almeida, Jr., is the president and treasurer. Regardless of this undisputed evidence , I believe that the failure to make Southern Massachusetts Bus Lines, Inc., a respondent in the instant Proceeding is fatal not only to the above contention of the, General' Counsel, but also to the claim of discrimination in the case of Botelho. _n 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The refusal to reinstate On December 21, 1950, the 23 employees (including Gabriel Botelho), who were on strike applied for reinstatement to their jobs. They appeared at the plant in a group and made their offer known to Almeida. He refused to speak to them. Thereupon, the Union forwarded to him individual applications for reinstatement from all the employees. Almelda ignored the applications. The evidence conclusively shows and I find that the strike was an unfair labor practice strike from its inception, caused by Respondent Almeida's illegal refusal to bargain with the Union. Therefore, when the striking employees applied for reinstatement to their jobs on December 21, 1950, it was Respondent Almeida's obligation under the Act to put them back to work, even if that meant displacing new employees who had been hired during the strike. Since the mechanics joined the unfair labor practice strike, this duty to reinstate also applied to them. In defense of their refusal to reinstate, the Respondents adduced testimony concerning three employees, namely, John Jerome, Antone Souza, and Augustine Medeiros. Until about 2 weeks before the start of the strike, Jerome had been the supervisor of the mechanics in the garage. He was replaced by Weigle as supervisor and thereafter worked as a mechanic until he joined the strike. Respondents' witnesses testified to the effect that at about the time of the start of the strike the busses were in poor mechanical condition due to improper maintenance when the garage was under Jerome's supervision. Assuming this to be true, and that Weigle replaced Jerome for that reason, nevertheless Respondent Almeida retained Jerome in his employ for 2 weeks as a mechanic, and until he joined the strike. Also, while in my opinion the point is not material since it was an unfair labor practice strike, there is no evidence that Jerome's work as a plain mechanic was not satisfactory. Accordingly, the Respondents' contention in this connection is rejected. With respect to Souza and Medeiros, Carl Beaty, a bus driver who did not join the strike, testified, in substance, that during about the middle of January 1951, they gave him some emery dust with the understanding that he would put it in the motors of the busses. Both Souza and Medeiros denied the incident. Since the refusal to reinstate took place on December 21, 1950, I believe this testimony to be immaterial to the issues herein and do not find it necessary to resolve the conflict.' As related above, Gabriel Botelho was employed by Southern Massachusetts Bus Lines, Inc. He was one of the employees who applied for reinstatement on December 21. However, since Southern Massachusetts Bus Lines, Inc., is not it Respondent to this proceeding, it will be recommended that Botelho's case be dismissed without prejudice! Accordingly, it is found that on December 21, 1950, Respondent Almei da refused to reinstate the employees listed in Appendix A (excluding Botelho) ; and that the Respondents continue to refuse to reinstate said employees, except that Re- spondents did rehire Manuel Amaral, Jr., on about January 26, 1950, and Luiz J. Jesus, Jr., during about April 1951, in violation of Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in Section III, above, occurring in connection with the operations of the Respondents described in Section I, above, D. D. Thomas and A. E. Thomas , d/b/a Thomas Brothers Wholesale Produce, 79 NLRB 982. 8 See footnote 6, supra. ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC . 511 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 respondents have engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondents by their course of conduct on and after September 22, 1950, refused to bargain collectively with the Union as the exclusive representative of their employees in a unit appropriate for the purposes of collective bargaining. Accordingly, it will be recommended that the Re- spondents bargain collectively, upon request, with the Union as the exclusive representative of their employees in the aforesaid appropriate unit, and that the Respondents embody any understanding reached in the course of such collective bargaining, upon request, in a written agreement , signed by the parties affected thereby. It further has been found that the Respondents on December 21, 1950, and thereafter, discriminatorily failed and refused to reinstate the employees listed in Appendix A, (excluding Botelho ) excepting that the Respondents did rehire Manuel Amaral, Jr., on January 26,1951, and Luiz J. Jesus, Jr., during April, 1951. It will be recommended that the Respondents offer each of the said employees, excepting Amaral and Jesus , immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges . It further will be recommended that the Respondents make whole each of the said employees for any loss of pay he may have suffered by reason of the Respondents' discrimination by payment of a sum of money equal to that which each would have earned as wages from the date of the discrimination to the date of an offer of reinstatement, or to the date of actual reinstatement as in the cases of Amaral and Jesus , less his net earnings during said period. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondents ' discriminatory action 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 which he would normally have earned for each such quarter or portion thereof, his net earnings , 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 . In accordance with the Woolworth decision,' it will be recommended that Respondents, 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 Respondents 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 Respondents are required to take some affirmative action to dispel the threat . It will be recom- mended, therefore, that the Respondents cease and desist from in any manner interfering with, restraining , or coercing their 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, I make the following : , OF. W. Woolworth Co., 90 NLRB 289. 512 CONCLUSIONS OF LAW 1. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1442, 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 employees named in Appendix A (excluding Gabriel Botelho), the Respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. All bus drivers employed by Respondents at their New Bedford terminal, exclusive of all other employees and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, Division 1442, at all times on and after September 21, 1950, has been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collec- tive bargaining. 6. By refusing to bargain collectively with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1442, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) 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. [Recommendations omitted from publication in this volume.] Appendix A Joseph Almeida Joseph Andrade Manuel Amaral, Jr. Gabriel Botelho Joseph M. Carvalho Joaquim A. DeValles Manuel M. Garcia John Jerome Luiz J. Jesus, Jr. Robert J. Lemay James Macedo Frank P. Machado, Jr. Jaime C. Maiato Augustine Le. Medeiros John Medeiros John A. Medeiros George T. Moniz Walter A. Myrick Theodomiro F. Rebello John P. Santos Antone F. Simmons Antone Souza Manuel Vieira Appendix B DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 : ALMEIDA BUS SERVICE AND ALMEIDA BUS LINES, INC . 513 WE WILL NOT in any manner interfere, with, restrain , or coerce our em- ployees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES of AMERICA, DIVISION 1442, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to,the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein 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: All bus drivers at our New Bedford terminal, exclusive of all other employees and all supervisors as defined in the National Labor Relations Act, as amended. WE WILL OFFER to the employees named below immediate and full rein- statement to their form or substantially equivalent positions without preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Joseph Ahneida Augustine Le. Medeiros Joseph Andrade John Medeiros Joseph M. Carvalho Joaquim A. DeValles Manuel M. Garcia John Jerome Robert J. Lemay James Macedo Frank P. Machado, Jr. Jaime C. Maiato John A. Medeiros George T. Moniz Walter A. Myrick Theodomiro F. Rebello John P. Santos Antone F. Simmons Antone Souza Manuel Vieira WE WILL make whole the following employees for any loss of pay suf- fered as a result of the discrimination. Manuel Amaral, Jr. Luiz J. Jesus, Jr. 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 term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. JOHN ALMEIDA, JR., d/b/a ALMEIDA Bus SERVICE, AND ALMEDIA Bus LINES, 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.