Omaha and Council Bluffs Street Railway Co.

In the Matter Of OMAHA AND COUNCIL BLUFFS STREET RAILWAY COM- PANY and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1002, AFFIL- IATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1039.-Decided December 1, 1939 Street Railway Transportation Industry-Interference, Restraint, and Coer- cion: anti-union statements by officials to strikers applying for employment- Collective Bargaining : charges of refusal to bargain, not sustained-Company- Dominated Union: charges of, not sustained : insufficient evidence of existence, or domination of, after July 5, 1935-Strike: occurring before July 5, 1935- Discrimination : charges of refusal to reinstate strikers because of union affilia- tion and activity, not sustained : strikers' places filled before July 5, 1935; employer not obligated to reinstate strikers as a group and discharge employees hired before July 5, 1935; employer not obligated to offer reinstatement to individual strikers in view of Union's demand for group reinstatement. Mr. Arthur R. Donovan, for the Board. Kennedy, Holland, De Lacy & Svoboda, by Mr. J. A. C. Kennedy, Mr.,George L. De Lacy, Mr. Ralph E. Svoboda, and Mr. R. Adams, of Omaha, Nebr., for the respondent. Mr. Henry J. Beal, of Omaha, Nebr., and Mr. Charlton Ogburn, of New York City, for the Union. Cro f oot, Fraser, Connolly do Stryker, by Mr. W. C. Fraser and Mr. Hird Stryker, of Omaha, Nebr., for the "Old Group" employees. Wright, Wright & Kennedy, by Mr. William H. Wright, of Omaha, Nebr., for the "New Group" employees. Mr. Ivar Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1002, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated May 18, 1938, against Omaha and Council Bluffs 18 N. L. R. B., No. 12. 82 OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 83 Street Railway Company, Omaha, Nebraska, herein called the re- spondent, alleging that the respondent had engaged in and was en. gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged in substance (1) that on April 20, 1935, the Union called a strike for the reason, inter alia, that the respondent refused to negotiate or arbitrate certain matters in dispute; (2) that on named dates, par- ticularly on or about July 25, November 1, and November 18, 1935, the respondent refused, and thereafter continued to refuse, to bar- gain collectively with the Union although the Union had been desig- nated, on and before July 5, 1935, and at all times thereafter, as the exclusive representative of employees in an appropriate unit; (3) that since on or about February 24, 1934, and at all times since July 5, 1935, the respondent dominated and interfered with the adminis- tration of, and contributed support to, a labor organization known as the Employees Protective Association, herein called the E. P. A.; (4) that at all times since July 5, 1935, and specifically on or about November 1, 1935, the respondent discriminated in regard to hire and tenure of employment of 248 named employees by refusing to reinstate them because they were members of the Union and had engaged in concerted activities; 1 and (5) that by the foregoing acts and by treating with employees individually and refusing to deal with them through the Union, by issuing and causing to be issued misleading statements which tended to discourage membership in the Union and to place upon it the sole responsibility for the labor con- troversy arising in April 1935 and the circumstances growing out of such controversy, by using various agencies and persons for. the pur- pose of keeping surveillance over members of the Union, its meetings and activities, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The respondent filed with the Regional Director a motion, dated May 19, 1938, requesting that the time to plead be extended until June 23 and that the hearing be held not earlier than July 31, 1938. The respondent also filed with the Regional Director a motion, dated May 21, 1938, to make the complaint more definite and certain. On May 23, 1938, the respondent filed its answer admitting that it I The complaint alleged that 6 of the 248 employees , who died between July 5, 1935, and the date of the complaint, were refused reinstatement at all times between July 5, 1935, and the approximate date of their last illness or death, as set out in the complaint. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was engaged in the business of a common carrier of passengers by means of streetcars and motorbusses within and between the cities of Omaha, Nebraska, and Council Bluffs, Iowa, and that as lessee it operated and maintained a toll bridge over the Missouri River con- necting the aforesaid cities; alleging that, except for a very small percentage of its business, it is engaged in a purely local transporta- tion business in Omaha, Nebraska, and Council Bluffs, Iowa; denying that its operations have a close, intimate, or substantial relation to trade, traffic, and commerce among the several States; and denying that it had engaged in or was engaging in the unfair labor practices alleged in the complaint. By way of affirmative defense the respond- ent alleged that the Board was without jurisdiction in that all trans- actions upon which the complaint was based occurred prior to July 5, 1935, the effective date of the Act; that the former employees named in the complaint and the Board were estopped by lathes, in that the rights, if any, of the former employees were allowed to lie dormant for some 3 years; and that the failure to grant the respond- ent's motion for an extension of time within which to plead and for .a postponement of the hearing was, under the circumstances of this case, a denial of due process of law. Pursuant to notice of postponement of hearing,2 a hearing was held at Omaha, Nebraska, from July 