Ohio Greyhound Lines, Inc.

In the Matter Of OHIO GREYHOUND LINES, INC. and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EM- PLOYEES OF AMERICA AND DIVISION 12071 THEREOF (A. F. OF L. AFFILIATE) In the Matter of OHIO GREYHOUND LINES, INC. and BROTHERHOOD OF RAILROAD TRAINMEN, LODGE 974 In the Matter Of CENTRAL GREYHOUND LINES, INC. and BROTHERHOOD OF RAILROAD TRAINMEN, LODGE 974 Cases Nos. R-19385, C-1246, and C-1247, respectively. -Decided March 18, 1940 Motor Bus Transportation Industry-Interference, Restraint, and Coercion: advice by respondent and its counsel to employees to join one "outside" union rather than another-Discrimination: discharge of one employee because of his union membership and activity ; dismissed as to five employees ; charge dis- missed that reinstatement of former employee was for purposes of discriminat- ing against present employees in respect to seniority rights because of said employees' union membership and activity-Reinstatement Ordered: employee discriminatorily discharged-Back Pay: awarded from date of discharge to date of Intermediate Report, and from date of Order to date of offer of reinstate- ment-Investigation of Representatives: controversy concerning representation of employees : refusal to recognize petitioning union on ground Board had certified rival union with whom a contract was in force ; refusal to renew con- tract with rival union doubting its majority-Unit Appropriate for Collective. Bargaining: bus drivers employed by Ohio-Representatives: proof of choice : contention that majority claimed by petitioner was obtained by coercion- Election Ordered: B. R. T. and Amalgamated on ballot. Mr. Charles F. McErlean, for the Board. Mr. Manferd Burleigh, of Minneapolis, Minn., and Bowen, Best, Flanagan ctr Rogers, by Mr. Ivan Bowen, of Minneapolis, Minn., for the respondents. Mr. David Zimring, of Chicago, Ill., for the Amalgamated. IThe petitioner in the representation case (Case No R-1225) was Division 1183 of the Amalgamated On June 15, 1939, after the hearing, counsel for the petitioner represented to the Board in Washington, in a statement supported by affidavits, that said Division had been consolidated with Division 1207 of the Amalgamated, that the resulting Division was called Division 1207, and filed a motion to amend the caption in Case No R-1225 to indi- cate said change. On January 2 , 1939, the Board, after due notice to all parties in the proceedings , granted said motion. 21 N. L.R.B,No.74. 751 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. A. G. Johnson, of Chicago, Ill., and Mr. S. R. Harvey, of Cleveland, Ohio, for the B. R. T. Miss Margaret M. Farmer, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 8, 1938, the Brotherhood of Railroad Trainmen, Lodge 974, herein called the B. R. T., filed charges and on July 30, 1938, and on November 17, 1938, amended charges with the Regional Director for the Seventh Region (Detroit, Michigan) alleging that- Ohio Grey- hound Lines, Inc., Chicago, Illinois,2 herein called Ohio, 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. On July 1, 1938, the B. R. T. filed with said Regional Director charges and on July 30, 1938, September 23, 1938, and November 23, 1938, amended charges alleging that Central Greyhound Lines, Inc., Cleveland, Ohio.3 herein called Central, had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and (3) of the Act.4 On October 4, 1938, the Board, acting pursuant to Article II, Section 37 (h), and Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the above-mentioned cases, together with two cases involving Canadian Greyhound Lines, Ltd., herein called Canadian,-5 be consolidated for the purpose of hearing and all other purposes. 2 The address of Ohio as given in the charges is Detroit , Michigan. 3 The address of Central as given in the charges is Detroit , Michigan * On September 27, 1938, the Board ordered that the above cases be consolidated with two other cases. On October 4, 1938 , the Board revoked said order of consolidation. 5The two cases were Matter of Pennsylvania Greyhound Lines, et at ( Canadian Grey- hound Lines, Ltd.) and The Brotherhood of Railroad Trainmen, 3 N. L. R. B 622, which the Board ordered to be reopened for the limited purpose of taking additional testimony on the question of the jurisdiction of the Board over employees of Canadian , and a case involving employees of Canadian initiated by charges filed by the B R T. On June 2, 1939, after the issuance of the Intermediate Report by the Trial Examiner, the two cases involving Canadian were severed and a decision was issued • Matter of Pennsylvania Grey- hound Lanes, et at. (Canadian Greyhound Lines, Ltd.) and The Brotherhood of Railroad Trainmen; Matter of Canadian Greyhound Lines, Ltd and Brotherhood of Railroad Train- men, 13 N. L R. B . 28. We shall omit herein all discussion of the cases involving Canadian. OHIO GREYHOUND LINES, INC. 753 On January 3, 1939, the Board by its Regional Director issued its complaint in the consolidated cases, alleging that Ohio, Central, and Canadian had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint, ac- companied by notice of hearing, were duly served upon all parties. In so far as the complaint is based upon charges filed against Ohio, it alleges in substance : (1) that Ohio discouraged membership in the B. R. T. by discharging and thereafter refusing to employ two bus drivers, William Carey and Victor McDunnah, because they joined and assisted the B. R. T.; and (2) that by the above and other acts, Ohio interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. In respect to Central, the complaint alleges in substance: (1) that on or about November 24, 1937, Central discouraged membership in the B. R. T. by employing, in violation of an agreement between the Central and the B. R. T., one Donald Decker, a bus driver whom it had theretofore discharged for cause, and reinstating him to the seniority held by him prior to said discharge, thereby discriminating against Joseph Bynum and others of its employees because said em- ployees joined and assisted the B. R. T.; (2) that Central discouraged membership in the B. R. T. by discharging and thereafter refusing to employ four bus drivers, Charles A. Richards, Howard A. Lan- caster, Anthony V. Kletz, and Joseph Bynum, because said employees joined and assisted the B. R. T.; and (3) that by the above and other acts, Central interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On January 17 and 18, 1939, respectively, Central and Ohio, herein sometimes called the respondents, filed their answers to the complaint. Each respondent denied that it had engaged in the unfair labor prac- tices alleged in the complaint and each averred by way of affirmative defense (1) that the B. R. T. had been certified by the Board as ex- clusive bargaining representative for its employees, and that the Board is without jurisdiction to intervene in matters covered by the provisions of an agreement governing the conduct of employees and the manner of settling grievances entered into as a result of negotia- tions with the B. R. T. pursuant to said certification; (2) that the complaint is based upon charges involving persons who were not its employees at the time of filing said charges; (3) that there is a mis- joinder of causes of complaint; and (4) that the Board is without jurisdiction to join matters.of complaint in regard to one corporation with matters of complaint against other and separate corporations. 754 DECISIONS OF NATIONAL LABOR RELATION'S BOARD On September 15, 1938, Amalgamated Association of Street, Elec- tric Railway, and Motor Coach Employees and Division 1183 6 thereof (A. F. of L. affiliate), herein called the Amalgamated, filed with the Regional Director a petition and on December 12, 1938, an amended petition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of Ohio, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On January 13, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that said case be consolidated with the unfair labor cases for all purposes. Pursuant to notice, a hearing was held in the consolidated cases from January 23 to 27, 1939, in Detroit, Michigan, before Peter F. Ward, the Trial Examiner duly designated by the Board. The Board, Ohio and Central, the B. R. T., the Amalgamated, and the parties to the cases involving Canadian were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. During the hearing the Trial Examiner granted a motion of counsel for the respondents to introduce into the record by reference the decisions in Matter of Pennsylvania Greyhound Lines, et al. and The Brotherhood of Railroad Trainmen 7 and in Matter of Pennsylvania Greyhound Lines, Inc. et al. and Local Division No. 1063 of Amal- gamated Association of Street, Electric Railway and Motor Coach Employees of America.8 At the beginning of the hearing, at the close of the Board's case, and at the close of the hearing, counsel for the respondents renewed a motion made prior to the hearing to dismiss the complaint on the ground of misjoinder of causes of action and on the ground that the disputes involved therein were determinable under contracts which were in force between the respondents and the B. R. T. at the time the disputes arose and therefore not subject to determina- tion by the Board. During the course of the hearing, counsel for the respondents also moved to dismiss paragraphs 17 and 23 of the complaint,9 or in the alternative, that counsel for the Board be re- 9 Now Division 1207. See footnote 1 13 N. L. R,B. 622. BIN L. R B 1. 9 Paragraphs 17 and 23 of the complaint allege that Ohio and Central, respectively, had by acts set forth in other paragraphs of the complaint and by other acts not specifically set forth, interfered with and coerced their employees in the exercise of the rights guar- anteed in Section 7 of the Act. OHIO GREYHOUND LINES, INC. 755 quired to furnish a bill of particulars in respect to the allegations of said paragraphs, and moved that paragraph 25 10 of the complaint be dismissed on the ground that the matters alleged therein were deter- minable under the contract in force between Central and the B. R. T. At the close of the hearing, counsel for the respondents moved to dismiss the complaint on the additional ground that the allegations of the complaint had not been proved. The Trial Examiner denied these motions in part and in part reserved decision thereon. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Motions upon which the Trial Examiner reserved decision at the hearing and upon which he did not rule subsequently are hereby denied. On April 6, 1939, the Trial Examiner issued his Intermediate Re- port in which he found, so far as Ohio and Central are concerned, that each of said respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1) and Sec- tion 2 (6) and (7) of the Act, and recommended that the respondents cease and desist from such practices. He found further that the respondents had not committed unfair labor practices within the meaning of Section 8 (3) of the Act and recommended that the com- plaint to that effect be dismissed. On April 17, 1939, the respondents notified the Regional Director that they had complied with the recommendations of the Intermediate Report. On the same day the B. R. T. filed with the Board exceptions to the Intermediate Report in so far as said report recommended that the complaint be dismissed as to the employees named therein. The Board has reviewed the exceptions to the Intermediate Report and, except as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS it Ohio Greyhound Lines, Inc., is an Indiana corporation having its principal place of business in Chicago, Illinois. Under the name of Greyhound Lines it is engaged in the business of transporting by 10 Paragraph 25 of the complaint alleged that Central employed one Donald Decker after having discharged said employee for cause , and reinstated him to his original seniority rating in violation of an agieement between the B R T and Central , thereby discrimi- nating against other employees in respect to tenure , terms, and conditions of employment because said employees belonged to and aided the B R T 11The findings in this section , except as to the number of drivers employed by the com- panies in 1939 . are derived from the Decision in Mattel of Pennsylvania Greyhound Lines, at al and The Brotherhood of Railroad Travamen , 3 N L R B 622 , which was introduced into the record in the instant proceedings by consent of the parties 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motorbus for hire passengers, mail, express, and newspapers, under regularly published tariffs, through the States of Michigan, Ohio, and Indiana. Its gross revenue for the year ending December 31, 1936, was $610,637.61, and for the first 5 months of 