L & A Bus Lines

In the Matter of C. G. LASHLEY, DOING BUSINESS AS L & A Bus LINES and LOCAL DIVISION #1110, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC, RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA and Roy MAPHIS Case No. C-791.Decided August 15, 1939 Transportation Industry-In.terterence, Restraint, and Coercion: suspension and discharge of union president without cause with subsequent refusal to reinstate-Discrimnination: discharge for union membership and activity sus- tained as to one employee-Reinstatement Ordered: discharged employee-Back Pay: awarded from date of suspension to offer of reinstatement. Mr. Reeves R. Hilton, for the Board. Mr. Charles Z. Heskett and Mr. Janes Alfred Avirett of Cumber- land, Md., for the respondent. Miss Margaret Holmes, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Roy Maphis and Local Division No. 1110, Amalgamated Association of Street, Electric, Railway and Motor Coach Employees of America, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Balti- more, Maryland) issued a complaint, dated, March 25, 1938, against C. G. Lashley, doiiig business as L & A Bus Lines, Cumberland, Maryland, 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) and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served on the respondent and the Union. The complaint charged in substance that the respondent had dis- criminated, in regard to hire and tenure of. employment of Roy 14 N. L. R. B., No. 45. 649 650 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Maphis to discourage membership in the Union; that by this and other acts aiid conduct the respondent had interfered with, restrained, and coerced his employees in the exercise of their right to self- organization and to engage in concerted , activities for their mutual aid and .protection . On April 1, 1938, the respondent filed an answer .denying the , allegations of unfair labor practices and making certain allegations by way of affirmative defense. Pursuant to notice, a hearing on the complaint was held in Cum- berland, Maryland, on May 2, 3, and 4, 1938, before James G. Ewell, the Trial Examiner duly designated by the Board. The respondent appeared and was represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made various rulings on motions and objections to the admission of evidence , to some of which rulings exceptions were taken . At the close of the hearing counsel for the Board moved that the pleadings be conformed to the proof, which motion the Trial Examiner granted. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed .' The rulings are hereby affirmed. On July 22, 193S, the Trial Examiner filed an Intermediate Re- port., copies of which were duly served on all parties , finding that the respondent had engaged in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and offer to Roy Maphis , full reinstate- ment. with back pay. Exceptions to the Intermediate Report were thereafter filed with the Board by the respondent. On March 28, 1939, oral argument was had before the Board in Washington, D. C. The respondent appeared and participated in the argument and thereafter filed a brief, which has been considered. Except in so far as the exceptions are consistent with the findings of fact, con- clusions of later, and order set forth below, we find them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent , Conda G. Lashley, for' many years has been en- gaged in the business of transporting passengers and freight for hire C. G. LASHLEY 651 under the trade name of L & A Bus Lines.' The respondent main- tains bus terminals in Cumberland, Maryland, and in Keyser and Piedmont, West Virginia. From his principal terminal in Cumber- land, Maryland, 54 busses departed daily during the month of De- cember 1937 en route to points in Maryland, West Virginia, and. Pennsylvania. The respondent furnishes the only means of com- mercial transportation between Ridgely, West Virginia, and Cum- berland, Maryland. At Newcreek, West Virginia, the respondent's schedules connect with those of the Greyhound bus lines which carry passengers from Newcreek to Washington, D. C., and St. Louis, Missouri. The gross receipts accumulated from the transportation of pas- sengers and freight in 1937 were $181,000, 50 per cent of which was derived from interstate operations. The respondent in a normal year employs approximately 35 drivers, servicemen, and mechanics. We find that the respondent is engaged in trade, traffic, commerce, and transportation among the several States and that the employees of the respondent are directly engaged in such traffic, commerce, and transportation. If. THE UNION Local Division No. 1110, Amalgamated Association of Street, Elec- tric, Railway and Motor Coach Employees of America is a labor organization drawing its membership from ,several motorbus trans- portation companies in the vicinity of Cumberland, Maryland. It is affiliated with the American Federation of Labor. III. THE UNFAIR LABOR PRACTICES A. General background Union activity commenced in the respondent's plant in the spring of 1934, when Local 1041, Amalgamated Association of Street and Electric Motor Coach Employees, 2 was organized among the respond- 'The respondent , in partnership with one Anderson , originally operated the L & A Bus Lines. In 1.937 the respondent purchased Anderson's interest in the partnership and in April 1938 the initial steps were taken to incorporate the L & A Bus Lines. A petition for authority to exercise the power to obtain a certificate of incorporation was filed with the Public Service Commission of Maryland , and on April 29, 1938 , a hearing was had on such petition at Baltimore , Maryland . The process of incorporation was incomplete at the time of the hearing. However, the respondent stipulated that "No objection will be made at a later time to the jurisdiction of the Board over this new corporation and the respondent now consents that any order that would have been made against this bus company as an individual will likewise be made against the new corporation which has begun but which is still in an incomplete state." 