11 to August 18, 1938, before R. N. Denham, the Trial Examiner duly designated by the Board. At the opening of the hearing the Trial Examiner granted petitions to intervene theretofore filed by a committee representing 259 em- ployees who did not go out on strike, herein called the "Old Group" employees, and by a committee representing 124 employees hired sub- sequent to the strike and prior to July 5, 1935, herein called the "New Group" employees. During the hearing, the petition of the "New. Group" employees was amended by consent of all parties to include representation of all present employees of the respondent who were hired subsequent to the strike, totaling 279 named persons. The peti- tions were granted with the intervenors' right to participate limited to matters directly affecting their seniority rights as employees. All parties were represented by counsel and participated in the hearing, and with the foregoing limitation, full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. At the commencement of the hearing the respondent renewed its motion to make the complaint more definite and certain. The Trial Examiner denied the motion, but stated that, if the respondent were 2 On May 26 , 1938, the Regional Director ordered the hearing, previously scheduled for May 31, postponed until July 11, 1938, and also allowed the respondent an additional 10 days in which to plead further if it so desired. OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 85 surprised by any testimony adduced under any general statement in the complaint, he would entertain a motion to allow the respond- ent additional time in which to meet such testimony. The Trial Examiner also denied the respondent's motion for an extension of time in which to plead. At the conclusion of the Board's case the respondent moved to strike certain allegations from the complaint and also to dismiss the complaint upon various grounds. These mo- tions were denied. The motion of counsel for the Board to amend the complaint to conform to the proof with regard to dates, spelling of names, and other formal matters was granted. During the course of the hearing the respondent was allowed to amend its answer to allege, among other things, that 86 named strikers, of whom 80 were named in the complaint,3 were disqualified from inclusion in an appropriate unit and from reinstatement by reason of having committed acts of violence causing damage to the respondent's prop- erty and injury to its employees; and that all persons named in the complaint as having been. discriminated against were likewise dis- qualified because they had engaged in unlawful picketing of the respondent's property. At the conclusion of its case, the respondent moved to add eight names to the foregoing amendment in order to conform to the proof.4 The Trial Examiner denied the motion. The Trial Examiner reserved ruling on the respondent's motions to dismiss the complaint, renewed at the close of the hearing and joined in by both intervenors, and also on the intervenors' motion to strike from the complaint the names of those persons allegedly discriminated against who either had turned in their equipment and received their final pay frond the respondent or who had filed appli- cations for reemployment. The foregoing motions were denied by the Trial Examiner in his Intermediate Report except in so far as '.lie motions to dismiss were consistent with his recommendations. Dining the course of the hearing the Trial Examiner made other various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex-. aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing all parties submitted briefs for the consideration of the Trial Examiner. The Trial Examiner issued an Intermediate Report, dated Novem- ber 5, 1938, copies of which were duly served upon the parties, finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) 8 The following names, not in the complaint , are included in the amendment : Sam D'Andrea, Guy Clover, John Gentry, Raymond Marchand , Charles Nelson , and Otis Smith. 4 The names included in the motion were : Anton Blatny, Edward Cernin, Jack (Junius) Fender, John Fogarty, Fred E. Minner, W. H. Olinger, William A. Rumsey, and Tom Shaffer. All of these names are included in the complaint. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (7) of the Act, but that the respondent had not engaged in any unfair labor practice within the meaning of Section 8 (5) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found, withdraw all recognition from and disestablish the E. P. A., and offer reinstatement with back pay to the employees found to have been discriminated against. Thereafter, pursuant to an extension of time granted all parties, the respondent, the "Old Group" employees, and the "New Group" employees filed exceptions to the Intermediate Report, and briefs in support thereof. Pursuant to notice, a hearing was held before the Board on June 16, 1939, for the purpose of oral argument. The respondent, both intervenors,' and the Union were represented by counsel and participated in the argument. The Board has con- sidered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Nebraska corporation with its offices in Omaha, Nebraska, is licensed to do business in the States of Nebraska and Iowa. It operates a street railway system within the cities of Omaha, Nebraska, and Council Bluffs, Iowa, and between the aforesaid cities via a toll bridge across the Missouri River. The respondent also operates motorbusses in Omaha, Nebraska. In 1937 the respondent transported a total of 28,812,094 revenue passengers, of which number 1,915,120, or 6.65 per cent, were transported between Omaha and Council Bluffs. About 7.5 per cent of the respondent's passenger revenue during 1937, which amounted to $2,436,732.23, was allocable to