Missouri, Kansas & Oklahoma Coach Lines

In the Matter of MISSOURI, KANSAS & OKLAHOMA COACH LINES and INTERNATIONAL ASSOCIATION OF MACHINISTS In the Matter Of MISSOURI, KANSAS & OKLAHOMA COACH LINES and BROTHERHOOD OF RAILROAD TRAINMEN In the Matter of MISSOURI, KANSAS & OKLAHOMA COACH LINES and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, LOCAL DIVISION 1147 Cases Nos. C-257, C-308) R-383, and R-384. Decided November 2, 1938 Motor Bus Transportation Industry-Interference, Restraint , and Coercion: expressed opposition to labor organization : disparaging remarks 'about union; threats to close shop ; sponsoring activities of company-favored union-Unit Appropriate for Collective Bargaining : motorcoach employees or drivers; no controversy as to-Representatives : proof of choice - union authorizations- Collective Bai gaining: refusal to recognize representatives , as exclusive repre- sentative ; controversy with company-favored union , although no members of such union at time of request, alleged as excuse for refusal to bargain-Dis- crananat,on : discharges : for giving testimony tinder the Act ; for union activities to discourage membership in union ; charges of, not sustained as to seven employees-Reinstateinent Ordered: employees discriminatorily discharged- Back Pay: awarded-Investigation of Representatives: petitions for, dismissed because of order to employer to bargain. Mr. Ebner P. Davis, and Mr. Warren, Woods, for the Board. Mr. R. D. Hudson, and M11r. W. E. Hudson, of Tulsa, Okla., for the respondent. Mr. L. G. Fenn, of Tulsa, Okla., for the I.A.M. Mr. W. D. Nutter, and Mr. A. I. Robinson, of Kansas City, Mo., for the B.R.T. • Mr., C. M. Ruyle, of Springfield, Mo., for the Amalgamated. Mr. George Rose, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed May 28, June 7 and 15, 1937, by the Inter- national' Association of Machinists, herein called the I.A.M., the 9N.L R.B,No.55. 597 598 NATIONAL LABOR RELATIONS BOARD National Labor Relations Board, herein called the Board, by Edwin A. Elliott, Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated August 26, 1937, against the Mis- souri, Kansas & Oklahoma Coach Lines, Tulsa, Oklahoma, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices the complaint alleged, in substance, (1) that the respondent on June 15, 1937, and at all times thereafter had refused to bargain collectively with the I. A. M. as the exclusive representative of the employees of the respondent en- gaged as repair and maintenance employees, said employees con- stituting an appropriate bargaining unit, and a majority thereof having designated said I. A. M. as their representative for collective bargaining; and (2) that the respondent had discharged and refused to reinstate Lloyd W. Kifer, R. L. Harvey, and William Joe Ray for the reason that they had become members of the I. A. M. The complaint and accompanying notice of hearing were duly served upon the respondent and the I. A. M. The respondent filed an answer dated September 8, 1937, alleging that it had never been furnished with accurate information that the I. -A. M. had been designated as the representative for collective bargaining of its employees, in the unit of machinists, and denying that it had discharged Lloyd W. Kifer, R. L. Harvey, and William Joe Ray because of union activities. On June 21, 1937, the Brotherhood of Railroad Trainmen, herein called the B. R. T., filed with the Regional Director a petition alleg- ing that a question affecting commerce had arisen concerning the representation of the employees of the respondent, employed as bus drivers, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On July 20, 1937, the Amalgamated Association of Street, Electric Railway and Motor Coach Employees, Local Division 1147, herein called the Amalgamated, filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of the employees of the respondent employed as driv- ers, and engaged in preparing the 'busses for operating, shopmen, and repairmen, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On July 26, 1937, on the basis of these petitions, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, DECISIONS AND ORDERS 599 as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice; and the Board further ordered, pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, that the two cases based on the petitions of the B. R. T. and the Amalgamated be consolidated for,the purpose of hearing. On June 26, 1937, the I. A. M. filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of the employees of the respondent en- gaged as repair and maintenance employees and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the Act. On August 10, 1937, the Board acting pursuant to Sec- tion 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. Upon charges duly filed June 7, June 26, and August 14, 1937, by the B. R. T., the Board, by the Regional Director, issued a complaint dated August 25, 1937, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. In respect to the unfair labor practices, this complaint alleged, in substance, (1) that the respondent on June 15, 1937, and at all times thereafter, had refused to bargain collectively with the B. R. T., as the exclusive representative of the employees of the respondent, en- gaged in operating motorbusses, said employees constituting an ap- propriate bargaining unit, and a majority thereof having designated said B. R. T. as their representative for collective bargaining; (2) that the respondent had discharged certain employees, reinstated some without back pay, and suspended others for varying periods for the reason that they had become members of the B. R. T., thereby dis- couraging membership in a labor organization; and (3) that the respondent extended its facilities to the Amalgamated, a labor organ- ization, and furnished transportation to it, and encouraged member- ship therein. The complaint and accompanying notice of hearing were duly served upon the respondent, the B. R. T. and the Amalgamated. The respondent filed an answer on September 8, 1937, to the com- plaint dated August 25, 1937, in which it stated that it had not bar- gained collectively with the B. R. T. because of the controversy between the B. R. T. and the Amalgamated, and admitted that it had discharged or suspended certain employees as alleged, but denied that such discharges or suspensions were because of union, activities: 600 NATIONAL LABOR RELATIONS -BOARD On August 10, 1937, the Board ordered that pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, that the five above described cases be consolidated for the purpose of hearing. Pursuant to notice a joint hearing on the complaints and petitions was held at Tulsa, Oklahoma, on September 7, 8, 9, 10, 27, 28, 29, 30, and October 1, 1937, before W.' P. Webb, the Trial Examiner duly ,designated by the Board. The Board, the respondent, and the Amal- gamated were represented by counsel, the B. R. T. and the I. A. M. by representatives, and all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case in the matter of the respond- ent and the I. A. M., the respondent moved to dismiss the complaint. The Trial Examiner reserved ruling on the motion at the hearing, but denied the motion in his Intermediate Report, subsequently filed. During the hearing, counsel for the respondent having expressed a desire to enter into a discussion for the purpose of settlement and disposition of the petition of the I. A. M., the Trial Examiner granted a recess to permit the parties to prepare a stipulation. Soon after the resumption of the hearing, there was offered in evidence by counsel for the Board on September 8, 1937, and made a part of the record -without objection, a stipulation signed by all the parties, which provided as follows : (1) That the respondent recognized the "I. A.