2 Affiliated with the American Federation of Labor. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's employees. In the summer of 1934 Local 1041, at that time representing a majority of the employees, unsuccessfully attempted to bargain with the respondent concerning the working conditions in the plant. The respondent's refusal to recognize the representatives of Local 1041 for the purpose of collective bargaining was based on the claim that he had previously negotiated with the L & A Protec- tive Association, an organization formed in the summer of 1934 under the leadership of his garage foreman, shop foreman, and traffic manager. Commencing in July 1934 the respondent discharged 10 or 12 members of Local 1041, including William Dorsey, its president. As the result of complaints filed' by the discharged employees with the old National Labor Relations Board, hearings were held and a deci- sion was issued on January 15, 1935. In its decision the old Board found the Association to be company dominated and that the re- spondent had discriminatorily discharged seven members of Local 1041. The discharge of Dorsey was not found to be discriminatory inasmuch as the explanation advanced by the respondent, that Dorsey had failed to report for a run, was deemed satisfactory. The Board expressed the opinion, however, that Dorsey would not have been discharged for this infraction had it not been for his union activities. The case was settled in March 1935 by the immediate reinstatement of Dorsey and by the respondent's promise to reinstate three of the seven employees found by the old Board to have been discrimina- torily discharged as soon as business conditions permitted. Although Dorsey went back to work, none of the other employees were rein- stated by the respondent. By the time Dorsey was reemployed Local 1041 had disintegrated. The Association functioned for a time but it had become entirely inactive by November 1936. The Union was organized in February 1937 and upon its inception certain funds which remained in the treasury of the defunct Asso- ciation were turned over to the Union by the respondent's garage foreman, the former Association president. In March 1937 negotia- tions were commenced with the respondent concerning a collective bargaining agreement, the Union at that time having organized a majority of the respondent's employees. On April 1 a contract was executed by the Union and the respondent which was by its terms to expire on October 1, 1937. The contract embraced all the respond- ent's drivers, mechanics, and servicemen who were at that time mem- bers of the Union or who should thereafter become members. Among the conditions of employment set forth in the contract were pro- visions for an eight-hour day, for the arbitration of grievances, and for a 10-per cent wage increase applicable to all employees. Upon the expiration of the April contract the Union and the respondent exe- C. G. LASHLEY 653 cuted a new agreement which was to remain effective until October 1, 1938, and which contained substantially the same provisions as were set forth in the April contract. The Union represented all the respondent's drivers, mechanics, and servicemen in October 1937. The record discloses that throughout the year 1937 many grievances concerning such matters as time schedules, seniority, and individual working conditions arose among the respondent's employees. The Union promptly presented each grievance to the respondent and through conferences and discussion was successful in persuading the respondent to adjust the majority -of - problems arising under both contracts to the satisfaction of its members. B. The Maph,is case Roy F. Maphis was suspended from the respondent's employ on January 2, 1938, and discharged on January 21, 1938. Maphis had been employed by the respondent as a driver for approximately 9 years prior to his suspension and discharge, during which time he had driven over 400,000 miles. Maphis enjoyed an excellent record as a driver in the vicinity of Cumberland, Maryland, and his accident record in the respondent's service was far superior to the records of many of the other drivers. Maphis was one of the organizers of the Union and was elected. president in March 1937, which position he still occupied at the date of the hearing. As a member of the committees which negotiated both contracts with the respondent., and as a member of the union grievance committee, Maphis frequently conferred with the respond- ent throughout the year 1937 concerning union matters. On December 27, 1937, Maphis was involved in an accident during the course of a run between Cumberland, Maryland, and.Piedmont, West Virginia. The accident caused very slight damage to the bus and none of the passengers on the bus complained of injuries at the time of the accident. Maphis reported the accident to the respond- ent's insurance adjuster and made one run on December 28, after which he reported off sick for several days. When he returned to. work on January 2, the respondent informed him that several passengers had complained of injuries received in the accident and. that he was being suspended pending investigation of such com- plaints. Between January 2 and January 21, the union grievance committee and Maphis conducted an independent investigation in