its interstate business. In 1937 the respondent employed approxi- mately 690 employees. We find that the respondent is engaged in trade, traffic, and trans- portation between the States of Nebraska and Iowa. II. THE ORGANIZATION INVOLVED Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1002, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership the operating, maintenance, and shop employees of the re- spondent, except supervisory employees. OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 87 III. THE UNFAIR LABOR PRACTICES A. Chronology of events The Union was first organized among the respondent's employees in August 1933. In February 1934 the Union presented to the re- spondent certain demands as to wages, hours, and working conditions. Shortly thereafter the E. Y. A. was organized 5 and likewise made certain demands upon the respondent. Early in March 1934 the re- spondent published a pamphlet in the form of a letter addressed to both organizations, discussing the demands of each and stating which demands were acceptable to it. All demands agreed to by the re- spondent were those submitted by the E. P. A. On April 16, 1934, the Union went on strike. The respondent ceased operations for 2 or 3 days, during which time the Union and the respondent agreed to submit certain differences to arbitration, whereupon the men re- turned to work and the respondent resumed service. At the outset of the arbitration hearing, it was orally stipulated by the parties that they "would abide by the decision of this Board for a period of one year." On July 12, 1934, the arbitration board rendered an award denying, because of lack of jurisdiction, the Union's request that its members be allowed to wear union insignia on their uniforms; find- ing that certain men, with one exception, had not been discriminated against; and granting a wage increase of 3 cents an hour to streetcar and motorbus operators "effective as of April 16, 1934." About 2 weeks after the above award was rendered, the Union called another strike which lasted for 4 or 5 days, demanding, among other things, that 1 cent of the 3-cent wage increase awarded operators be pro- rated among the maintenance and shop employees. The respondent refused to accede on the grounds that the Union was not authorized to speak for operators who were not members and that to comply would constitute a breach of the July 12 award. In the fall of 1934 the Union petitioned the old National Labor Relations Board to hold an election among the respondent's employees to determine the ap- propriate bargaining representative. On November 20, 1934, the old Board issued its decision holding that the public interest did not re- quire an election, for the reason, among others, that "an arbitration award was made on July 12, 1934; covering all matters in dispute at that time, effective for one year by agreement between" the parties. A rehearing was had and on December 20, 1934, the old Board issued a decision affirming its prior holding and stating that by agreement certain matters had been adjusted "by an arbitration award effective until July 12, 1935." The history and organization of the E. P. A. is dealt with in Section III D, infra. 28.302q-41-vol. IS-7 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 16, 1935, the Union, by Holger N. Nelsen, its president, addressed a letter to the respondent, stating that all agreements then existing "expire on or before April 16th, 1935." A proposed collective bargaining contract was submitted and the Union requested conferences thereon with a view to the execution of an agreement by April 16. The respondent replied on March 25, asserting that the 1934 arbitra- tion award, by agreement, was effective until July 12, 1935, and had been so regarded in the above-mentioned decisions of the old Board. The respondent stated that since "the relations between the Company and its employes are contractually fixed until July 12, 1935, ... not anything will be done by the Company to disturb the rulings of the Arbitration Board and of the National Labor Relations Board." Although the respondent continued to insist that the 1934 arbitra- tion award fixed relations with the Union until July 12, 1935, never- theless the respondent, between March 28 and April 11, discussed various items in the proposed contract with representatives of the Union and William Houston, a Department of Labor conciliator, who had been sent to Omaha at the request of the Union. The respondent refused to discuss the Union's closed-shop and wage-increase demands. It offered, however, to arbitrate the matter of whether ,a wage increase should be granted but only within such sum as a fact-finding com- mittee might find. the respondent to be earning in excess of operating expenses and fixed charges. The respondent proposed that the fact- finding committee consist of the 1934 arbitration board or a com- mittee of three named by a judge of the United States District Court. The respondent conveyed the foregoing proposals to the Union on April 11 by a letter addressed to Houston, and also requested him to notify the union employees that, in the event a strike were called, "the employees who fail to report for work within 72 hours will be auto- matically out of the service." The Union voted to strike on April 13, but deferred cessation of work pending the arrival of a representative of the old National Labor Relations Board, Frank Bowen, who was being sent to Omaha in an effort to effect a settlement. On the same day that the Union voted to strike, the respondent posted notices announcing that "Willfully staying away from the job, such as being on a strike, will be just cause for loss of seniority." On April 15 the respondent published an advertisement in the press stating that it would arbitrate as theretofore