- M. as the exclusive bargaining agency for all of the employees in said unit in respect to rates of pay, wages, hours of employment or other conditions of employment and agrees to bargain with said I. A. M. in respect to such conditions of employment on request, within the meaning of the Act"; (2) that the Board might "certify in writing said I. A. M. as exclusive representative of said employees for the purposes of collective bargaining." On October 23, 1937, the Board issued a Decision and Certification of the I. A. M. as representative 1 of the respondent's employees engaged as mechanics or body workers, exclusive of those in a supervisory capacity or porters. On October 9, 1937, the Trial Examiner filed an Intermediate Re- ,port in the matter of the respondent and the 1. A. M. in which he recommended that the complaint be dismissed with respect to the al- legations that Lloyd W. Kifer, R. L. Harvey, and William Joe Ray, were discharged because of union activities. On October 18, 1937, exceptions to the Intermediate Report were filed by the I. A. M. The Board has reviewed all the rulings of the Trial Examiner on the motions and on objections to the admission and exclusion of evi- dence, and finds that no prejudicial errors were committed. Those rulings are hereby affirmed. The Board has reviewed the excep- 13 N. L. It. B. 879. DECISIONS AND ORDERS 601 ^tions to the Intermediate Report and, save to the extent that the findings below depart from those of the Trial Examiner, finds that the exceptions are without merit. The Board departs from the Trial Examiner's finding that Lloyd W. Kifer, R. L. Harvey, and William Joe Ray were not-discriminatorily discharged. - - - The hearing in the matter of the respondent and the B. R. T. was adjourned on September 10, 1937, and resumed on September 27, 1937. At this time, counsel for the Board moved to amend the com- plaint to add further allegations that the respondent had discrim- inatorily discharged and suspended certain additional employees, for the reason that they had joined the B. R. T., and had discharged J. D. Waddle because he gave testimony in a hearing before a Trial Examiner of the Board at Springfield, Missouri. A copy of the motion was duly served upon counsel for the respondent. The motion was granted by the Trial Examiner after the counsel for the respondent waived further notice. Counsel for the Board offered, without objection by the respondent, on behalf of the-Amalgamated, an amended petition for investigation and certification of the motor- coach operators employed by the respondent. During the course of the hearing the Trial Examiner granted the motion of, counsel for the Board to dismiss the complaint in so far as it alleged that the respondent had discriminatorily suspended E. L. Carney and W. P. Woods. On November 29, 1937, the Trial Examiner filed an Intermediate Report in the matter of the respondent and the B. R. T., in which he found that the respondent had engaged in unfair labor practices affect- ing commerce within the meaning of Section 8 (1), (3), (4), and (5) and Section 2 (6) and (7) of the Act. Exceptions to the recom- mendations of the Intermediate Report were thereafter filed by the respondent and the B. R. T. On January 10, 1938, a supplement- to the Intermediate Report was filed by the Trial Examiner in which he recommended that the allegations of the complaint as to Wayne Treaster be dismissed as he had been reinstated to his former position. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. These rulings are hereby affirmed. The Board has reviewed the exceptions to the Intermediate Report and, save to the extent that the findings below depart from those of the Trial Examiner, finds that the exceptions are without merit. The Board departs from the Trial Examiner's finding that Charles Akers was not discriminatorily discharged. (302 NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Missouri, Kansas & Oklahoma Coach Lines is a corporation or- ganized and existing under the laws of Oklahoma. It is engaged in the business of transporting by bus for hire, passengers, light express, mail, and newspapers, under regularly established tariffs through Oklahoma, Missouri, and Kansas. It carries about $12,000 worth of mail and newspapers a year. About 20 per cent of this mail and more than 20 per cent of its passengers are carried across State lines. The respondent makes connections with various other interstate bus lines, Santa Fe Trailways, Illinois, Pennsylvania, and Capital Greyhound Lines and others. The respondent has filed ap- plications for a permit from the Interstate Commerce Commission under the Motor Carrier Act of 1935. The respondent operates from 30 to 40 buses. Its employees are divided into the following groups : Shop employees, office employees, drivers, and ticket agents. At the time of the hearing, 19 were em- ployed in the garage and shop, of whom 11 were mechanics, 4 were in the body shop and 4 were porters. Forty-nine men were employed as bus operators and 10 as office employees. H. THE ORGANIZATIONS INVOLVED International Association of Machinists is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership machinists of various classifications, including mechanics and repairmen employed in garage and repair shops. Brotherhood of Railroad Trainmen was organized on September 23, 1883, and is a labor organization with a membership composed of vari- ous classes of employees in the transportation industry. Since 1933, it has admitted motorbus drivers to membership. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America is a labor organization affiliated with the American Federation of Labor. All employees of street and electric railways are eligible for membership, and in recent years it has also admitted bus drivers to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion About April 20, 1937, L. G. Fenn, a lodge representative of the I. A. M., started to organize the machinists employed by the respon- dent. R. L. Harvey signed an application for membership on April DECISIONS AND ORDERS 603 26, and Lloyd W. Kifer on April 28. On April 29, Bunce, the re- spondent's shop superintendent, asked Kifer about the men joining the I. A. M. and warned him that Allen, the president of the re- spondent, "would close the shop before he would recognize the Union." Bunce also told him that the men would obtain no advantage by joining the Union and paying a part of their salaries to that organiza- tion, as it would be unable to get them any raise in pay. He referred to the I. A. M. as "a God damned bunch of agitators." On another occasion, Bunce told Harvey that if he would give up his union card, he would be promoted to the position of shop foreman. The following day he was again promised the same position. C. F. O'Banion, who is still an employee of the respondent, testified that on June 4, 1937, when he made application for employment as a mechanic, Bunce asked him how he felt towards the I. A. M. Ap- parently O'Banion gave Bunce the impression that he did not belong to the I. A. M. as Bunce told him "he didn't want him to do like one of his drivers did-promise him that he wouldn't sign up with the Union and then sign up, like this other driver had done." Bunce also told him "that all they were after was just the money." Later, at the time of the organization of the Amalgamated, he remarked to O'Banion that he "had better join up," that "they were going to have that Union." Sometime about June 15, 1937, Ruyle, an organizer for the Amal- gamated, went to the respondent and asked permission to organize the drivers. The respondent apparently displayed an entirely dif- ferent attitude toward organization by this Union, for it saw in it the possibility of defeating organization by the I. A. M. and the B. R. T. Bunce took Ruyle to Stillwater, Oklahoma, in a company car, admittedly for the purpose of introducing Ruyle to some of the drivers. Bunce also took Ruyle to Springfield, Missouri, with that same object in view. At one time in this period Fleming, a bus driver, was in his bus, having just driven tip to the gas pump inside the respondent's garage in Tulsa, when Ruyle got into the bus and started talking about the Amalgamated. "He said the company had given him authority to come down and talk to the men about signing them up." Bunce came by and Fleming asked him about Ruyle's authority. Bunce stated "that the company give him the authority and that was the one they were going to recognize." This was denied by Bunce on the stand, although he admitted telling Fleming to "use your own judgment." His denial is unconvincing in view of the acknowl- edged assistance given to the Amalgamated in its organizational campaign. On another occasion Bunce asked Waddle, one of the bus drivers, about his attitude towards the B. R. T., and a little later told him to go 604 NATIONAL LABOR RELATIONS BOARD up to the Hudson