an effort to discover the injuries to which the respondent had referred. Such investigation revealed that none of the passengers interviewed had sustained injuries or had complained to the respondent. The committee, as well as two conciliators from the Department of Labor, also conferred with the respondent several times during the following 654 DECISION S OF NATIONAL LABOR RELATIONS BOARD weeks"concerning the Maphis case. On January 21 Maphis was noti- fied. that he was being discharged for gross negligence and for violating the respondent's rules in connection with the accident on December 27. Thereafter the union grievance committee and the conciliators again attempted to arrange for the reinstatement of Maphis but with no success. On February 14 the Union wrote a letter to..the:.respondent. requesting that the Maphis case be., arbitrated in accordance with the arbitration procedure set forth in the October contract. On February 19 the respondent declined to arbitrate the case.3 On February 22 the Union called a strike in protest against Maphis' discharge and the respondent's refusal to arbitrate. While the strike was " in progress a conciliator from the Department of Labor and the union grievance committee conferred with the re- spondent many times in an effort to mediate the dispute. The strike was finally settled on March 22 by all agreement which provided that all the strikers, with the exception of Maphis, should be returned to work in accordance with their seniority. Shortly after March 22 the respondent resumed operations with about half of his force. . We shall now consider the December 27 accident in detail and the reasons assigned by the respondent for Maphis' discharge. Maphis operated three round-trip runs on December 27, all of them covering the route between Cumberland, Maryland, and Piedmont, West Vir- ginia, the accident occurring during the course of his third run.4 At about 4:25 p. in. Maphis arrived in the Cumberland ter- minal, having just completed his second run. It was snowing in Cumberland when he drove into the terminal. The respondent inquired of Maphis concerning the condition of the roads between Keyser and Cumberland, to which inquiry Maphis replied that the snow was heavy on the hills and curves. The respondent then directed Maphis to use Bus No. 74 on the next trip, stating that it was a big, heavy bus with good tires and would not require chains. The, respondent further directed Maphis to disregard schedules and put chains on at Keyser if they should become necessary. Bus No. 74 was then ordered out of the garage by the respondent and de- livered to Maphis without chains. - The October contract provides in part that the respondent shall meet with the Union on all questions involving the contract , and that differences which cannot be adjusted between them shall be submitted to an impartial arbitration board . The contract does not expressly provide for the arbitration of discharges . There is a provision , however, that "men working under this contract shall perform their duties at all times efficiently and loyally observe and strictly obey all rules of the company." The Union tool: the position that the Maphis case was a question involving the contract , inasmuch as he was allegedly discharged for gross negligence in the operation of his bus and for violation of the respondent's rules , matters expressly mentioned in the contract. 4 These runs go through Keyser, West Virginia, and terminate in the tri-towns of Piedmont, Westernport , and Luke. C. G. LASHLEY 655 Maphis departed from the Cumberland terminal at 5 p. m., and it continued to snow as he drove toward Keyser. Maphis stopped the bus on the crest of McCoole hill, about 20 miles from Cumberland. The road descends in a sharp curve to the right from the crest of the hill, and when Mathis started around the curve he observed several cars stalled in his path. He pulled the bus over to the left-hand side of the road and stopped there 2 or 3 minutes until the cars below moved on. The respondent contends that in stopping on,the crest of McCoole hill the bus skidded and struck the left embankment. Maphis denied this assertion and his denial was corroborated by the testimony of three of the persons who had been passengers on the bus. However, an equal number of passengers testified at the hearing in support of the respondent's contention. In view of the obvious conflict in the evid0hce, we deem it significant that Maphis' own testimony reveals that several cars were stalled on McCoole hill. Moreover, we have examined the signed statements of several passengers secured shortly after the accident by the respondent's insurance adjuster. In such statements the passengers, including two of those who at the hearing confirmed Maphis' testimony regarding the incident, asserted that the bus skidded on McCoole hill and struck the embankment. These statements, signed when the events in issue were fresh in the minds of the witnesses, add weight to the evidence introduced by the respondent at the hearing in support of the con- tention that the bus skidded on McCoole hill and struck the embank- ment. Although the issue is not entirely free from doubt, under all the circumstances we are inclined to accept the respondent's version of the McCoole hill incident. Maphis reached Keyser at approximately 6:15 p. m., one-half hour behind schedule. It was snowing heavily at Keyser and there were 2 or 3 inches of snow on the ground. Maphis testified that he asked Roderick, the respondent's foreman and sole employee at Keyser, if it would be necessary to use chains on the road between Keyser and Piedmont, to which inquiry Roderick replied that Kinney House hill, the most treacherous