The Greyhound Corp.

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remain members of or give assistance to District 39, International Association of Machinists, AFL-CIO, or any other labor organization. WE WILL NOT interrogate our employees about their union membership, activities, or desires in a manner constituting interference , restraint, and coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT offer, promise, or grant our employees wage increases to induce them to refrain from becoming or remaining members of District 39, Interna- tional Association of Machinists, AFL-CIO, or any other labor organization, or to induce said employees to refrain from giving assistance or support to the aforesaid labor organization, or to any other labor organization. WE WILL NOT attempt to frustrate the rights guaranteed to employees by Section 7 of the Act by suggesting to and/or requesting our employees to select one of our employees as our employees exclusive collective-bargaining repre- sentative to deal with ourselves regarding wages, hours , and other working con- ditions of our employees. WE WILL NOT throw employees' union buttons on the floor or otherwise engage in disparaging and coercive conduct intended to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization , to form labor organiza- tions, to join or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become and remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. AvALAIR CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No. 963-9330, if they have any question concerning this notice or compliance with its provisions. Eastern Greyhound Lines (A Division of The Greyhound Corpo- ration) and Amalgamated Association of Street, Electric Rail- way and Motor Coach Employees of America , AFL-CIO. Case No. 8-CA-3046. July 17, 1963 DECISION AND ORDER On May 22, 1963, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a brief in support thereof. 143 NLRB No. 71. EASTERN GREYHOUND LINES, ETC. 659 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Relations Act of 1946, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151, et seq.), herein called the Act, was heard before Trial Examiner Robert E. Mullin, in Cleve- land, Ohio, on April 22, 1963, pursuant to due notice to all parties. The complaint, issued on March 12, 1963, by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served,' alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a) (5) and (1) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations but denied that it had committed any unfair labor practices. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce rele- vant evidence, and to argue orally. On May 8, 1963, a brief was submitted by the Respondent. This has been fully considered. A motion to dismiss, urged by the Re- spondent in its brief, is disposed of as appears hereinafter in this report. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent (herein called Greyhound), a Delaware corporation, with its principal office and place of business in Cleveland, Ohio, is engaged in the operation of an interstate bus service in the several States of the United States, including, among others, Ohio, Virginia, and Illinois. In the course and conduct of its business the annual gross revenues of the Respondent exceed $60,000,000, of which amount in excess of $50,000 is received from States of the United States other than the State of Ohio. Upon the foregoing facts, the Respondent concedes, and I find, that Grey- hound is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, herein called Union, is a labor organization within the meaning of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES Upon a petition for certification, filed by the Union in Case No. 8-RC-4705, and after a hearing, the Board, on August 2, 1962, issued a Decision and Direction of Election,' in which it directed an election in a unit consisting of all dispatchers and assistant dispatchers employed by the Respondent, excluding chief dispatchers and all other employees, the unit found by the Board to be appropriate, and which I like- 'The charge was filed on January 31, 1963 2 Eastern Greyhound Lines (A Division of The Greyhound Corporation), 138 NLRB 8. 717-672-64-vol. 143-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise find to be appropriate, for the purposes of collective bargaining . On Decem- ber 11 , 1962, in an election by secret ballot conducted under the supervision of the Regional Director for the Eighth Region, a majority of the employees in the afore- said unit selected the Union as their representative . Thereafter, on December 18, 1962, the Regional Director certified the Union as the exclusive bargaining repre- sentative of the employees in the unit heretofore mentioned . I now find that at all times since the latter date, the Union has been, by virtue of Section 9(a) of the Act, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay , wages, hours , and other condi- tions of employment. On January 4, 1963, the Union , by letter, requested the Respondent to bargain collectively with it as the exclusive representative of the employees in the unit found appropriate above, and asked that a meeting for this purpose be held at an early date. On January 19, 1963, the Respondent acknowledged receipt of the aforesaid correspondence from the Union, but declined to meet for bargaining purposes. Since this latter date it has not met with the Union, as requested . In its letter to the Union on January 19, the Respondent described the Union's request for a collective- bargaining conference as premature At the hearing in this case the Respondent re- iterated this position on the ground that certain pending litigation should be resolved before it is obliged to accede to the Board 's unit determination. This was with refer- ence to a collateral attack on the election proceedings which the Respondent initiated in the District Court for the Northern District of Ohio in 1962. That court initially granted a preliminary injunctive order