Hotel, make application for membership in the Amalgamated, and vote for the officers. This also was denied by Bunce, but his efforts in behalf of the Amalgamated, as described above, make his denial unpersuasive. The respondent also gave the Amalgamated the right to the check- off on two pay days. The respondent's president, Allen, stated that this was done without his knowledge, and that he stopped it as soon as he learned of it. In view of the other activities of the Amalga- mated which were sponsored by the respondent, this statement is very unconvincing. It appears probable that the respondent stopped short of anything further only because charges were filed by the B. R. T: with the Board. We find that by the above actions, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges Lloyd W. Ki f er went to work for the respondent March 4, 1935. He. wasTa working foreman in the body shop, and apparently his work there was entirely satisfactory, as no criticism of it was voiced. On April 28, 1937, he signed an application for member- ship in the I. A. M., but he was not active in obtaining memberships. . The following day Bunce stopped him as he was leaving and talked about the I. A. M., as has been related above. He asked Kifer if he- had joined up with the I. A. M. Kifer replied that he had filed an application for membership. Bunce advised him that Allen "would close the shop before he would recognize the Union." Kifer understood that Bunce referred to the body shop. At this time, the respondent had been expecting to build three more bus bodies. On the morning of April 30, notices were posted on the window that three White used buses were for sale. On the evening of April 30, the men in the body shop were laid off. Spur- gin, the secretary-treasurer of the respondent, testified that the re- spondent was losing money on the body shop and was "short of money." Allen explained "that their jobs were not standing up" and their "competitors were coming out with what is known as a snub-nosed job." Finally it was decided to cut out the body shop for the time being. Allen also related that one of the big transpor= tation companies had recently "laid off their whole coach shop of about 30 men." Spurgin stated that he had advised that they keep a-small, force there-enough to do repairs, but he had been overruled. About a week after the shut-down, the respondent called back two men to work in the body shop. Spurgin stated on the stand, "We thought they were going to save money by keeping the whole body DECISIONS AND ORDERS 605 works shut down for a while, but, we found out we couldn't, and we had to pay some of them just the same." Spurgin further ex- plained that this reversal of policy was due to the wrecking of one of their busses in a collision with a truck. The side of the bus was torn off, and the two men were called back to work on it. One of those called back, Woodward, did not belong to the Union and had less seniority than Kifer. The reason that Allen gave for not recalling Kifer, who had been a working foreman and was prob- ably one of the best workers, was that the respondent did not wish to pay him 551/^¢, an hour and "he was not satisfied with 551/0." Allen also stated that he "didn't think" Kifer would- work for 500 an hour, but he had made no effort to find out. On May 15, 1937, there was a meeting at which the Regional Director for the Sixteenth Region, a representative of the respondent, Fenn, the I. A. M. organizer, and Kifer were present. It was agreed to pay the men who were laid off 2 weeks' back pay, and that in the event the respondent found it necessary to call others back to work, they would be recalled in, accordance with their seniority. This was done according to Allen's testimony because -"they charged we laid these men off-on account of union activities. To settle the dispute we came to an agreement and paid all the men in the body shop up to that date for 2 weeks that they hadn't worked in our shop." This statement indicates very clearly that the settlement was for the lay- off, and not for the failure to call Kifer back when the shop was reopened. A close consideration of all the testimony concerning the conference reveals that nothing was said on that occasion about any discrimination against Kifer, or about giving Kifer the- place of Woodward. On cross-examination, Kifer was asked • whether he understood that the controversy was settled by the payment of 2 weeks' back pay. He said that he did, and that so far as he personally was concerned he was satisfied. The answer of the respondent to the complaint, however, does not plead this alleged settlement in rebuttal of the allegations of the refusal to reinstate Kifer. It seems obvious; therefore, that the re- spondent did not at the time regard the payment of 2 weeks' back pay as an adjustment of Kifer's grievance. We cannot, therefore, take it for granted that when Kifer stated he was satisfied with the pay- ment of 2 weeks' back pay, he meant that he felt he had agreed to settlement of a claim for reinstatement not referred to. The respondent has given no convincing explanation of its failure to offer Kifer reemployment when it reopened its body shop. While Kifer might have been loath to take 50 cents an hour instead of 551/2 cents, he should have been given the opportunity to accept an offer of such employment. - It is reasonable to" assume that an employer 606 NATIONAL LABOR RLLATIONS BOARD would prefer to employ the most experienced and capable employee rather than one less qualified. Kifer was a working foreman, which is an indication that his ability in directing and doing the work was probably the highest among all the workers. The only reason that can be deduced from the record for the failure to recall Kifer was his membership and activity in the I. A. M. We find that the failure to call Lloyd Kifer back to work was due to his union affiliation and activities. Kifer has earned substantially as much money since his discharge as he would have earned if he had continued working for the respond- ent. He stated at the hearing that he would go back to work for the respondent, as he liked "that kind of work." R. L. Harvey went to work for the respondent for the first time in 1932 or 1933. He worked on several other occasions, the last time being in December 1936, when lie was called from out of the State. He was employed as a mechanic and worked first on the shift from 7 p. in. to 4 a. in. Later he was changed to the shift from 10 a. in. to 7 p. in. On March 1, he was again changed to the shift from 8 a. m. to 5 p. m., which appears to have been the most desirable shift. Harvey joined the I. A. M. on April 26, 1937, and was very active in soliciting members,. making no secret of his membership. He was also interested in the organizing activities of the B. R. T., as appar- ently the two organizations worked together in an effort to organize all the employees. Bunce, the superintendent, told him, when the shop foreman left the employ of the respondent, that, "if I would get right and give up my card, he would give me" the job as shop foreman. This was not denied by Bunce. Harvey testified that thereafter his treatment was different. The respondent tried to get him to work an excessive amount of overtime, although there were other men who were capable of handling the tasks but who were not asked to do extra work. His work was obvi- ously satisfactory, as he had been called back to work for the respond- ent in December and was asked to do extra work. Spurgin admitted on the stand that he was a good mechanic. On June 4, 1937, Harvey was notified that his work had been changed from 8 a. in. to 5 p. in., to 10 a. in. to 7 p. in. He asked Bunce the reason. Bunce told him "that was the orders and he could work or else." O'Banion, a man with less seniority, was put on the 8 a. in. to 5 p. in. shift. According to the usual practice, a new employee would be put on night work, and as his seniority grew, he would finally reach the 8 a. m. to 5 p. in. shift. Spurgin, secretary-treasurer of the respondent, testified that the change was made because Harvey was an old man there, that he knew when the busses left, and that there was a gap from 5 p.m. to 7 p. in. when no foreman was, there. When Harvey was told about this change, he became very angry, DECISIONS AND ORDERS 607 talking very loudly, and