piece of road on the run, was cindered. Roderick denied that Maphis asked his opinion concerning the neces- sity for chains. However, he admitted telling Maphis that Powell, a driver who operated the 4 o'clock run between Cumberland, Keyser, and Piedmont, had just come into Keyser from Piedmont without chains. We are convinced that Roderick would not have volun- teered such a statement to Maphis had not the latter inquired con- cerning the necessity for chains. Roderick further denied telling Maphis that Kinney House hill was cindered. However, Powell testified that upon arriving in Keyser on the 4 o'clock run en route to Piedmont he asked Roderick about the condition of the road be- '656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween Keyser and Piedmont, and Roderick told him that Kinney House hill was cindered. Roderick made no denial of Powell's testi- mony and we therefore accept it as true. Inasmuch as Powell received this information from Roderick only an hour before Maphis, embarked on the same run, talked to Roderick in regard to the same road conditions, we are satisfied that Roderick also told Maphis that Kinney House hill was cindered. Maphis left Keyser without chains carrying 22 passengers. The accident occurred on the highway between Keyser and Pied- mont, about a mile and a half from Keyser. The highway is a concrete road approximately 18 feet wide, edged by a 4-foot dirt shoulder that slopes down into a ditch. Maphis testified substantially .as follows concerning the accident : Driving on the right-hand side of the road, Maphis had reached the crest of a small hill when he observed the headlights of a car approaching on the left-hand side of the road. Deciding that he had sufficient room to pass the approaching car, he continued driving toward it at a speed of, approximately 15 miles an hour. When he had driven beyond the glare of the car's headlights, he dis- covered that the car was not moving but was parked on the left-hand side of the road, and he observed for the first time a truck parked behind the car, the rear of which protruded 3 or 4 feet across the center of the highway. The truck had no lights and Maphis did not see it until he was almost even with the car. He turned the bus to the right and succeeded in clearing the truck. The right front wheel of the bus, however, left the concrete and ran on the dirt shoulder of the road. Maphis, having slackened his speed con- siderably by this time, continued to drive in an effort to bring the wheel back on the concrete. In the meantime, the right rear dual wheels left the concrete. About 150 feet from the point where the wheels first left the concrete the bus was brought to a sudden stop by striking a concrete culvert embedded in the dirt shoulder of the road. The right front wheel of the bus, being turned to the left to climb back on the concrete, glanced off the culvert, and the right rear dual wheels, which by this time were about 2 feet from the edge of the concrete, straddled the culvert. The road at this point was bordered by the bank of a mountain whose protruding stones scraped the side of the bus as it stopped. Maphis' testimony concerning the accident was corroborated in part by two witnesses who had been passengers on the bus. Hanna, one of such passengers, was riding on the left-hand side of the bus behind Maphis and next to the window. He had wiped the frost and mist from the window and shortly before the accident he observed C. G. LASHLEY 657 the bright headlights of a car approaching the but. After the acci- dent occurred, Hanna got off the bus and saw a truck on the road. He also asserted that he observed the driver of the truck standing beside it. The other passenger, Shoppert, also followed Maphis off the bus after the accident occurred. His testimony at the hearing reveals that he observed a truck a distance behind the bus on the road. Neither Hanna nor. Shoppert recalled that the truck had protruded across the road as claimed by Maphis, and neither of them saw the car that Maphis asserted had been parked in front of the truck. We feel that a reasonable explanation of this variance be- tween their testimony and that of Maphis' lies in the fact that Maphis descended from the bus several minutes before these passengers got off, during which time the driver of the truck would have had an opportunity to straighten it out and the car could have moved on. The respondent maintains that its investigation of the accident failed to sustain Maphis' story that he had been forced off the road by a truck, since the truck was not located at any time subsequent to December 27 although a thorough search for it was made in the vicinity of the accident. As further evidence of the unreliability of Maphis' explanation of the accident, the respondent produced six of the persons who had been passengers on the bus to testify that they had seen no truck at the scene of the accident. Statements to the same effect signed by such passengers shortly after the accident at the request of the insurance adjuster were also introduced in evi- dence by the respondent. We do not deem this evidence sufficient to cast doubt upon the authenticity of Maphis' explanation of the accident. In the first place, the fact that no trace of the truck was found by the respond- ent after December 27 is not indicative of the absence of such a truck. Maphis did not secure the license number of the truck at the scene of the accident and because of the heavy snowfall was unable to render a definite description of it. Consequently, it is not surprising that the truck was not located by the respondent. Secondly, the evidence reveals that the six witnesses who testified at the hearing that they