1937, $247,088.25. Dur- ing the pay-roll period of January 1 to 15, 1939, it employed 55 drivers. Central Greyhound Lines, Inc., is a Delaware corporation with New York and Indiana subsidiaries, having its principal place of business in Cleveland, Ohio. It is engaged in the business of trans- porting by motorbus for hire passengers, mail, express, and news- papers under regularly published tariffs, through the States of Massachusetts, New York, Pennsylvania, Ohio, Indiana, Michigan, and Illinois. The consolidated gross revenue for the year ending May 31, 1937, was $5,022,641 and its total consolidated assets on December 31, 1936, were $7,325,546.37. On December 15, 1937, it employed approximately 650 drivers. The voting capital stock of both respondents is owned directly or indirectly by the Greyhound Corporation of Delaware. Both are closely affiliated with other Greyhound systems in the Greyhound Lines and, by means of joint operating traffic and facility arrange- ments with these systems and interchange arrangements with inde- pendent bus lines, operate as a closely coordinated part of an integrated system of national transportation. H. THE ORGANIZATIONS INVOLVED The Brotherhood of Railroad Trainmen is a national labor organization founded in 1883 to represent railroad trainmen in train and yard service. Since November 1933 it has admitted motorbus drivers to membership. During the year 1937 Lodge 974, which filed the charges in the instant cases, limited its membership to drivers of Ohio, Central, and Canadian. The record is not clear as to the present membership requirements of Lodge 974. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division 1207 thereof (A. F. of L. affiliate), is a labor organization. Although its exact membership requirements are not disclosed by the record, it is shown that the organization admits to membership bus drivers employed on the Ohio lines. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion For some time prior to April 22, 1937, there existed throughout the system of Greyhound Lines a labor organization generally re- ferred to as the Company Association of Employees. The govern- OHIO GREYHOUND LINES, INC. 757 ing body of this organization was composed of representatives of both employers and employees in the various Greyhound companies including Ohio and Central. On or about April 22, 1937, Grey- houncl officials informed the Company Association of Employees that, in view of the decisions of the Supreme Court of the United States rendered on April 12, 1937, in National Labor Relations Board v. Jones d Laughlin Steel Corporation, 301, U. S. 1, and companion cases, in which the Act was held to be constitutional, the respective Greyhound lines would no longer recognize the organization as the bargaining agent for their employees and suggested that its mem- bers seek an "outside" union as their representative in collective bargaining. At a meeting held on April 22, 1937, delegates to the quarterly meeting of the Company Association of Employees, including employees of Ohio and Central, discussed the advisability of joining either the Amalgamated or the B. R. T. The Greyhound officials and their counsel indicated a preference for the Amalgamated. In reply to questions asked hini by employees, counsel for the respond- ents stated that his preference was based upon the fact that the B. R. T. has _ sought legislation favorable to railroads and detri- mental to motorbus transportation. We find that by thus expressing their preference for one labor organization over the other at a time when representatives of their employees were discussing the selec- tion of a bargaining agelit the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discrimination in regard to hire and tenure of employment 1. The discharges on Ohio William C. Carey was first employed as, a driver on the,Greyhound Lines in June 1931. At the time of his discharge on or about May 28, 1937, he was employed by Ohio on its Detroit to Cincinnati run. Manferd Burleigh, the general manager of Ohio at the Detroit terminal , testified that Carey was discharged because of his poor driving record, culminating in two checker reports 12 showing that he (1) had loitered at stops and then exceeded the speed limit in order to arrive at the next stop on schedule; (2) had upon one 12 The various Greyhound .conrpanies'elnploy an outside- company periodically to Investi- gate the driving qualities of Greyhound drivers Employees of the outside company, known as "checkers," ride on the Greyhound busses or follow the busses in private cars and submit "checker" reports to a Greyhound supervisory employee on the bus driver 's observ- ance of company and State regulations , efficiency , and courtesy to passengers The checker reports on a driver are made a part of the driver 's permanent record with the Company and serve as a basis for either discipline or commendation. 283032-41-vol 21 49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion traveled over a road he was not authorized to traverse and had consequently arrived at his destination ahead of schedule; (3) had stopped his bus at a railroad crossing with the front wheels on the railroad tracks; and (4) had been discourteous to passengers. Burleigh testified that Carey had had several accidents and had repeatedly violated company driving and safety rules, that he had often discussed Carey's record with the latter and had warned him that if he could not improve his driving he might as well resign from his employment. Although Carey denied that he had been guilty of some of the violations of rules charged against him and sought to explain others, he admitted that Burleigh had discussed his record with him several times, and that upon the last of these occasions, about 2 weeks before his discharge, Burleigh had asked him to resign from Ohio. Carey joined the B. R. T. in April 1937. There is no evidence in the record to show that he otherwise took part in union activities or that Burleigh was aware of his union membership. We are of the opinion that Carey was discharged for reasons other than his union membership and activity. Victor illcDunnah was first employed as a driver on Central in 1934. In June 1937 he transferred to Ohio and at the time of his discharge on or about November 15, 1937, was driving on the Detroit to Cincinnati run. Burleigh testified that McDunnah's driving record was unsatisfactory, that he had often discussed it with McDunnah and had urged him to improve his driving, and that he finally discharged McDunnah because of two checker reports showing that he had skidded the wheels of his bus on a slippery pavement, had passed vehicles in a dangerous manner, had tried to stop for railroad crossings but was going so fast he found it impossible to do so, had almost struck the rear of a preceding car when he failed to notice that the car was slowing up for a right-hand turn, and had been discourteous to passengers. McDunnah denied that he had been guilty of some of, these acts.