cursing Bunce. Finally, Harvey said he would come in at 10 o'clock. According to Spurgin, Harvey so shocked him that he ordered Harvey's discharge. We find that Harvey was discharged because of his union activities. Harvey has not been employed since his discharge on that date, June 5, 1937. William Joe Ray, a mechanic, went to work for the respondent April 2, 1937, and was discharged June 11, 1937. The respondent's answer alleges that Ray was let go because he was discharged by his previous employer for stealing. Spurgin testified that Ray was a good mechanic, and that he never stole anything from the respondent, but that he was discharged on account of trouble which he had had with the Southern Kansas Stage Lines when in its employ. Spurgin explained that the respondent had several thousand dollars' worth of drills, bits, and parts and "it isn't a good thing to have a thief around." Spurgin denied that he had discharged Ray because of his union affiliation, but stated "that they had too much at stake to have him working in the shop." Ray, while working for the Southern Kansas Stage Lines at Muskogee, Oklahoma, had sold junk which had accumulated, without any authorization from the management. As a result of this sale, he had a controversy with the company because he had not given it the proceeds. When he first applied to the respondent for work, about March 23, 1937, he talked with Hicks, the traffic manager, whom he had known about 5 years-both of them having worked for the Southern Kansas Stage Lines of the Santa Fe Trailways. Hicks had sent word to him to come over to the shop as there might be employment for him. In his conversation with Hicks, he related the facts about the trouble with his former employer in Muskogee. Hicks then sent him to see Spurgin. According to Ray, Hicks stated that he would talk to Spurgin about this difficulty. Hicks admitted that he had talked to Spurgin and did not deny that he had discussed this affair with him. Spurgin testified that Hicks had told him that Ray was coming down to see, him but (lid not mention any trouble. Spurgin stated that at the time he had hired Ray, he had talked to him about the kind of work he could do but that nothing was said about any controversy which he had had with the Southern Kansas Stage Lines. He claimed that he first heard about it from Gammon, superintendent of the Southern Kansas Stage Lines, after Rev had been working for the respondent about a month. Spurgin asked Gammon about it several times, but all he would say was, "He had some trouble over there. Why don't you find out over there about it?" So Spurgin "hired a man to go over and check the records." 608 YA-iIO'NAL LABOR RELATIONS BOARD The detective went to Muskogee and talked to the foreman, 'Sherrill, who told him that Ray had confessed selling some parts. The in- vestigator testified at the hearing, and his report was submitted in evidence. From Gammon the investigator learned that Ray had- been involved in selling some junk, that he had received half the proceeds, that the Company made him give the money back to it, and that later on he took $50 or $60 worth of new material. Ray denied being told at the time lie was discharged by his pre- vious employer that he had been charged with larceny or with taking drills and bits. Ray stated that, on the contrary, Gammon, of the Southern Kansas Stage Lines, had asked him about this junk and that he had told Gammon he had sold it and had paid Gammon for it. He further stated that he had made no secret of selling it. Ray had worked for the Southern Kansas for 4 years and was Foreman of the shop. Harvey testified that after Ray went to work, Bunce had remarked about Ray, "I guess I got a good one," and then quite pointedly with regard to the difficulty, that "he, had a little trouble down there, in Muskogee with the Southern Kansas but we didn't pay any attention to that." Harvey also stated that Bunce told him that Ray "had sold a little junk down there" at Muskogee, and that "everybody knew it the next morning." When Ray was called by Hicks to see about going to work with the respondent, it is natural to presume that Hicks, who had known him for some years, would ask him, if he did not already know, why he left the Southern Kansas Stage Lines, particularly since he had been a foreman there. Hicks did not deny that he had discussed Ray's'trouble with him. We conclude that Hicks did talk the matter over with Ray and with Spurgin too, and that they decided it did not amount to anything important. One fact which confirms this belief is that in the report submitted by the investigator, Sherrill, the foreman at Muskogee is quoted as recommending that another employee of the respondent, previously, employed by the Southern Kansas Stage Lines„be «.atched.as a "real thief." The suggestion in this report is that the latter did the stealing and not Ray. Yet Ray was discharged by the respondent, and the other employee, who was a painter, was called back to work after the body shop was reopened and is still in the employ of the respondent. Ray joined the I. A. M. about April 26, 1937. Upon being ques- tioned as to whether he disclosed the fact of his affiliation, he stated that he "didn't make any secret of it," and "didn't advertise it." Harvey, who was well known as a union member and was very active in behalf of the Union, associated a great deal with Ray,-the two rooming, eating, and working together. Ray was not active himself DECISIONS AND ORDERS 609 in behalf of the Union , but his close association with Harvey marked him as a union man, and one likely to be opposed to the respondent's plans to foist its choice of a union on the employees. We find that'the respondent has discriminated against Ray because of his union affiliation. - Vayne Treaster went to work as a bus driver for the respondent on April 3, 1934, and worked continuously until March 9, 1937, the date of his discharge . Treaster has been reemployed by the respond- ent and asked to have the complaint dismissed as to himself. The Trial Examiner recommended that the allegations of the complaint as to Treaster be dismissed without prejudice . We, concur in this action. Jack Roglitz was employed as a bus driver by the respondent some time prior to February 1937. Previous to this employment, he had worked for the Santa Fe Trailways, but had been "pulled out" of service on account of his accident record. On February 9, 1937, while employed by the respondent, he had an accident in which he injured a little girl. He signed a B. R. T . authorization May 28, 1937 , and was active with Charles Akers, one of the bus drivers, who was also laid off, in- obtaining signatures to such authorizations . He was discharged for the first time on June 5, 1937. The respondent's answer alleged that his employment was termi- nated because the insurance company had investigated the accident on February 9, 1937 , and had requested his discharge . Another rea- son 'given `for the discharge was the fact that he had been making a practice of coming late to start his 4: 00 a. in. run. As a result of a conference between the respondent , counsel for the Board, Roglitz, and Charles Akers, Roglitz was reinstated on July 3, 1937. The respondent's answer further alleged that on July 18, 1937, the respondent learned that Roglitz had failed to stop at Chelsea on his run and had failed to pick up a passenger . He Was discharged for the second time on'July 20, 1937. It was stipulated at the hearing by the Counsel for the Board and the respondent that Roglitz was a member of the B . R. T., that this fact was known to the respondent, and that contrary to company rules he had passed through Chelsea without stopping, thus failing to pick up a passenger. The failure to stop at Chelsea was the first serious thing called to Allen's attention "since he had been reinstated. There was testimony from some of the drivers that it was not on the morning schedule to stop at Chelsea. Several drivers testified that they had been instructed that it was not necessary to stop at Chelsea on that run. It was admitted , however, that, if such instructions were given, they were given by other drivers and not by anyone in 610 NATIONAL LABOR RELATIONS BOARD a supervisory capacity. Allen denied any such instructions were ever authorized by the respondent. We find that the discharge of Jack