had observed no truck at the scene of the accident were passengers who had remained seated in the bus during and after the accident. The testimony of several passengers reveals that it was difficult to observe anything from the windows of the bus be- cause they were frosted due to the snowstorm. Inasmuch as the pas- sengers in question did not come out of the bus after the accident, their signed statements and testimony to the effect that they bad observed no truck are not inconsistent with Maphis' statement that such a truck was present. Furthermore, in their testimony and 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements these passengers asserted that immediately after the acci- dent occurred Maphis stated that he had been crowded off the road by a truck. This information, volunteered by Maphis when the event in issue occurred, substantiates his subsequent explanation to the same effect. We further find it significant that the two passengers who did get off the bus with Maphis shortly after the accident occurred testified at the hearing that they had seen a truck. The respondent maintains that the testimony of these passengers is not credible inasmuch as Shoppert signed-a-statement for the insurance adjuster shortly after the accident which is at variance with his testimony at the hearing, and inasmuch as Maphis talked with Hanna a few days after the accident. It is true that Shoppert's statement to the insurance adjuster shortly after the accident was in contradic- tion of his testimony at the hearing. However, before the hearing Shoppert also signed a statement for the Board's Examiner in which he stated, definitely that he had seen a truck at the scene of the acci- dent. In explaining the statement he had previously signed for the insurance adjuster, Shoppert testified that at the time such state- ment was taken he was uncertain whether the truck he had seen at the time of the accident was the one which had forced the bus off the road, and that he did not mention the truck in his statement to the insurance adjuster because of this uncertainty. Assuming, however, that Shoppert's testimony should not be credited in view of these contradictory statements, the testimony of Hanna substan- tially sustains Maphis' explanation of the accident. The fact that Maphis called on Hanna shortly after the accident does not disturb the credibility of Hanna's testimony, since there is no showing that Maphis in any way influenced Hanna's version of the events that occurred on December 27. Under all the evidence, we are convinced that Maphis' explanation of the accident is accurate. Immediately after the bus stopped, Maphis inquired of the passen- gers concerning any injuries they may have received, and upon find- ing that no one had been hurt or upset in the accident, distributed witness cards with the request that the passengers sign and return them to him. Thirteen passengers signed the witness cards for Maphis. Maphis then got off the bus. A car which had been follow- ing the bus had gone off the concrete and Maphis assisted the driver in returning to the road. Several minutes were consumed in assist- ing the car, and by the time Maphis directed his attention to the truck he observed that it was moving up the hill. Consequently, he did not obtain the license number of the truck. He then examined the bus and discovered that the front axle was tipped back about 3 inches on the spring but that it was solid. The right front fender was pushed out but was not loose. At the hearing, the employee who repaired the bus testified concerning additional damage that C. 'G. LASHLEY 659 Maphis failed to discover in his examination after the accident occurred. He stated that the spring clips which held the axle in place were broken; that the tires were torn; that the right front light was thrown slightly out of focus because of the damage to the fender; that the front clamp which held the gasoline tank in place was torn off; that the running board was bent and that the body panels and mouldings were bent. The total cost of repairing the bus amounted to $31.90, $20 of which covered the cost of materials required for its repair. After concluding his examination of the bus at the scene of the accident, Maphis drove to Westernport and Piedmont, West Virginia, without any mishap. He did not telephone Keyser to report the .accident either at the time it occurred or from Westernport or Piedmont. A second examination in Westernport convinced him that the bus was solid, and Maphis thereupon picked up several new passengers and drove to Keyser without any difficulty. When he reached Keyser, Maphis ' asked Roderick to look at the bus. Roderick examined the front end with the aid of a flashlight and tested the steering apparatus. At the conclusion of his examina- tion, Roderick told Maphis that it was safe to carry his load to Cumberland. In his testimony at the hearing Roderick indicated that he would not have permitted Maphis to drive the bus from Keyser to Cumberland had he known there had been an accident. Roderick asserted that Maphis did not inform him that the bus had collided with a, culvert but merely stated that he had been forced off the road. It seems highly improbable that Roderick, at least aware that the bus had been forced off the road, could have examined the damaged axle and failed to deduce that there had been a collision of some kind. We are satisfied that Roderick was ap- prised of the fact that there had been an accident when he ex- amined the bus in Keyser and, that his advice that the bus was safe to drive was given with knowledge of that fact. Before Maphis left Keyser, the question of chains was again dis- cussed. Maphis stated that he did not consider them necessary, and thereupon drove from Keyser to Cumberland without chains. He encountered no difficulty on the road between Keyser and Cumberland. The reasons assigned by the respondent for Maphis' discharge were as follows: (1) driving his bus on December 27 without chains; (2) driving and carrying passengers in the damaged bus after the accident occurred; (3) failing to report the accident by telephone; and (4) failing to secure the names of nine passengers and the li- cense number of the truck at the' scene of the accident. We shall now consider these contentions. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With regard to the first contention, the respondent maintains that Maphis was grossly negligent in driving his bus on December 27 without chains. It is to be noted, however, that the respondent per- mitted Maphis to depart from Cumberland without chains although he knew there was a heavy snow on the road between Cumberland and Keyser. It is true that the skidding of the bus on McCoole hill indicated that the road conditions at that point were dangerous. However, Maphis would have encountered extreme difficulty in at- tempting to place chains on his bus on McCoole hill. There is evi- dence that the jack in Bus No. 74 was inadequate to lift the bus; furthermore, Maphis had no assistant to help him attach chains. Since it requires as many as three persons to place chains on the respondent's busses, it was not the usual practice for the respondent's drivers to stop on the road over which Maphis traveled on December 27 and place chains on their busses unassisted. When Maphis ar- rived in Keyser, he discussed the necessity for chains with Roderick, and departed from Keyser without chains upon Roderick's advice that, Kinney House hill was cindered: ^ Except in cases of emerg- ency, it is true that Roderick's authority over the drivers is more advisory than mandatory. However, the drivers customarily seek and rely upon.his advice because of his status as foreman and his familiarity with the route between Keyser and Piedmont. Thus, on December '27 both Maphis and Powell omitted to use chains between Keyser and Piedmont in reliance on Roderick's advice that Kinney House hill was cindered. When Maphis returned to Keyser after the accident occurred, the question of chains was again discussed. Roderick's authority over the drivers becomes mandatory whenever an accident has occurred on the road. It is significant that Rod- erick failed to exercise such authority and direct Maphis to use chains but rather approved Maphis' driving the bus in the condition in which it arrived in Keyser. Under these circumstances, we do not believe that Maphis' failure to use chains was a grossly negligent omission. Furthermore, the record discloses that failure to use chains on occasions when the respondent deemed them necessary had never provoked such drastic discipline as discharge in the case of other drivers. With regard to the second contention, the respondent urges that Maphis was grossly negligent in driving and carrying passengers in the damaged bus after the accident occurred. , It is the respondent's position that the full extent of the injuries to the bus was discovered only after the shop examination and that the total damage thus sub- sequently revealed rendered the bus unsafe for operation. Irre- spective of the fact that the respondent after a thorough examination of the damage to the bus considered it unsafe to drive, we feel that Maphis' decision that it was roadworthy was reasonable under all C. G. LASHLEY 661 the circumstances. Maphis examined the bus after the accident oc- curred and again when he arrived in Westernport. The reasonable- ness of his decision that the bus was safe for driving is evidenced by the fact that Roderick, who had full authority over Maphis and the bus due to the accident, confirmed his opinion after examining it in Keyser and permitted him to drive it to Cumberland; and by the further fact that Maphis encountered no difficulty in driving from the scene of the accident to Piedmont, Keyser, and Cumberland. Under these circumstances, we find the respondent's contention that Maphis' conduct in driving the damaged bus was grossly negligent untenable. Moreover, the record reveals that on one occasion another driver drove a damaged bus from the scene of the accident to the Cumberland terminal and was not disciplined or discharged for so doing. With respect to the third contention, the respondent's rules require that the "operator of any bus which becomes disabled in service shall promptly telephone the Superintendent of Maintenance at the same time giving complete information as to the nature of the defect and whether or not it is possible for him to bring the bus into the terminal safely." Maphis did not comply with this rule, since he considered the bus safe for the remainder of, the trip and hence deemed it un- necessary to report to obtain a relief bus. While Maphis did breach the respondent's rule, his failure to telephone to report the accident under the circumstances disclosed could hardly have been deemed a serious omission. With respect to the fourth contention, the respondent's rules re- quire that the driver of a bus which has met with an accident shall secure the names of all witnesses and the license numbers of vehicles involved therein. The purpose of these rules is to protect the re- spondent and his insurance carrier from the risk of false claims being filed against them. Although Maphis secured' signed witness cards from 13 of his passengers, he neglected to obtain either cards or the names of the remaining nine witnesses, nor did he obtain' the license number of the truck which forced