suggested and that "the company can- not retain men who will allow themselves to be talked into striking whenever the company cannot agree with paid out-of-town union organizers. It is for this reason, primarily, that the company, after extended deliberation, decided on the rule that men who fail to report for work within 72 hours after a strike is called will be automatically out of the service." OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 89 Bowen conferred with officials of the' respondent on. April 17, but was unable to effect a settlement. On April 20 the Union declared a strike, about 268 men suspended work, and the respondent ceased operations. Shortly before the strike, the respondent hired B. F. Danbaum, a former Omaha police official who operated the Midwest Adjustment Agency, to furnish protection to its property. Danbaum employed armed private guards, who at one time during the height of the strike numbered about 390 men, many of whom were sworn in as special policemen. He also furnished supplies, such as tear gas, ammuni- tion, and extra-arms, to the Omaha police department. The respond- ent paid Danbaum in excess of $170,000 for his services, which con- tinued until about March 1936. About April 24, 1935, the respondent resumed restricted service and began to hire new men to replace the strikers. Numerous acts of violence, beginning coincident with the resumption of service and last- ing through August, were committed against the property of the re- spondent. These acts included attempts to dynamite car barns, street- cars, and culverts; burning of streetcars on June 13 and 14; persistent hurling of bricks and other missiles at streetcars, usually at night; mobbing of streetcars in Omaha on April 29; burning of streetcars on July 18 in Council Bluffs; and rioting at"the Council Bluffs car barn on the night of July 18 and the following morning. Many strikers were arrested in connection with these occurrences, but except for three who were convicted, they were either acquitted or released without trial. On June 15 Lieutenant Governor Jurgensen of Nebraska, in the absence of Governor Cochran, declared martial law in Omaha and about 1200 National Guard troops arrived in the city. Governor Cochran arrived on June 16 and immediately ordered that outside organizers leave the city, that the respondent discontinue the employ- ment of private guards, that streetcar service continue on the then existing basis until midnight June 20, and that not later than 10 a. M. June 17 an arbitration board should be named to settle the major issues of the strike by midnight June 20. At the prescribed hour the Union announced it had selected Ernest Bowerman, a member of the Omaha Central Labor Union, as its arbitrator. The respond- ent did not select its representative, Sam W. Reynolds, until the afternoon of June 17, because it was unable to assemble its board of directors earlier. Upon its failure to comply with the deadline, the Governor ordered the respondent's streetcars removed from the streets forthwith. The Governor named- John J. Ledwith as the third arbitrator. - The arbitration board convened on June 19. The respondent sub- mitted a memorandum setting forth the following matters which it 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would consent to have taken into consideration by the arbitration board: (1) the matter of a wage increase, but only within such sum as the board might.find the respondent to be earning above operat- ing expenses and fixed charges; and (2) the matter of the rehiring of not more than 200 of the 268 men who went on strike. The respondent agreed that the men returned to work by the arbitra- tion could acquire life insurance and pension rights as if they had not gone on strike. The respondent refused, however, to arbitrate either: (1) the matter of the closed shop or (2) the question of the seniority of the strikers, on the ground that employees who did not strike had "automatically succeeded to seniorities" 'of the strikers. The Union submitted its proposed contract as the subject matter of the arbitration and also insisted that all strikers should be returned with unimpaired seniority. At this first formal session of the arbitration board, neither party receded from its position with regard to the issues to be considered by the board. After informal conferences and negotiations with the parties, the nature of which are not clearly shown in the record, the arbitration board on June 20 rendered the followed award, which was accepted by the Union and the respondent : 1. All of the 268. men who went on strike April 20, 1935, shall be returned to work June 21, 1935, at the same wage as they respectively received when they went on strike. 2. As to the Company, the seniority of the 268 men being returned to work shall date from the date of their return to work, June 21, 1935. The Company, however, shall accept and be bound by such seniority rights as may result from any arbitra- tion on seniority rights between the men who had seniority rights and went on strike April 20, 1935, and the present em- ployees of the Street Car Company, but the Company is not to be responsible for or a party to any such arbitration. 3. This Award shall be binding upon the Omaha and Council Bluffs Street Railway Company and the members of Division No. 1002 of the Amalgamated Association of Street Railway and Motor Coach Employees of America, for one year from this date. 4. This Board is continued for the purpose of giving consid- eration to further points in controversy. 