- Burleigh also testified that. McDunnah was irresponsible in his family affairs and had caused. Ohio annoyance by leaving his family unprovided for during his' absence while driving for a charter party. McDunnah admitted that at such times his wife appealed to Ohio officials for money "to tide her over" until his return. McDunnah was a member of the B. R. T. at the time of his dis- charge. There is no evidence to show that he otherwise participated in union activities. In October 1937 when two supervisory employees asked him if, he intended to walk out if the- B. R. T. called a strike, he evaded the question. We find that McDunnah was discharged for reasons other than his union membership or activity. OHIO GREYHOUND LINES, INC. 2. The reinstatement of Donald Decker by Central 759 Donald Decker was employed as a bus driver by Central prior to February 20, 1927. In February 1937 he was dismissed from the service by Manferd Burleigh, the regional manager for Central at the Detroit terminal, on charges of misconduct made against him by a rest-stop proprietor. The grievance committee of the Company Association of Employees took up his case with Central officials but failed to accomplish his reinstatement. However, Burleigh promised Decker to reconsider the case upon Decker's submission of more con- vincing evidence of his innocence. On November 24, 1937, the day a B. R. T. drivers'`strike became effective, Decker called Burleigh, in- formed him that he could furnish conclusive proof of his innocence of the charges against him, and requested reinstatement. Burleigh advised Decker that he could not reconsider his case at that time but offered to employ him as a new driver and to consider his claim to reinstatement at a later date. Decker accepted this offer, was immediately placed upon the "extra board" 13 and listed upon the employee roster as entitled to seniority as of November 24, 1937. Burleigh reconsidered Decker's case in April 1938. After ex- amining documents submitted by Decker at that time, including statements from witnesses as to Decker's conduct at the rest stop and a statement in Decker's defense prepared by the chairman of the griev- ance' committee of the Company Association of Employees for use at the time of Decker's discharge, he decided that the charges against Decker were groundless and that Decker should be fully reinstated to his former seniority rights and privileges. On April 24, 1938, Decker's seniority rating was changed from November 24, 1937, to February 20, 1927. He thereupon became senior man on the "extra board" and was enabled immediately to bid for and to obtain a regu- lar run to which, had he not been reinstated to his original seniority rating,, Joseph S. Bynum or one of a number of other drivers on the "extra board" would have been entitled. The complaint alleges in substance that Central reinstated Decker to his former seniority rating in violation of an agreement between Central and the B. R. T., and for the purpose of discriminating against Bynum and other employees in respect to tenure, terms, and condi- tions of employment for the reason that said employees joined and assisted the B. R. T. Although the reinstatement of Decker, occurring as it did during a strike of the B. R. T., is suspicious, we find that the record does not ^'The! "exfra board" is composed 'of drivers who do not hold regular runs They, to- gether with other.-drivers, may bid. for regular runs when such are available The.3uns are assigned to the bidder -with the highest seniority-rating. _ " 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support these allegaticns. Burleigh promised to reconsider Decker's case, provided Decker could submit further evidence of his innocence, long before Decker was placed upon the "extra board." He decided to reinstate Decker after a consideration of evidence which showed Decker to be innocent of the charges which had caused his dismissal. There is no evidence in the record to indicate that any of Decker's co-drivers on the "extra board," with the exception of Bynum, were union members at the time of Decker's reinstatement or that such reinstatement tended to discourage any driver from joining the union or from participating in union activity. We find that by reinstating Decker, Central did not discriminate in regard to the hire and tenure or conditions of employment of Bynum or any other employee on the "extra board" because of said employee's membership or activity in behalf of the B. R. T. We shall dismiss the complaint that it did so. 3. The discharges on Central Charles A. Richards was employed as a bus driver on_ Central prior to February 1927. At the time of his discharge on or about January 28, 1938, he was driving on the Detroit, Michigan, to South Bend, Indiana, run. Burleigh testified that Richards was frequently in- toxicated, had been warned upon several occasions that he would be 'discharged unless he could remain sober, and was finally discharged because he appeared on the night of January 27, 1938, at the Detroit bus terminal while intoxicated and initiated a fight among the drivers. Richards admitted that he had been warned that he must curtail his drinking in order to retain his job and that on the night in question lie had participated in a fight at the terminal while intoxicated. Richards joined the B. R. T. in May 1937, and went on strike with other B. R. T. drivers, in November 1937. However, he returngd to his run after the strike, which terminated on December 1, 1937, and worked for approximately 2 months before he wall discharged, There is no evidence to show that he participated in any union activity other than the strike or that his discharge was in any manner connected with such participation. We find that Richards was discharged for misconduct and not because of his union