him off the road. However, no claims of any description were ever filed against the respondent or his insurance company as a result of the accident. Under these cir- cumstances, Maphis' failure to obtain this information was not a serious omission. Furthermore, Ralph Lashley testified at the hear- ing that there had been occasions when other drivers had failed to secure the names of 'all witnesses and that such failure had merely provoked advice from the respondent "that it is very essential to get all the names." It is the further contention of the respondent that Maphis' con- duct on December 27 was illustrative of apast record of inefficiency and disregard of rules and regulations. The only evidence offered in 662 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD support of this contention related to an incident which occurred in February 1937, almost a year before the events with which we are here concerned. On that occasion Maphis was involved in an ac- cident for which it was clearly. established that he was, not- respon- sible. He was reprimanded by the respondent, however, for failing to secure the names of several witnesses, for failing to report the accident by telephone, and for driving and carrying passengers in a damaged bus. With the exception of the February 1937 incident, the respondent had no complaint to make concerning Maphis' con- duct during his 8 years and 400,000 miles of driving. We are not persuaded that the February 1937 incident, singled out of an other- wise excellent driving record, establishes the respondent's contention that Maphis' past record was inefficient and evidenced a disregard of rules and regulations. On the contrary, we find that Maphis en- joyed an excellent record as a driver in the respondent's employ. C. Conclusions as to the Maphis Case Maphis, the president of the Union and its most active member, was the acknowledged leader of an employee group which was mili- tant in its determination to preserve the working conditions it had obtained through collective bargaining and to secure the satisfactory adjustment of numerous grievances arising in the course of employ- ment. His importance to the Union was evidenced by the fact that his fellow workers struck to secure his reinstatement when other avenues of adjustment failed. The accident which formed the basis for Maphis' discharge was minor both in consequences and material damage. No person was injured in the accident; no claims were filed against the respondent or his insurance carrier; and the expense incurred by the respondent in repairing the bus was but $31.90, the actual cost of materials essential to its repair being only. $20. We have found the contention that Maphis' conduct on December 27 was grossly negligent to be unsupported by the evidence, and that Maphis' violations of certain rules were not serious offenses under all the circumstances. As stated by the Board in Matter of Houston Cartage Company, Inc. and Local Union No. 367,- International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America and L. S. Brooks: Experience - has shown this Board that there is no field of employment where employers can so easily find means to cloak their real motives for discharging employees as in the employ- 5 2 N. L. R. B. 1000; see also Matter of Harry G. Beck, trading as Rocks Eapress Com- pany and International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 355, 3 N. L..R. B. 110. C. G. LASHLEY 663 ment of bus or truck drivers. In practically every case which has come before us involving such employees, it has been charged and proven that the discharged employees have exceeded the speed limit, left their route, or made stops not strictly in line with their duties. But from the very nature of the work of bus or truck drivers it is apparent that an employer has only to follow any truck or bus driver for a comparatively short time, to find him guilty of many such violations. We are, therefore, not impressed with the sincerity of an employer who advances such reasons for a discharge, where he fails to show that such violations were flagrant or repeated and where the surrounding circumstances indicate that the employee was active in union activities to which the employer was opposed. The language just quoted is particularly pertinent to the instant case. Maphis enjoyed a long and excellent driving record in the respondent's service. It is inconceivable that the respondent would discharge an employee of Maphis' proven ability and value because of a minor accident and minor offenses in connection therewith. Other circumstances also lead us to doubt the respondent's good faith in assigning the reasons we have discussed as the basis for Maphis' discharge. The evidence discloses that the respondent in- formed Maphis on.January 2 that he was being suspended from duty because several passengers had complained of injuries received in the accident. The record, however, conclusively shows that no person sustained injury in the accident and the respondent adduced no evi- dence that complaints of injuries were made to him at any time subsequent to the accident. Furthermore, the reasons later assigned for Maphis' discharge bear no relation to the reason given him by the respondent for his suspension on January 2. These facts are strongly persuasive of the conclusion that the respondent was de- termined on January 2 to discover cause to terminate Maphis' em- ployment.