but on September 14, 1962, for lack of juris- diction , the court dissolved its preliminary injunction . The Respondent thereupon appealed this ruling to the Court of Appeals for the Sixth Circuit. A decision on this appeal was still pending at the time of the instant hearing. At the outset of the hear- ing in the present matter the Employer challenged the jurisdiction of the Board to proceed and moved to dismiss the complaint on the ground that nothing should be done in the complaint case until the litigation in the injunction suit was concluded. This motion was denied. Since January 19, 1963, when the Respondent informed the Union that it consid- ered the request to bargain premature , the Employer's position has been that it is under no obligation to meet with the collective -bargaining agent for the dispatchers until the Court of Appeals has disposed of its injunctive suit in the representation case. There is no merit to this contention . The Board and the courts have held consistently that the duty to bargain cannot be postponed by the pendency of collateral litigation, injunctive petitions, or unfair labor practice charges. Old King Cole, Inc. v. N.L.R.B., 260 F. 2d 530, 532 ( C.A 6); N.L.R .B. v. E A. Taormina, A. F. Taor- nuna, et al., d/b/a Taormina Company, 207 F. 2d 251 , 254 (C.A. 5 ); Lucas County Farm Bureau Co-operative Association, 128 NLRB 458, 471 , enfd . 289 F. 2d 844 (C.A 6), cert. denied 368 U .S. 823 ; Washington Aluminum Company , Inc., 128 NLRB 643, 645, affid . and enfd. 370 U.S. 9; The Borden Company, 108 NLRB 807, 812, enfd. 227 F. 2d 166 (C A. 5); Ken Lee, Inc, 137 NLRB 1642; Pasco Packing Company, 115 NLRB 437, 447; Sam'l Bingham's Son Mfg. Company , 111 NLRB 508, 510. In further defense of its refusal to meet with the Union, the Respondent contends that the Board 's unit determination in the representation matter is invalid. It is the Respondent's contention that the dispatchers in question are supervisors within the meaning of the Act and that, for this reason, it is under no obligation to bargain collectively with the Union as their representative . This argument, however, has already been answered . As appears from the Decision and Direction of Election and from the record in the representation proceeding, this precise contention was raised by the Respondent in that case , was there litigated and decided adversely to the Respondent. The Board's ruling on the status of the dispatchers and the unit question represents the law of this case and is, of course , binding upon me Ray Brooks v. N L R B , 348 U.S 96; Pittsburgh Plate Glass Company v . N.L.R.B ., 313 U.S. 146, 161-162; The Baker and Taylor Co., 109 NLRB 245, 246; Esquire, Inc. (Coronet Instructional Films Division ), 109 NLRB 530, 539, enfd . 222 F. 2d 253 (C.A. 7). In accordance with that determination I have found that all dispatchers and assistant dispatchers employed by the Respondent, excluding chief dispatchers and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act . The Respondent, having declined the Union's request to bargain in the certified unit on January 19, 1963, I find that on that date and at all times thereafter the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. EASTERN GREYHOUND LINES, ETC. 661 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices by refusing to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that the Respondent, upon request, bargain collectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All dispatchers and assistant dispatchers employed by the Respondent, excluding chief dispatchers and all other employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since December 18, 1962, the Union has been the exclusive repre- sentative of all employees in the appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 4 By refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit on January 19, 1963, and thereafter, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Eastern Greyhound Lines (a Division of The Greyhound Corporation), its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclu- sive representative of its employees in the appropriate unit described below: All dispatchers and assistant dispatchers, excluding chief dispatchers and all other employees. (b) Interfering with the efforts of the aforesaid Union, to negotiate for or repre- sent the employees in the said appropriate unit as the exclusive bargaining agent 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclu- sive bargaining agent in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall after having been duly signed by an authorized representative of the Respondent, be posted In the event that this Recommended Order shall be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be en- forced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its dis- patchers are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for the Eighth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.4 4In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an agreement is reached, embody it in a signed contract. The bargaining unit is: All dispatchers and assistant dispatchers, excluding chief dispatchers and all other employees. WE WILL NOT interfere with the efforts of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, to ne- gotiate for, or represent, the employees in the appropriate bargaining unit. EASTERN GREYHOUND LINES (A DIVISION OF THE GREYHOUND CORPORATION), Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Couch Electric Company and International Brotherhood of Electrical Workers, Local 11, AFL-CIO and District 50, United Mine Workers of America, Party to the Contract Sullivan Electric Company and International Brotherhood of Electrical Workers, Local 11 , AFL-CIO and District 50, United Mine Workers of America , Party to the Contract. Cases Nos. 21-CA-47044 and 21-CA-4721. July 18, 1963 DECISION AND ORDER On March 25, 1963, Trial Examiner David Karasick issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- 143 NLRB No. 73.