5. That the cause of each and every employee including those who went on strike and those who remained at work, shall be fully heard and determined by a Board appointed for that purpose, composed of .Ernest Bowerman, John J. Ledwith and one to be appointed by those employees who remained at work. In the evening of June 21 the working employees of the respondent held a meeting in one of its car barns to consider the proposed arbi- OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 91 tration on the seniority question. The working employees, although expressing opposition to arbitrating seniority, delegated full power in the matter to the E. P. A. strike committee, which had been formed on June 17. This committee retained Hird Stryker to represent the non-striking employees. The seniority arbitration board convened on June 22 but adjourned, before any proceedings were had, at the request of Stryker, who at the time stated that his group had not yet definitely agreed to arbi- trate. It met again on June 24 and Stryker then presented a letter, signed by the E. P. A. executive committee, giving formal notifica- tion that the non-striking employees refused to arbitrate their seniority and that Stryker had been instructed to withdraw from the proceedings. The working employees held another meeting in one of the respondent's car barns on the evening of June 24. Anthony Rubeck, president of the E. P. A., and Stryker reported on the action taken with regard to the seniority arbitration board. The meeting voted to continue the strike committee with full authority to act as it might decide and specifically auhorized it to institute proceedings for an injunction against the remaining members of the seniority arbitra- tion board if they proceeded with arbitration and rendered a decision adverse to the non-strikers. On June 27 the seniority board, consisting of Ledwith and Bower- man, rendered an award restoring all strikers to their seniority rights as of April 20. On June 28 Stryker, on behalf of the E. P. A. and 12 working employees, 6 of whom were members of the E. P. A. executive committee, acting for themselves and as members of the E. P. A. and on behalf of all others similarly situated, filed a bill for an injunction in the United States District Court at Omaha seeking to restrain the respondent, the Governor, the adjutant general of Nebraska, and the three members of the first arbitration board from carrying out the June 27 arbitration award. The respondent, upon being served with a summons in the injunction suit, announced that it would "await the outcome of this suit before making a decision as to its action under this [June 27] award." The respondent filed its answer on July 1; Bowerman, the Union's representative on the first arbitration board, on July 11 filed a motion to dismiss for lack of jurisdiction. On November 4, 1935, the suit was dismissed as to Bowerman. No restraining order was issued or trial had, and on February 27, 1937, the case was dismissed for lack of prosecution. Although the June 20 award provided for the strikers' return to work on June 21, their actual return was delayed for a few days by agreement between the Union and the respondent. On June 29 the respondent by registered letters directed each striker to report on staggered dates between July 2 and 8 for assignment to duty. In 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connection with these letters the respondent issued a statement explaining that, since by the terms of the June 20 award it had no responsibility for the seniority arbitration , and since the non-strikers, relying upon the respondent's announcement that they had succeeded to the strikers' seniority, had refused to arbitrate the seniority question and, joined by the employees who had been hired to replace the strikers, had instituted proceedings to enjoin the enforcement of the June 27 award, the respondent had no alternative but to request that the strikers return to work pursuant to the June 20 award. The union members met on June 30, however, and voted not to return to work. In the forenoon of July 2, Nelsen and two other union officials called on F. B. Hudson , the respondent's assistant general manager. They handed Hudson a letter protesting the June 29 letters, request- ing that future communications be with the Union and not individual strikers, and stating that the strikers were ready and willing to return to work pursuant to both arbitration awards. Nelsen told Hudson that the strikers would return to work only on the basis of the com- bined awards, with unimpaired seniority . Hudson replied that, in view of the injunction suit, the only award which the respondent could recognize was the June 20 award. On July 2 a conference was held in the office of counsel for the respondent, attended by representatives of the respondent , Henry Beal, attorney for the Union , Stryker, and representatives of the Governor. On behalf of the Union , Beal proposed that the respondent take back the strikers with full seniority pending the determination of the senior- ity question by the Federal court and stated that the Union would abide by the court's decision. This proposal was rejected , following a private conference between Stryker and Yale Holland, counsel for the respond- ent. Thereafter Holland proposed that the strikers return with senior- ity as of June 21,1935, with a guarantee of employment at their former wage for 6 months, during which period they would not be subject to discharge or lay-off except for cause . The respondent also offered not to appeal from any decision in the suit for an injunction, which the parties expected to be decided within 6 months . Beal agreed to submit this proposal to the union officials. There is a conflict in the testimony as to whether the Holland proposal was rejected on July 2, the day it was made, or not until July 6, when the strikers met and voted against accepting the proposal . It is clear that Beal reported to the union officials on July 2 and that they indicated that the pro- posal was unacceptable . That the respondent and the press were under the impression that the Union had rejected the proposal is also clear, since the newspapers of July 3 carried accounts of the rejection and OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 93 Holland issued a statement expressing the respondent's regret that the strikers had not accepted his proposal. Prior to July 6 the original arbitration board had last met on June 21. At that session the parties had presented their contentions with respect to the various items in the Union's proposed contract. On July 6 the board met again for the purpose of hearing argument on the matters presented on June 21. The board, however, made no award other than that of June 20. Later in the afternoon on July 6, following the meeting of the arbi- tration board, the Union met and voted to reject the Holland proposal of July 2 and to continue the strike. Bowerman, the Union's repre- sentative on the arbitration board, resigned from the board on July 9, and in a letter to the Governor stated that, in view of the Union's determination to continue the strike, further action by the arbitration board 'would be "of no benefit to settle the differences as they now exist." At the time of the hearing it was the Union's position that the strike was still in effect. B. The alleged refusal to bargain collectively The complaint alleged and the answer denied that the respondent had refused to bargain collectively with the Union, although the Union had been selected by a majority of the employees in an appropriate unit. The Trial Examiner found that the Union did not represent a majority in an appropriate unit, and recommended dismissal of the complaint in so far as it alleged that the respondent had refused to bargain. The Union filed no exceptions to the Intermediate Report. During argument before the Board, counsel for the Union urged that the recommendations of the Trial Examiner be adopted in full.,, We have reviewed the evidence and agree with the finding of the Trial Examiner. Accordingly, we find that the respondent has not refused to bargain collectively within the meaning of Section 8 (5) of the Act. We will, therefore, dismiss the complaint in this respect. C. The alleged discriminatory refusal to reinstate The complaint alleged and the answer denied that the respondent had refused to reinstate 248 named employees for the reason they were The following colloquy occurred at the oral argument : Mr. Svoboda (counsel for the respondent) : Subsection 5 of Section 8, according to our conception, falls out of the case because the Trial Examiner . . . found that the complainant union had failed to establish a majority in the appropriate unit .. . and we therefore take the position that it is not before the Board, not having been excepted to by the complainant union. Mr. Ogburn (counsel for the Union) : We take the same position. In his argument, counsel for the Union stated : We are not basing our contentions in any respect on the fact that the union was a majority union . . . but we do appear before you to urge that you adopt the Examiner's report in toto. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Union and had engaged in concerted activities. As noted above, the respondent, on June 29, 1935, offered to take all strikers back pursuant to the terms of the June 20 arbitration award, which required the strikers, at least for the time being and until the seniority matter had been decided, to accept a seniority status inferior to that which they enjoyed at the time they went on strike. This offer was rejected, the Union taking the position that the strikers were entitled to return with unimpaired seniority. On July 2 the respond- ent offered the strikers the same seniority status, but in addition guaranteed them 6 months' employment at their former wage and such seniority as the Federal court might determine as a result of the pending injunction suit. This offer was definitely rejected on July 6, after officials of the Union had indicated on July 2 that it was unacceptable. By July 6, or shortly thereafter, the respondent had filled the places vacated by the strikers with new employees and some few strikers who had elected to return. As stated above, about 268 em- ployees went on strike April 20, 1935. On July 6 the respondent had about 218 employees on its pay roll who had been hired between April 20 and July 5 and whose names do not appear on the pay roll im- mediately preceding April 20. In addition, 11 strikers had returned prior to July 5. W. G. Nicholson, vice president of the respondent, and Hudson, the assistant general manager, testified that on July 5, 1935, the respondent had a, full crew of employees. The respondent had resumed full service in Omaha prior to July 5, 1935, and service in Council Bluffs was placed on a normal basis in August, although the respondent had a full staff of employees for the Council Bluffs service prior to July 5, 1935. After the Union rejected the respondent's offer of July 2, the re- spondent abandoned all efforts to effect a settlement and took the position that the strike was over and that, if strikers desired reem- ployment, they should file applications as new men. The Union, on the other hand, maintained its position that the strike was still in effect and that all strikers were entitled to reinstatement as a group, which position the Union has maintained at all times since the strike. On or about October 11, 1935, Mace Brown, president of the Omaha Central Labor Union, at the request of the Union, conferred with officials of the respondent and requested that strikers be reinstated as a group and that employees hired to replace them be discharged. Brown's request was refused. We are of the opinion that, since the strike was not caused by un- fair labor practices and was