membership and activity. Howard A. Lancaster was employed as a driver on Central prior to February 1927. At the time of his discharge on or about. Augu,t 23', 1938, he was driving on the run from Detroit, Michigan, to"'South Bend, Indiana. Lancaster testified that he was discharged because of his failure to-report an accident in which he was involved on. August 9, 1938. He admitted that the accident was his fault, and that he had been OHIO GREYHOUND LINES, INC. 761 involved in other accidents in which he had been at fault during his employment with the Greyhound Lines. He also admitted that at the time of the accident he knew that the failure to report an accident was a violation of a rule set forth in his drivers' manual '4 and was considered by Central as a cause for dismissal. Lancaster joined the B. R. T. in May 1937. Except for his par- ticipation in the drivers' strike in November 1937, there is no evidence that he was active in union affairs. We find that Lancaster was discharged because of a violation of company rules and not because of his union membership and activity. Joseph S. Bynw im was employed as a bus driver by Central on June 14, 1937. At the time of his discharge on or about October 8, 1938, he was driving on the run from Detroit, Michigan, to South Bend, Indiana. Burleigh testified that his decision to discharge Bynum was based upon a checker report showing that Bynum was a reckless driver and upon a consideration of Bynum's entire record. His driving record, substantial portions of which were read into the record, shows that during his 17-month employment by Central, Bynum had had five ccidents, three of which were judged to be his fault, and adverse a checker reports showing numerous violations of safety rules. Bynum admitted that he had been at fault in three accidents. He also ad- initted that he told Burleigh at the time of his discharge that he knew his driving record was poor. Bynum joined the B. R. T. in October 1937. Except for his par- ticipation in the drivers' strike in November 1937, there is no evidence that he was active in union affairs. We find that Bynum was discharged for reasons other than his union membership and activity. Anthony Kletz was employed as a bus driver by Central in June 1930. At the time of his discharge on December 13, 1937, he was driving on the run from Muskegon, Michigan, to Chicago, Illinois. Kletz had.an excellent safety record with Central. On December 13, 1937, he was presented by Central's regional manager, P. C. Johnson, with a diamond button, earned as of October 30, 1937, and a safety placque inscribed "This is to certify that Anton V. Kletz, while em- ployed as a bus operator by the company, through his carefulness and his obedience to safety rules and regulations, has completed a safe driving record for five years ending October 30, 1937, and has been awarded a five-year non-accident button. This safety record merits the highest commendation and praise." Immediately following the presentation of these awards, Johnson dismissed Kletz from the service, allegedly because he became in- 24 Greyhound Lines Manual of Rules for Bus Operators, Respondent Exhibit 9. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volved in a minor accident through an error of judgment and because he violated a company rule in seeking aid in connection therewith from a fellow employee rather than from a supervisory employee. Kletz maintained that the circumstances surrounding the discharge and the manner in which it was carried out show that the accident was a mere pretext, not a bona fide reason for dismissing him from the service. He contended that he was discharged because of his union membership and activity. The accident occurred under the following circumstances. On Saturday, December 11, at 11:30 p. m., Kletz left Muskegon, Michigan, for Chicago, Illinois, with four passengers in his bus. He was in- formed that the usual route between Muskegon and Holland, Michi- gan, was blocked by snow and, on Johnson's orders, took an alternate route. He did not receive either information or instructions con; cerning the route from Holland, Michigan, to Chicago. A new road had been under construction for some time between the towns of Saugatuck and Douglas, Michigan. Although the new road was passable the bus drivers were permitted to and usually did use an old road which had been used as the regular route during the con- struction of the new road. On the night in question Kletz decided to use the old road because such a course would take him into Douglas "facing in the right direction." Shortly before entering Douglas, the old road crossed a bridge and immediately turned sharply to the left and slightly down hill along a river bank. When Kletz had proceeded for approximately 175 feet along the river bank he was suddenly confronted with approximately 200 feet of roadway which had not been cleared of snow and which was obviously impassable. Beyond this stretch the road had been cleared. Kletz decided to back the bus to the bridge, retrace his route to Saugatuck and take the new road to Douglas. However, when he attempted to back he discovered that he was mired, and when he removed his passengers and attempted to shovel the snow from around one wheel, the bus slid against the guard rails along the edge of the road nearest the river. After attempting unsuccessfully to free the bus, Kletz walked back to Saugatuck, telephoned to the bus depot at Holland and re- quested that one Keeter, a relief driver whom he knew to be sta- tioned there, but who could not, apparently, be summoned to the telephone, come to his aid with an extra bus and a tow chain. Kletz then returned to his bus. While he was awaiting Keeter, he dis- cussed his situation with a crew of highway workers operating a snow plow. The crew informed him that the road between Sauga= tuck and Douglas was clear of snow except for the short stretch in which the bus was mired, and that the - failure to clear that portion of road was due to the fact that a snow plow had-broken. He also' learned that he was the third bus 'driver who had been r{ OHIO., GREYHOUND LINES, INC. 763 mired in that particular location in 24 hours. The crew attempted but failed to move the bus. When Keeter received Kletz's request for aid, lie telephoned for instructions to Johnson at the latter's home in Grand Rapids. Johnson telephoned one Acton, a wrecking-car owner in Douglas