Roglitz was not due to his union activity. Charles Akers, a bus driver, was employed by respondent for about 31/2 years. He was laid off May 29, 1937, until July 4, 1937. He first got in touch with the B. R. T. organizers early in April 1937, and signed a B. R. T. authorization April 30, 1937. Robinson, the B. R. T. organizer, gave him 40 or 50 blank B. R. T. authorizations to be signed by the men, which he was active in taking around among the drivers for signature. These he carried with him in a little kit which he had in the bus on May 24, 1937, when he came off his run. Going into the office to settle his receipts, he left his kit behind. When he came out he found that Allen had taken his bus. He walked down to the garage and about 30 or 40 minutes later Allen returned to the garage with Bunce.. Allen explained the taking of the bus by stating, "I was complain- ing to Mr. Spurgin about the conditions of busses, in regard to the maintenance, some of the rattles in coaches, and so on, and Charlie Akers' bus was standing there ... I drove the bus to the garage and discovered certain rattles and I called Mr. Bunce to go with me so he could in turn see what rattles there were and see that they were fixed." Allen could not recall definitely when he had ever taken a bus out before, although he recalled vaguely that, with Akers, he had driven to a place called Sand Springs a bus which had just come back from the factory. He was not able- to give any particulars as to when this occurred. He also had some recollection of taking the bus of a driver named King to try it out. No date or approximate time was given for this trip. He could not recall any other instances. At the time Allen took the bus there were eight authorizations in his kit, including those of McNutt, , Waddle, Krebbs, and Owen. When Akers retrieved the kit he found the authorizations were changed around and not in the same shape in which he had left them. Allen denied disturbing Akers' kit. On .the following day, Akers was called into the office and, told to stop the practice of using for his personal needs the cash fares which he picked up on his run, but to turn them all in at the time he made his report. The bus drivers had been permitted to use the cash fares collected on the run; which' they reported at the time they were col- lected, but were assessed a 25-cent penalty for each time they did it. These amounts were then deducted from their pay at the end of the week. ' There was no question of dishonesty involved in this, accord- ing to the respondent's' own testimony. -DE,CISIONS AND ORDERS 611 On May 29, 1937, Akers was "pulled off" by Spurgin. He was told that this was done because there was a report that on his previ- ous run he had driven over all the railroad crossings between Tulsa and Springfield without stopping. This charge was denied by Akers. On the following Tuesday he was told that the respondent "would never work" him again. As a result of the conference already men- tioned in connection with Roglitz's case, Akers was reinstated on July 4, 1937. He did not receive any pay for the period when he was laid off and he denied that there was any discussion of back pay at the conference. Although Allen did not testify directly at any time that Akers was discharged for using cash fares, the implication from his testimony is that this was the ground for his discharge rather than any stated at the time of his discharge. Akers has been working continuously since his reinstatement on July 4, 1937, although he stated that he was working on a less desir- able`r61. Akers was one of the most active men soliciting memberships in the B . R. T. His activity was clearly a threat to the respondent's efforts favoring the Amalgamated as the union for its employees. The respondent had allowed its employees to use their cash fares, upon the payment of a small penalty. The respondent suddenly de- cided to make an example of Akers, and discharged him. In view of the long indulgence by the respondent of the custom of using cash fares, the extreme. character of its remedy and the swift change of policy we think that the respondent was striking at something more obnoxious to it than this-practice-namely, the B. R. T. - We find that Akers was discharged on May 29, 1937, for union activity. Fred Gn ifth went to work as a bus driver for the respondent around the last of May 1937. He had driven a bus for the Blue-bird System for 15 mouths before. . On the respondent's lines he worked on the "extra board;" %vliich consisted of the men who take runs when the regular drivers are absent. He was discharged on July 22. Griffith signed a B. R. T. authorization about June 1, and became a member about June 7 or 8, paying dues, for which he received a receipt. He kept this receipt in.his pocket with his .papers. Griffith testified that about July 15 he either lost the receipt around the garage or turned-it in-with his papers at the office. He believed that he had turned the receipt into the office, because it would have been returned to him if he had dropped it in the garage. Griffith was active in discussing the B. R. T. with the other drivers, even ,with Hayes, Bunce's-son-in-law, who was very active on behalf of the Amalgamated. He told Ruyle, the Amalgamated organizer, that he believed 'in the B. R.- T: and had signed a B. R T. authoriza- tion. In spite of this he was persuaded to sign for the Amalgamated, 1340d8-39-vol ix--40 612 NATIONAL LA13OR RELATIONS BOARD upon being told that he "had better sign it" if he "wanted to keep working." At the time of voting for officers of the Amalgamated, Bunco told him whom to vote for. This was denied by Bunce, al- though he admitted discussing the voting with Griffith. Griffith related that at Oklahoma City on July 22 he took over a bus which had been newly overhauled at a cost of about $1,000. Before he left Oklahoma City he had filled up the radiator with water; but 12 or 14 miles out at Edmond he noticed it was getting hot. There he again put water in the radiator, but it heated up before he had driven very much further. The motor never pounded nor was there any steam at any time, and he expressed doubt that the head was cracked by these circumstances. He related that as he drove into the bus station at Tulsa, "they asked me how the bus was running and I told them it was running hot. Before I had a chance to say any more, they said `You have ruined the bus."' Bunce told him, he recounted, that he might as well "keep on going." Bunce testified that when Griffith brought his car in With the hot motor he told him that "if that motor was burned up to kiss himself goodbye and keep going." Bunce claimed that he did not discharge Griffith, but that Griffith walked out and quit. Bunce admitted, however, that he would have recommended "that he be discharged if he burned that motor up." Bunce explained that he put Coleman, one of the extra drivers, on Griffith's run because Griffith did not come back, although Griffith testified that he did not leave immediately but sat around for a while and that Coleman was called to take his run before he left. Griffith stated that he then,. went to the office and turned in his cap and badge, without anyone I elling him that 'he was discharged, aside from the remark made to him "to keep going." Bunce also stated that he could tell, by the way it was cracked, that the motor had been broken by having hot and cold water poured on it. Griffith testified that Forest Holbrook, Wilkerson, and Cowan broke -heads..but were-still working, although Cowan had to' pay for the'one he broke: We are, not convinced that the respondent in' discharging Griffith was- motivated, -,by his union, activities. We find that the respondent in discharging Griffith did not discriminate against him because of his union membership and activity and the allegations of the complaint with respect to him will be dismissed. T. C. McNutt was employed as a bus driver for the respondent for about 2 years until he was discharged on August 24, 1937. He joined the B. R. T. on July 1, 1937, having signed an authori- zation May` 20, 1937. He testified he was "instrumental in getting quite a number of the boys to sign up, sign authorizations with the Brotherhood, and keeping them informed as to what progress we have been making in organizing the Brotherhood." He signed an appli- i)EGiSio^s