not prolonged by unfair labor prac- tices prior to July 5, 1935, at which date the respondent had replaced all the strikers, the respondent was under no obligation subsequently OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 95 to reinstate the strikers as a group and to discharge employees hired before July 5, 1935.' Nor do we believe, in view of the Union's un- equivocal position that its strike was still in effect, that the respond- ent was obligated to seek out individual strikers to offer them em- ployment in vacancies occurring from time to time. When the Union rejected the respondent's July 2 offer, the respondent rightly under- stood that all strikers were committed to continue the strike. We find that the respondent has not discriminatorily refused to reinstate the 248 strikers named in the complaint. We will, therefore, dismiss the complaint in so far as it alleges that the respondent com- mitted unfair labor practices within the meaning of Section 8 (3) of the Act by refusing to reinstate the strikers. D. The alleged domin ation and.s'upport of the E. P. A. The E. P. A. was organized among the respondent' s employees in February 1934, immediately after the Union had presented certain demands upon the respondent. William Sheets, who was employed as an operator until his discharge in July 1934, and Anthony Rubeck, who was employed as an operator and part-time road officer, were the chief organizers of the E. P. A. Sheets testified that he agreed to organize the E. P. A. at the request of Hudson, the assistant general manager, for the purpose of combatting the Union, and that his organ- izing expenses, including maintenance of headquarters at a hotel dur- ing February and March 1934, were paid for by the respondent. The demands the E. P. A. presented to the respondent on February 26, 1934, according to Sheets, were prepared by Hudson. Although the E. P. A. organizers freely solicited members in the spring of 1934, no regular membership meetings were held during that year, so far as the record shows ; nor were officers ever elected, although when first or- ganized, Rubeck was designated as president and Sheets as secretary. It appears that a few informal meetings were held at the homes of employees, but except as indicated above, the nature of the E. P. A. activities between the time of its organization and June 1935 is not shown. On June 17, 1935, an E. P. A. meeting was held at the home of an employee, and was attended by about 40 or 50 employees. A strike 7 See Matter of Export Steamship Corporation and National Marine Engineers Beneficial Association, 12 N. L. R. B. 309; Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, 627, enf 'd, Jeffery- DeWitt Insulator Company v. N. L. R. B., 91 F. (2d) 134 (C. C. A. 4), cert. denied, 302 U. S. 731 ; Matter of Black Diamond Steamship Corporation and Marine Engineers' Bene- ficial Association, Local No. 33, 3 N. L. R. B. 84, 93, enf'd, Black Diamond Steamship Corporation v. N. L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied , 304 U. S. 579; N. L. R. B. v. Mackay Radio d Telegraph Company, 304 U. S. 333 (1938) : ". . . it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers, and he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them." 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee of seven, including Rubeck, who at that time was employed as a road officer, and R. A. Davis, a working yard foreman, was selected to protect the interests of the employees who were not on strike. Rubeck, who still purported to act as president of the E. P. A., was requested by the Governor, on or about June 21, to appoint an arbitrator to the seniority arbitration board to represent the employees who did not go out on strike. At a meeting called by the E. P. A. strike committee and held in one of the respondent's cam barns on June 21, the working employees delegated full power to the strike committee to act for them with regard to the proposed arbitration on the seniority question. The strike committee selected Stryker as attorney. As noted above, Stryker appeared at the June 22 meeting of the seniority board and on June 24 announced his withdrawal therefrom and the decision of the non-strikers not to arbitrate seniority. Pursuant to authority granted by the working employees at a meeting on June 24, also held in one of the respondent's car barns, Stryker filed suit on June 28, on behalf of the E. P. A. and the working employees, to re- strain the respondent and others from carrying out the June 27 arbi- tration award restoring the strikers to work with unimpaired seniority. There is no evidence in the record that the E. P. A. continued to function as an organization after the injunction suit was filed on June 28. The last E. P. A. meeting occurred on June 24. Between June 24 and June 29, but not thereafter, the E. P. A. strike committee met with Stryker in connection with the injunction suit. So far as the record shows, the only evidence of the continued existence of the E. P. A. after the latter part of June 1935, is the fact that the injunc- tion suit, in which the E. P. A. was a party plaintiff, remained pending until February 27, 1937, and that Stryker, as attorney for the non- strikers, took part in the July 2 conference and in November 1935 moved the dismissal of Bowerman from the injunction action. In July 1938, shortly before the hearing in this case began, a Field Examiner of the Board telephoned Rubeck and suggested that the working employees should be represented in the hearing. Ru- beck thereupop conferred with Stryker as to whether the E. P. A. should intervene. Stryker advised that the E. P. A. should not in- tervene, since it was inactive and had held no meetings in several years; but advised that the employees who did not go on strike and employees replacing