whose services Central had used upon former occasions, and instructed him to pull Kletz's bus out of the snow. After Acton had freed the bus Kletz resumed his run to Chicago. Two panels of the bus were slightly damaged where they had rested against the guard rails. The passengers were not injured. At a hearing before Johnson, held on January 17, 1938, after Kletz's discharge, in accordance with provisions for the handling of grievances contained in a contract between the B. R. T. and Central, Johnson stated that the discharge of Kletz arose solely from inci- dents connected with the accident, and emphasized the fact that Kletz had violated company rules in reporting the accident to Keeter rather than to a supervisory employee, and in failing to seek in- structions in regard to moving the bus. In a subsequent hearing on appeal of the case, held before Budd, the president of Central, on June 4, 1938, Johnson admitted that Kletz had not been advised of the condition of the road south of Holland, Michigan, and that the choice of a route beyond that point and the decision to attempt to free his bus under his own power after it became mired were mat- ters within Kletz's discretion. Johnson considered that Kletz had used poor judgment in attempting to use the old road and felt that Kletz should have telephoned for instructions before attempting to move the bus. He again emphasized the fact that Kletz had asked aid from the wrong source. On the other hand, Kletz testified at this hearing that Johnson had repeatedly instructed his drivers to "use their heads" in emergencies, that he had not been directed to call his superiors for instructions upon previous occasions when he had been mired in the snow, and that upon such occasions, he usually had been able to free the bus under its own -power. Johnson did not deny that this was true. At the hearing in the instant case, Johnson abandoned his position that the accident was the sole cause of Kletz's discharge and testified that "based on his (Kletz) record of the past several years, plus the incident at hand, we did not-I did not consider him capable of re- maining in our service." This testimony is not consistent with the facts. Records of the hearings before Johnson and Budd, mentioned above, and of decisions in the case rendered by Benefiel, vice presi- dent of Central, and by Budd, and introduced in evidence by Central, show conclusively that Johnson discharged Kletz without any con- sideration of his past driving record. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Convincing evidence was introduced to show that Kletz was dis- charged because of his union membership and activity. Kletz was an active union member. He joined the B. R. T. in May 1937 and helped organizd the drivers at the Muskegon terminal. He twice tied with another driver for a union office in union elections. He then withdrew his candidacy in favor of the other driver who had greater seniority than he. He went on strike with other drivers in November 1937, and was active on the picket line. Johnson was on ` friendly terms with Kletz prior to the strike. He had selected Kletz as his personal driver from time to time and had received chickens and other commodities from Kletz, by way either of purchase or of gift, during the time he had known Kletz. Johnson was hostile, however, to union activity among his drivers. Although he had been instructed by his superiors to avoid discussing labor or the joining of any organization with his men, he went out of his way to inquire into the union activity of his men. Kletz -testified that Johnson had given Kletz his home telephone number with instructions to inform Johnson'immediately if he heard of a driver joining the union. Although Johnson could not recall this particular incident at the hearing, he testified that some of his drivers had had information concerning union activity among the drivers prior to the organizational drive of the B. R. T., that the men understood that they were free to call him at his home "in any emergency," and had informed him of such activity upon several occasions. Johnson further testified that his attitude upon such occasions was "not to go by that information I had from that party but to proceed on my own basis, I was usually able to ferret out my own information.'' In November 1937 Kletz was asked by a dispatcher whether he in- tended to join a drivers' strike called by the B. R. T. for November 24. He testified that when he signified his intention of striking with the other drivers, Johnson, who was standing by, "flared up" and exclaimed "Jesus Christ, you're not going out!" Johnson admitted that he may have spoken to Kletz upon this occasion but denied that he had made the remark attributed to him. Johnson could not recall the incident clearly, however, and we are of the opinion that Kletz's version of what occurred there is substantially correct. We find that Johnson was antagonistic toward the union activity of his drivers and that he was opposed to Kletz's action in joining the strike. Kletz was discharged approximately 10 days after the termina- tion of the strike. He contended that Johnson had decided upon _ his dismissal before receiving his report of the accident. In support of this contention and his contention that the accident in which he was involved on December 11, 1937, was a pretext rather than a OHIO GREYHOUND LINES, INC. 765 reason for eliminating him from the service and that the true reason for his discharge was his -union activity, he related that he was dis- charged in the following manner. On the morning of December 13, 1937, the drivers at the Muskegon terminal assembled in the drivers' room for the presentation of awards. Kletz received a diamond button for a,5-year no-accident xecord,. as, has been mentioned above. After the presentation of these awards, Johnson instructed Kletz to write a report of the accident of December 11. Immediately upon receiving this report, he requested all the drivers except Kletz to leave the room, read Kletz certain rules from the drivers' manual, the contents of which are not specified in the record, read Kletz a report of the accident written by Acton, the wrecking-car owner who freed Kletz's bus, and dismissed Kletz from the service. Kletz testi- fied that he was not afforded an opportunity to discuss the accident at that time but that Johnson, immediately after discharging him, offered to