AND ORDERS 613 cation for the Amalgamated because of "the pressure put on" him. He said that it was known that lie was a member of the B. R. T. His authorization was in Charles Akers' kit, when this appears to have been opened by Allen on May 24, 1937, as described above. Two or 3 days later, he was notified to see Allen. As Allen was away, he went to see Spurgin and Hicks. At this meeting his re- fusal on one occasion to carry a bag for a lady was brought up. He was also asked about an occasion when the driver's window had been closed by a passenger on a very hot day and he had opened it. These matters had occurred 4 or 5 months before. On July 6, 1937, he was laid off for 30 days. After 30 days' suspension he went back to -work on August 6, 1937. On August 19, 1937, he slammed the door of the bus on a man's arm. He was accused of doing this deliberately. He made no report of the incident nor did he obtain the names of any witnesses. On Au- gust 20-lie was taken off his run, and he was discharged on August 24. On September 7 or 8, 1937, he asked Bunce for permission to post a notice regarding the B. R. T. Spurgin refused to allow it, al- though the Amalgamated had posted a notice on the bulletin board. Allen denied that he had discharged McNutt for his union activi- ties, but claimed that he laid him off on account of his slamming the door, failing to get any evidence in regard to the incident, and because of his discourtesy to passengers. Allen stated that McNutt might deliberately smash a person's arm if he got "mad." Two em- ployees who witnessed the incident said the slamming of the door was deliberate. Wilkerson, one of these employees, testified that McNutt had his back turned when the door was closed and that he did not get out afterwards to investigate the occurrence. Wilkerson related that he spoke to the man about it, who said his arm was probably bruised but refused to roll up his sleeve to see what condi- tion it was in. Allen testified that McNutt was an unsatisfactory employee all the time, that he had had several accidents which were side-swipes, that "we had reason to fire him practically since he went to work for us," that he knew McNutt had been disciplined ever since lie came with them, and that very few of his checks had not been reduced by fines imposed for infractions of rules. The stubs of several of his checks were introd;'uced by counsel for the Board but these did not show that any fines had been imposed. Allen explained one of the nota- tions on the stubs as indicating four fees for fines. He also stated that he thought that McNutt had been suspended about a year or so before, but was vague in telling about this. Allen further testi- fied that he had talked to McNutt about 36 times in 2 years about matters of discipline or his driving. We are not convinced that the respondent in discharging McNutt was motivated by his union ac- 614 NATIONAL LABOR RELATIONS BOARD tivities. We find that the respondent in discharging Griffith did not discriminate against him because of his union membership and activity and the allegation of the complaint with respect to him will be dismissed. Jack 1frebbs, before his discharge, worked as a bus driver for the respondent on two occasions amounting to about 2 years altogether. He signed a B. R. T. authorization on May 1, 1937, at Akers' request. Akers had Krebbs' authorization in his kit in his bus on May 24, 1937. Krebbs was active with Akers on various occasions securing authoriza- tions from other drivers. He assisted in organizing work for the B. R. T. on the Springfield and St. Louis division. The respondent's answer alleged that Krebbs was discharged on May 27, 1937, because "he undertook to drive his'bus" "while under the influence of liquor, and that he was discharged for trying to drive his bus in that condition." - Krebbs did not appear at the hearing because he was in Homer, Louisiana, and it was impossible for him to attend. Allen testified without contradiction that Krebbs had previously been discharged for drinking, and was put back to work on condition that lie never ' drink again while employed there. Allen denied that he had discharged him on account of his union membership. We find that Krebbs' discharge was not due to his union activi- ties. - - R. D. Owen went to work as a' driver for the respondent about March 1, 1937. On May 20, 1937, lie signed a B. -R. T. authorization, which Akers had with him in,his kit on May 24, 1937. On June 21, 1937, as he was sitting in the bus in the garage he signed an' Amal- gamated application at the solicitation of Ruyle, the Amalgamated organizer , in the presence of Bunce. He was active in discussing the B. R. T. around the garage and' station, and made no effort to hide the fact that he was for the B. R. T. He had had three accidents while he worked for the respondent. On April 21 lie had an accident in which a woman lost her life. No claim was filed against the insurance company on account of it-,° however. In the second accident about four or five persons were cut by flying glass. His third accident occurred on September 1, 1937, when no one was seriously' hurt but one person was scratched. The' bus, however, was damaged badly. He was 'discharged September 7; 1937. At this time Bunce gave him "the impression" that it was not his "fault," although Hicks told him 'later that lie was being dis- charged on account of too many accidents. Owen stated that these accidents were all "non-chargeable accidents." - Bunce stated on the stand that lie had interceded -for Owen when he was discharged but that-" Hamm, the' insurance engineer, had DECISIONS AND ORDERS 615 told him "to pull" Owen off, that he had had too many wrecks and if he was kept on somebody would get badly hurt. We find that Owen's discharge was not due to union activities. Lee Fleming was first employed by the respondent on June 3, 1937. He had been previously employed by the Southwest Missouri Rail- road Company for about 8 months. On June 15, 1937, he signed a B. R. T. authorization. In addition, he talked to several men about signing up with the B. R. T. and told them the advantages of the B. R. T. insurance. He also discussed the B. R. T. with Hayes, who was a son-in-law of Bunce, and who was very active with the Amal- gamated. He stated that it was well known that he was in favor of the B. R. T. Fleming also testified that Ruyle, the Amalgamated organizer, got in his bus and told him that the Company gave him the "authority" to organize the drivers and 'that Bunce came along and confirmed it. This was denied by Bunce at the hearing, who said that he had told Fleming "to use his own judgment." In the course of 2 months Fleming was involved in four accidents. On July 9 he was in an accident in which the bus was damaged and which cost the Company $3,000 to settle. A second accident oc- curred on July 31, 4 miles east of Vinita. He claimed that a man crowded him off the road. This cost the Company $100 to settle. The report, he claimed, did not show that he was at fault. His third accident occurred on August 9 between Cleveland and Pawhuska. He was going down a curve when his brakes failed him and he turned his bus into a fence off the road. Several passengers were bruised or scratched. The bus had been in bad shape previously. On August 31, 1937, he ran over a calf. He was discharged on September. 3, 1937. Bunce told him he was going to put him on another run, but then he later called him and told him he was discharged. Bunce claimed that Fleming was discharged because Hamm, the insurance engineer, had requested it. We find that Fleming's discharge was not due to his union activi- ties. John D. Waddle was first employed by the respondent as a bus driver April 1, 1937. He claimed that he was discharged on August 24, 1937, for giving testimony under the Act. He signed a B. R. T. authorization about the last of May 1937. He had discussed the Union with the other drivers. Waddle had worked for the Missouri-Arkansas Coach Lines, which operates out of Springfield, Missouri. At the Board's hearing in Springfield in Matter of lllissouri-Arkansas Coach Lines, Inc. and the B. R. T.,2 held between July 29 and August 3, 1937, he testified against-the respondent involved in that case. There was testimony 2 7 N. L R . B. 186. 