strikers should be represented separately by committees. Rubeck sent several non-striking employees to Stryker, and this group formed the committee representing the "Old Group" employees. Thereafter the "Old Group" committee selected five of the employees replacing strikers, who formed a separate committee representing the "New Group" employees. We conclude that the evidence fails to sustain the allegation that, the respondent dominated and interfered with and contributed sup- OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 97 port to the E. P. A. after July 5, 1935. Although doubtless the E. P. A. was organized in 1934 at the instigation and with the sup- port of the respondent, the evidence is insufficient to warrant the conclusion that the E. P. A. continued as an organization or that the respondent dominated, interfered with, and supported it, after July 5, 1935. We find that the respondent, since July 5, 1935, has not dominated or interfered with the administration of, or contrib- uted support to, the E. P. A. Accordingly, we will dismiss the allegations of the complaint in this respect. E. Interference, restraint, and coercion At the hearing, several strikers testified as to statements made to them in 1936 by officials of the respondent either when they turned in their equipment or applied for employment. Some time in 1936 Otis Criss, a striker, turned in his badge, tokens, and other equipment and collected his back wages. Criss did not apply for employment but told Hudson, the assistant general manager, "I might be coming up here to get a reference," to which Hudson replied, "I will give you a good one for your work except for one thing, ... you are too hot on this damn union, ain't you?" The foregoing testimony was not denied, and we find that Hudson made the statement attributed to him by Criss. Edward Reddick, a striker, testified that he "turned in" in Novem- ber 1936 and that he had a conversation with Hudson at that time. Reddick related the incident as follows : "I went in there and I drew my money, and while I was in there talking to him [Hudson], why, he brought up, the union and told me-I was not working-I was in need of work, and he told me if I dropped the union and would go to work, put in an application and go to work as a new man, that he would give me a chance again. Later on I went back and put in an application." Hudson testified that Reddick "turned in" March 17, 1936. According to a memorandum of the incident which Hudson made at the time, Reddick did not request a job and stated that he was going farming in Missouri. Hudson further testified that Reddick returned in December 1936 and filled out an application for employment. Hudson denied that he ever told Red- dick that he would be given a chance if he dropped the Union and applied as a new man. In May 1936 Max Rampacek, a striker, applied for employment. Hudson, according to Rampacek, told him, "The government says you have a right to organize, but the company doesn't say that." Hudson denied that he had made the foregoing statement to Ram- pacek. In October 1936 Ingvald Ingvaldsen, another striker, applied 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for work. He testified that Hudson said to him, "Its too bad that you joined the union, as many years as you worked for the Com- pany." Hudson denied having made this statement to Ingvaldsen, and claimed that Ingvaldsen "started the usual conversation that they are sorry that they done it and would like to have their job back and never would do it again, and such things as that." Walter Brandt, the superintendent of transportation, on the same occasion told Ingvaldsen, "You have a good record, and we have got nothing against you, although we didn't like it that you went out on the strike. . . . You made a costly mistake when you went out on a strike, as many years as you worked for the Company." Brandt did not deny having made the foregoing statement to Ingvaldsen, and we accordingly find that it was made. The statements attributed to Hudson by Reddick, Rampacek, and Ingvaldsen, although denied by him, are consistent with the statements made by Hudson and Brandt to Criss and Ingvaldsen, respectively. Under all the circumstances, we do not credit the denials of Hudson; we find that he made the statements attributed to him by Reddick, Rampacek, and Ingvaldsen. We find that the respondent, by the above statements of Hudson and Brandt, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE 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 REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We shall order the respondent to cease and desist from such interference, restraint, and coercion, and to take cer- tain affirmative action designed to effectuate the policies of the Act. 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. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1002, is a labor organization, within the meaning of Section 2 (5) of the Act. OMAHA AND COUNCIL BLUFFS STREET RAILWAY COMPANY 99 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (2), (3), and (5) 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, Omaha and Council Bluffs Street Railway Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, and 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 purposes of collective bargain- ing or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in its car barns in Omaha, Nebraska, and Council Bluffs, Iowa, notices to its employees stating that it will cease and desist as aforesaid; (b) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (c) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT Is FURTHER ORDERED that the allegations of the complaint that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2), (3), and (5) of the Act, be, and they hereby are, dismissed.