disregard the discharge, provided Kletz complied with Johnson's wishes in matters wholly unconnected with the accident; that Johnson said to him, "Well, you know, Kletz, if you was on the right side of the fence I could tear this up . . . I'll let you think it over 15 or 20 minutes," and that when Kletz failed to accept John- son's implied suggestion, Johnson reaffirmed his discharge. At the hearing Johnson stated that he had discharged Kletz after a consideration of his accident report. He denied that he had offered to disregard the discharge under any circumstances. We note, how- ever, that Kletz also testified to the occurrence of the above incident in the hearing before Budd, held 6 months prior to the hearing in the instant case, and that Johnson, although present and able to question Kletz at that time, had neither questioned Kletz nor denied that the incident had taken place. We find that Kletz was dis- charged in the manner described by him. The Trial Examiner recommended that the complaint be dismissed as to Kletz. He based this recommendation on his finding that fac- tors other than Kletz's union activity entered into his discharge and that the discharge may have been based upon such factors. 'He cited as an example, a ncontradictecl testimony that during the drivers' strike, Johnson and Kletz had a controversy concerning the payment for chickens supplied to Johnson from Kletz's chicken farm and that Johnson maintained that he had been forced to pay twice for the chickens. It may well be that the controversy concerning the pay- ment for the chickens contributed to Johnson's determination to discharge Kletz. We believe, however, in the light of Johnson's hostility toward the union activity of his men and his knowledge of Kletz's participation in such activity, that Johnson's reference to "the other side of the fence" can reasonably be interpreted only as 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a request that • Kletz abandon his union allegiance as ' a condition of - remaining in Central's employment. We believe, furthermore, that Johnson's hostility to Kletz's union activity furnished the principal motive underlying Kletz's discharge. We find that the respondent, through Johnson, discharged Kletz because of Kletz's union membership and activity, thereby discourag- ing membership in the B. R. T. and interferilig with, restraining,, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of Ohio and Central set forth in Section III above, occurring in connection with the operations of said com- panies described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Ohio and Central have engaged in certain un- fair labor practices, we shall order them to cease and desist from further engaging in such practices. However, since both respond- ents have posted the notice recommended by the Trial Examiner that they will cease and desist from engaging in unfair labor practices within the meaning of Section 8 (1) of the Act, we shall not require them again to post notices in regard to these practices. We have found that Central discriminatorily discharged Anthony Kletz on December 13, 1937. We shall order Central to offer to said employee immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges. Normally we would also order back pay from the date of discharge to the time of the respondent's offer of reinstatement. We believe, however, that in view of the Trial Examiner's recommendation, Central could not have been expected to reinstate Kletz after it received the Intermediate Report (April G, 1939), and therefore it should not be required to pay back pay from that time to the date of this Decision 15 We shall therefore order Central to make Kletz whole for any loss of pay he may have suf- fered by reason of the discrimination against him by payment to him of a sum of money-equal to the amount he would normally have earned from the date of Central's discrimination against him in De- ss See Matter of B. R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R . B. 760, 767. OHIO GREYHOUND LINES, INC. 767 cember 1937 to April 6, 1939, the date of the Intermediate Report of the Trial Examiner and from the date of this Order to the date of the respondent's offer of reinstatement pursuant to. the terms of our Order, less his net earnings 16 during said periods. VI. THE QUESTION CONCERNING REPRESENTATION During February or March 1938, the Amalgamated, claiming that it represented a majority of Ohio's employees, requested Ohio to negotiate a collective bargaining agreement with it. Ohio refused to bargain with the Amalgamated on the ground that the Board had certified the B. R. T.11 as exclusive bargaining agent for its em- ployees and that a collective bargaining contract with the B. R. T. was then in force. In October or November 1938, Ohio, in response to an inquiry by the Board, stated that it did not recognize the Amalgamated as the bargaining representative of its employees and that in view of the Board's certification of the B. R. T. as bargaining agent the claim that Amalgamated represented a majority of Ohio's employees should be presented to the Board. On December 1, 1938, Ohio refused to renew its contract with the B. R. T. on the ground that said organization did not at that time represent a majority of its employees. The B. R. T. contends that it is the representative of the drivers on Ohio pending the Board's certification of another organization as collective bargaining agent. We find that a question has arisen concerning the representation of employees of Ohio. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with operations of Ohio described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by Kletz in connection with obtaining work and working elsewhere than for Central , which would not have been incurred but for his unlawful discharge and refusal of employment 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, 8 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 him, and the amount thereof shall be paid over to the appro- priate fiscal agency of the Federal, State, county , municipal, or other government or gov- ernments which supplied the funds for said work -relief projects. 