616 NATIONAL LABOR RELATIONS BOARD that Floyd Jones, president of the Missouri-Arkansas, and- the presi- dent of the respondent were very good friends, that the two Com- panies had business connections and a working arrangement whereby the respondent used the Missouri-Arkansas Coach Lines station and garage in Springfield. - At the time of Waddle's discharge, Hicks talked to him about a woman passenger whom he had carried without a ticket from Vinita to Springfield. It appears that there is it rest room at Vinita where passengers get off and where some transfer to buses from Kansas City. The passenger in question had a ticket for Kansas City. Ac- cording to Waddle's testimony, he had checked the passengers off and on, including this particular passenger. He stated that Coleman, one of the drivers for the respondent, who was riding as an extra driver, put her back on the bus. Coleman was not called by the respondent to deny this. The bus drivers are supposed to check the passengers at every sta- tion. There are eight or nine stations between Vinita and Spring- field. Three or four of them may be passed without stopping but Waddle did not recall how many times he checked on that trip nor did he know whether he or Coleman checked the passengers. He admitted that he did not check them at the stations where they did not stop. Waddle stated that he never heard of anyone getting dis- charged for carrying a passenger beyond his station. He bought a ticket for the woman at Springfield and made arrangements for her to be taken on to Kansas City. The facts of this incident, which happened before the hearing in Springfield, were obtained by the respondent from the "checker's" 3 report. The respondent allegedly discharged Waddle because he carried a passenger beyond a station. What normally might be the basis for a reprimand, was taken as grounds for discharge. Waddle had worked for the Missouri-Arkansas Coach Lines, Inc., for 3 years and apparently was a good driver. It is not probable that the respond- ent would have discharged him over a trivial mistake. The close business and personal connection between the respondent and Mis- souri-Arkansas Coach Lines discloses the reason actuating the re- spondent. Waddle had given damaging testimony against the other Company. This appears to have been the real reason for the dis- charge and not his manner of performing his duty. We find that Waddle was discharged because he gave testimony in a hearing of the Board. Waddle was earning about $130 a month when he was working for the respondent. He has not been employed since his discharge. 'Checkers ' ride the buses to check on the drivers as to the observance of the rules and regulations. DECISIONS AND ORDERS 617 C. Refusal to bargain collectively with B. R. T. 1. The appropriate unit The complaint alleges that the respondent refused to meet with the duly authorized representative of the majority of its employees en- gaged in operating motor buses and to bargain collectively with such representative. The answer admits that the respondent has not bar- gained with the B. R. T. as representative of the majority of the em- ployees engaged in operating motorbusses , but sets forth that it has failed to bargain with the B. R. T. solely because of the fact that a controversy exists between the Amalgamated and the B. R., T. The petition of the B. R. T. alleges as an appropriate unit the motorcoach operator employees or drivers employed by the respondent. The original petition of the Amalgamated alleges that the operating employees including not only the drivers but also all employees en- gaged in preparing the buses for operation , shop men, and repair men, should be in the unit. However, at the time of the hearing on September 8, 1937, counsel for the Board, the respondent and the Amalgamated, and the duly authorized representatives of the I. A. M. and the B. R. T., entered into a stipulation which was made part of the record without objection , as follows : It is hereby stipulated by and between counsel or duly author- ized representatives for the respective parties herein that the Board may make the following findings of fact. 1. The employees of respondent engaged as mechanics or body workers in maintaining buses used in the operation of respondent's business, exclusive of those engaged in a supervisory capacity or porters at its place of business in Tulsa and Stillwater , Oklahoma constitute a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act.4 Later, on September 27, 1937, an amended petition for investigation and certification of representatives pursuant to Section 9 (c) of the Act, was filed on behalf of the Amalgamated which reduced the scope of its original petition to the respondent's employees employed as motorcoach operators or drivers. We find that all the motorcoach operator employees or drivers, ex- cluding office workers, employees engaged in preparing the busses for operation , shop men; and repair men, and those . engaged in supervisory duties, constitute a unit appropriate for the purposes of collective bar- gaining and that such a unit insures to the employees the full benefit of their right to collective bargaining and otherwise effectuates the policies of the Act. -. * 3 N. L. R B 879 618 NATIONAL LABOR RELATIONS BOARD 2. Representation by the B. R. T. of the majority in the appropriate unit The respondent employs about 49 bus operators, exclusive of clerical, supervisory staffs, and employees engaged in preparing the busses for operation, shop men, and repair men. At the hearing the B. R. T. introduced 25 authorization forms signed by drivers employed by the respondent, showing that on June 7, 1937, the day that the B. R. T. wired the respondent asking for a conference, the B. R. T. represented _ a majority of the drivers employed by the respondent, and that on June 15, 1937, when the B. R. T. was advised by Allen that it had not gone through the proper procedure, it had two additional authorizations. On behalf of the Amalgamated, 48 applications for membership were introduced at the hearing. One of these is dated June 18, 12 are dated June 19, two June 20, 18 June 21, and the remaining, later. The respondent has not challenged the claim that the B. R. T. represented a majority of the bus drivers on June 7, but in its answer pleads ignorance as to which union it should bargain with. No evidence was introduced at the hearing that the Amalgamated had obtained any members among the respondent's bus drivers prior to June 18, 1937. The Amalgamated,,as is pointed out above, sub- mitted at the hearing applications signed by a majority of the bus drivers at a later time. In view of the acts of the respondent, described in Section III (A), we find that the Amalgamated was not freely designated as a bargaining agent by the majority of the respondent's employees. We find that on June 7, 1937, and thereafter, the B. R. T. was the duly designated representative of the majority of the employees in the appropriate unit. Pursuant to Section 9 (a) of the Act, it was, therefore, the exclusive representative of all the employees -in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain On June 7, 1937, Nutter, the representative of the B. R. T., sent a telegram to Howard W. Allen, president of the respondent, advising him that the bus operators had selected the B. R. T. as their repre- sentative for collective bargaining, and asking him to advise Nutter as to the time when it would be agreeable for him to negotiate con- cerning a contract. In reply, on June 15, 1937, Allen sent a telegram to Nutter, in which he stated, "You have not shown through the proper procedure that you represent a majority of our employees." DECISIONS AND ORDERS 619 On June 15, 1937, Robinson, organizer for the B. R. T., made several efforts to meet with Allen but was told that he was out of town. On June 27, Nutter met with Davis, Regional Attorney of the Board, and Davis on that date transmitted Nutter's request to Allen for a meeting between the respondent and the B. R. T. The B. R. T., however, was never successful in entering into any negotiations with the respondent. The answer of the respondent pleads that it has failed to bargain with the B. R. T. solely because of the fact that a controversy exists between the Amalgamated and the B. R. T. That this was not the real reason for the refusal to bargain is shown by the fact that on June 7, 1937, when the respondent was