° Between January 2 and January 21 the respondent con- ducted a minute investigation of the December '27 incident in an attempt to discover conduct for which Maphis could be criticized. It is highly improbable that the respondent would have probed so deeply into the circumstances attending such a minor accident in an effort to discover breaches on the part of Maphis were there not some other reason for desiring his discharge. The Union was un- successful in its numerous attempts to, secure the'. reinstatement of ° There is evidence that the respondent on the evening of. December 27 expressed his decision "to get rid of" Maphis, assertedly because of his failure to use chains , and that -on December 28 either the respondent or his son remarked that Maphis was costing them too much money and "we. have got to do something about it." Neither the failure to use chains nor the money involved in repairing the bus , was mentioned to Maphis as the basis for his suspension on January 2. 190935-40-vol. 14-43 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maphis at any time after'January 2, although it enlisted the support of two conciliators from the Department of Labor, offered to sub- mit the dispute to arbitration and finally resorted to: a strike in pro- test against the respondent's disposition of the case. It is highly unlikely that the respondent would have remained adamant, in his determination to terminate Maphis' employment despite the inter- cessions of the Union if the December 27 incident and Maphis' con- duct in connection therewith were in fact the reason for his discharge. Under all the circumstances, we find that the December: 27 incident and Maphis' conduct in connection therewith did not ' provoke his discharge but that the respondent seized upon' the December 27 in- cident as an occasion for terminating the employment of the Union's president and most active member. We find that the respondent, by suspending Maphis from service on January 2, 1938, by discharging Maphis on -January 21, 1938, and by thereafter refusing to reinstate him, discriminated with re- gard to his hire and tenure of employment, thereby discouraging membership in the Union. We further find that, by such acts, the respondent has interfered with, restrained, and coerced his em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations,' to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. THE REMEDY We have found that the respondent suspended, discharged, and. thereafter refused to reinstate Maphis because of his union activities. In order to remedy such unlawful conduct, we will 'order the re- spondent to reinstate Maphis to his former position without preju- dice to his seniority or other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his suspension and discharge by payment to him of a sum equal to that which he would normally have earned as wages from the date of his suspen- sion from the respondent's service on January 2, 1938, until the date of the offer of reinstatement, less his net earnings 7 during said period. 'By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by such employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, .S N. L. R. B. 440. Monies received for work performed upon Federal, State, county ,' municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employees ; and the amount 'thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects. C. G. LASHLEY 665 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local Division #1110, Amalgamated Association of Street, Elec- tric, Railway and Motor Coach Employees of America, 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 employ-- mnent of Roy Maphis, thereby discouraging membership in the labor- organization known as Local Division #1110, Amalgamated Associa- tion of Street, Electric, Railway and Motor Coach Employees of" America, the respondent has engaged in and is engaging in unfair- labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing his employees< in the exercise of the rights guaranteed in Section 7 of the Act, the! respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, Within the meaning of Section 2 (6) and (7) of the Act. 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, C. G. Lashley, doing business as L & A Bus Lines, and his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Division #1110, Amalga- mated Association of Street, Electric, Railway and Motor Coach Employees of America, or any other labor organization of his em- ployees, by discharging, refusing to reinstate, suspending, or in any- other manner discriminating against any of his employees in regard to hire or tenure of employment or any other term or condition of employment; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively- through representatives of their own choosing, and to engage in, con- certed activities for the purpose of collective bargaining or other mu- tual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board' find's will effectuate the policies of the Act : 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Roy Maphis immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges; (b) Make whole said Roy Maphis for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from January 2, 1938, the date of his suspension from service, to the date of such offer of reinstatment, less his net earnings during the said period; deducting, however, from the .amount otherwise due to the said employee, monies received by said employee during the said period for work performed upon Federal, 'State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the fund for said work-relief projects; (c) Post immediately in conspicuous places in each department -of the respondent's plant copies of this Order; (d) Maintain such posted notices for a period of at least sixty (60) consecutive days from the date of posting; (e) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEIs1 nsoN took no part in the consideration of the above Decision and Order.