17Matter of Pennsylvania Greyhound Lines, et al. and The Brotherhood of Railroad Trainmen, 3 N L. R B. 622 768 DECISIONS OF NATIONAL LABOR RELATTONS BOARD VIII. THE APPROPRIATE UNIT In September 1937 we determined that bus drivers employed by Ohio constituted an appropriate bargaining unit.18 The Amalgam- ated, in its petition, and the B. R. T., during the course of the hearing, requested that said unit be retained in the instant case. We find that bus drivers employed by Ohio constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of Ohio the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES At the hearing the Amalgamated claimed to represent a majority of the employees of Ohio in the appropriate unit and introduced evidence in support of its claim. The B. R. T. contended that a number of employees claimed as members by the Amalgamated had been coerced into joining that organization. We are of the opinion that an election by secret ballot is necessary to resolve the question concerning representation which has arisen. We shall direct that the employees within the appropriate unit who were employed by Ohio during the pay-roll period last preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been dis- charged for cause, shall be eligible to vote. - Upon the basis of the above 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 ahd 'Mo- tor Coach Employees of America and Division 1207 thereof (A. F. of L. affiliate) and Brotherhood of Railroad Trainmen, Lodge 974, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Anthony Kletz, thereby discouraging membership in Brotherhood of Railroad Trainmen, Lodge 974, Central Greyhound Lines, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. "Matter of Pennsylvania Greyhound Lines, et al. and The Brotherhood of Railroad Trainmen, 3 N. L. R. B. 622, 671. OHIO GREYHOUND LINES, INC. 769 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, Ohio Greyhound Lines, Inc., and Central Greyhound Lines, Inc., have engaged in and are 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 within the meaning of Section 2 (6) and (7) of the Act. 5. A question affecting commerce has arisen concerning the rep- resentation of employees of Ohio Greyhound Lines, Inc., Chicago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 6. The bus drivers employed by Ohio Greyhound Lines, Inc., con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 7. Ohio Greyhound Lines, Inc., by discharging William Carey and Victor McDunnah,"and Central Greyhound Lines, Inc., by discharg- ing Joseph Bynum, Howard Lancaster, and Charles Richardson, and by reinstating Donald Decker, have not engaged in unfair labor ^practices_within the meaning of Section 8 (3) 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 Ohio Greyhound Lines, Inc., Chicago, Illinois, and its officers, agents, suc- cessors, and assigns shall cease and desist from in any manner in- terfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the Brother- hood of Railroad Trainmen, Lodge 974, or any other labor organiza- tion, to bargain collectively -through representatives of their own choosing, -and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act; AND IT IS FURTHER ORDERED that Central Greyhound Lines, Inc., Cleveland, Ohio, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Brotherhood of Railroad Train- men, Lodge 974, or discouraging membership in any other labor organization of its employees, by discriminating in regard to hire and tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, oir"coercing its employees in the exercise of the right to self-organization, to form. join, or assist labor organizations, to bargain collectively through 770 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Anthony Kletz immediate and full reinstatement to his former, or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges ; and make him whole for any loss of pay he may have suffered by reason of Central's dis- crimination against him by payment to him of a sum of money equal to that which lie would normally have earned as wages from the date of Central's discrimination against him in December 1937, to April 6, 1939, the date of the Intermediate Report of the Trial Examiner and from the date of this Order to the date of the offer of reinstate- ment pursuant to this Order, less his net earnings 19 during said periods; deducting, however, from the amount otherwise clue him. monies received by him during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government on govern- ments which supplied the funds for said work-relief projects. (b) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of sixty (60) consecu- tive days from the date of such posting, stating that Central will cease and desist in the manner set forth in paragraph 1 (a) above and that it will take the affirmative action set forth in paragraph 2 (a) above; that the respondent's employees are free to become and re- main members of Brotherhood of Railroad Trainmen, Lodge 974; and that the respondent will not discriminate against any employee because of membership in that organization; (c) Notify the Regional Director of the Seventh Region in writing within ten (10) days from the date of this Order what steps Central has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that Ohio Greyhound Lines, Inc., by discharging William Carey and Victor McDunnah, and Central Greyhound Lines, Inc., by discharging Joseph Bynum, Howard Lancaster, and Charles Richardson, and by reinstating Donald Decker, have discriminated in regard to the hire and tenure of employment of their respective employees, be, and it hereby is, dismissed. " See footnote 16. OHIO GREYHOUND LINES, INC. DIRECTION OF ELECTION 771 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Ohio Greyhound Lines, Inc., Chicago, Illinois, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Seventh Region acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the bus drivers employed by Ohio Grey- hound Lines, Inc., who were on its pay roll during the pay-roll period immediately preceding the date of this Direction of Election, in- cluding bus drivers who did not work during such pay-roll period because they were ill or on vacation and bus drivers who,were then or shall have since been temporarily laid off, but excluding bus drivers who shall have since quit or been discharged for cause, to determine whether they desire to be represented by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and Division 1207 thereof (A. F. of L. affiliate), or by Brotherhood of Railroad Trainmen, Lodge 974, for the purpose of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.