asked by the B. R. T. to meet with it, and when the B. R. T. represented a majority of the em- ployees, the Amalgamated had not obtained a single application for membership from the bus drivers. On June 15, 1937, the respondent refused, by telegraph, as described above, to meet with the B. R. T. On this later date the Amalgamated was still without any members among the respondent's employees, while the B. R. T. still represented a majority of them. It appears something more than a coincidence that on the very day that the telegram was sent to the B. R. T., Ruyle, organizer for the Amalgamated, appeared on the scene and was given the complete cooperation and encouragement of the respondent in his effort to organize the drivers. We find that the respondent, on June 15, 1937, and at all times thereafter, refused to bargain collectively with the B. R. T. as the representative of its employees engaged in operating motorbusses in respect to rates of pay, wages, hours of employment, and other conditions of employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, 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. THE PETITIONS In view of the Board's findings in Section III (C) above, as to the appropriate bargaining unit and the designation of the B. R. T. by a majority of the respondent's employees in the appropriate unit as their representative for the purpose of collective bargaining, it is not necessary to consider the petitions of the B. R. T. and Amalga- mated for certification of representatives. Consequently the peti- tions for certification will be dismissed. 620 NATIONAL LABOR RELATIO2\S BOARD THE REMEDY We have found that Lloyd W. Kifer, R. L. Harvey, William Joe Ray, and Charles Akers were discharged by the respondent because of their-union-affiliation and activities. We have also found that J. D. Waddle_ was discharged by the respondent because he gave testimony under the Act. Since these discharges constituted unfair labor prac- tices, we shall order that the men be reinstated with back pay. We shall also order the respondent to bargain collectively with the B. R. T. as representative of its bus drivers. Prior to the hear- ing many of the members of the B. R. T. joined the Amalgamated and by implication renounced their B. R. T. affiliation. We have found that such action was the result of the respondent's unfair labor practices. To refrain from ordering the respondent to bargain col- lectively with B. R. T., would be to hold that the obligation of one provision of the Act may be evaded by the successful violation of another; that the freely expressed wishes of the majority of the em- ployees may be flaunted if the employer brings to bear sufficient interference, restraint , and coercion to undermine the representative's majority support. - Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings , the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists , Brotherhood of Rail- road Trainmen, and Local Division No. 1147 of the Amalgamated -Association of Street , Electric Railway and Motor Coach Employees of America are labor organizations , within the meaning of Section 2 (5) of the Act. 2. The respondent by discriminating in regard to the hire and tenure of employment of Charles Akers, thereby discouraging mem- bership in the B . R. T., has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 3. The respondent by discriminating in regard to the hire and tenure of employment of Lloyd W. Kifer, R. L. Harvey, and William Joe Ray, thereby discouraging membership in the I. A. M., has en- gaged in and is engaging in unfair labor practices , within the mean- ing of Section 8 (3) of the Act. 4. The respondent by discharging J.' D. Waddle because he gave testimony under the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. - 5. The employees of the respondent engaged in operating motor- busses constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. DECISIONS AND ORDERS 621 6. The B. R. T. was on June 7, 1937, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 7. By refusing to bargain collectively with the B. R. T. as the exclusive representative of its employees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 8. The respondent by interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- 'tivities for the purpose of collective bargaining or other mutual aid or protection has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 10. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the discharge of Jack Roglitz, Fred Griffith, T. C. McNutt, Jack Krebbs; R. D. Owen, and Lee Fleming. . ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National. Labor Relations Board hereby orders that the respondent, the Missouri, Kansas and Oklahoma Coach Lines, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the B. R. T., the I. A. M., or any other -labor organization of its employees, or encouraging member- ship in the Amalgamated or any other labor organization of its employees, by discharging or refusing to reinstate any- of its em- ployees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) Discharging or -otherwise discriminating against any of its employees for giving testimony under the National Labor Relations Act ; (c) Refusing to bargain collectively with B. R. T. as the exclusive representative of its employees engaged in operating motor buses; (d) Recognizing the Amalgamated as the exclusive representative of its employees; 622 NATIONAL LABOR RELATIONS BOARD (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Lloyd W. Kifer, R. L. Harvey, William Joe Ray, J. D. Waddle, and Charles Akers immediate and full reinstatement to their former positions without prejudice to their seniority and other rights or privileges; (b) Make whole J. D. Waddle, and Charles Akers for any loss of pay they have suffered by reason of its discrimination against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of such discrimination to the date of such offer of reinstatement, less his net earnings 5 during such period; ' (c) Make whole Lloyd W. Kifer, R. L. Harvey, and William Joe Ray for any loss of pay they have suffered by reason of its dis- crimination against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of his respective discharge to October 9, 1937, and from the date of this Order to the date of such offer of reinstate- ment less his net earnings during 6 such period; (d) Upon request, bargain collectively with the B. R. T., as the exclusive representative of all its employees engaged in operating motor buses for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (e) Post in conspicuous places where they will be observed by the respondent's employees and maintain for a period of thirty (30) consecutive days from the date of posting, notices stating (1) that the respondent will cease and desist in the manner aforesaid; (2) that the respondent will bargain collectively with the B. R. T. as the representative of the employees in the appropriate unit; (f) Notify the Regional Director of the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 6 By "net earnings" is meant earnings less expenses , such as for transportation, room and board, incurred by an employee in connection with obtaining work ; working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crosset Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2;90, 8 N. L. R B 440. 6 Ibid. DECISIONS AND ORDERS 623 And it is further ordered that the complaint in so far as it alleges that the respondent has engaged in unfair labor practices with respect to the discharges of Jack Roglitz, Fred Griffith, T . C. McNutt, Jack Krebbs, R. D. Owen and Lee Fleming and the lay-off of Wayne Treaster be, and it hereby is, dismissed. [SAME TITLE] SUPPLEMENTAL ORDER November 16, 1.938 On November 2, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled proceeding.' For reasons stated in said decision, and by virtue of Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of - National Labor Relations. Board Rules and Regulations-Series 1, as amended, IT IS FURTHER ORDERED that the petitions for investigation- and certification of-representatives of employees of Missouri, Kansas & Oklahoma Coach Lines, Tulsa, Oklahoma, filed by the Brotherhood of Railroad Trainmen and by the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Division 1147, be, and they hereby are, dismissed. 9 N. L R. B., No. 55a.