Dixie Motor Coach Corp.

In the Matter of DIXIE Mo'rOR COACH CORPORATION AND SUNSHINE Bus LINES, INC., and BROTHERHOOD OF RAILROAD TRAINMEN Cases Nos. C-1115 and R-11.30.-Decided July 26, 1940 Jurisdiction : motor transportation industry. Unfair Labor Practices In General: responsibility of employer for acts of employees Intel ference, Restraint, and Coercion: anti-union statements; declaration of union preference ; interrogation concerning union membership ; discharge, lay- off and transfer of committee members who attempted to gain recognition for the union ; interference 'with right of employees to bargain collectively ; sponsoring withdrawal petition and letters of withdrawal The granting of a general salary increase for the first time in four years during the pendency of a request for recognition held 8 (1). Discrimination: discharges for union membership and activity ; effect of co- existence of a discriminatory and proper motive for action'of employer. Testimony ender the Act: discharge of employee for giving testimony at earlier hearing. Collective Barrjabung: conditions precedent to employer's duty to bargain: designation of majority by express authorization ; effect of withdrawal of designation as result of employer's unfair labor practices ; duty to meet and negotiate : refusal to recognize and consent to deal with union ; duty to carry on negotiations in good faith ; failure to carry on negotiations in good faith : distraction of representatives ; attempt to negotiate with other than author- ized representatives ; destroying majority status by inducing employees to renounce membership. The respondents cannot effectively raise question of loss of majority where such loss was occasioned by their unfair labor practices in refusing to bargain and in engaging in other acts for the purpose of dissipating the majority. Remedial Orders : employer ordered upon request to bargain collectively with the union ; reinstatement and back pay awarded. Respondents ordered to bargain collectively where loss of majority was occasioned by refusal to bargain and other unfair tabor practices directed at dissipating majority Withdrawals found to be immaterial because executed through instigation of respondents. Refusal of employee discriminatorily discharged to accept prior to hear- ing respondent's offer of non-substantially equivalent employment unaccom- panied by back pay held no bar to reinstatement and to right to back pay for entire period of discrimination. Unit Appropriate for Collective Bargaining : motorbus drivers of both com- panies including extra drivers and excluding supervisors. Definitions : employer • enterprises operating under common control. Practice and Procedure : petition dismissed in view of finding of refusal to bargain. 2.5 N L. R B., No. 98, 869 2831x{(,--}°_- % of 2 --5C 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. E. P . Davis and Mr. Alba Burnham Martin, for the Board. Mueller c6 Mueller, by Mr. Karl H. Mueller and Mr. Harold E. Mueller, and Mr. J. C. Duvall , of Fort Worth, Tex., for the respond- ents. Mr. W. P. Nutter, of Kansas City, Mo., Mr. L. A. Fennell, of Dallas, Tex., and Mr . C. H. Smith, of Fort Worth, Tex , for the Brotherhood. Mr. Charles Romick, of Dallas , Tex., for the intervenors. Mise Ida Klaus, of counsel to the Board. DECISION AND ORDER STATEMENT OF T1-1E CASE On April 6, 1938, Brotherhood of Railroad Trainmen, herein called the Brotherhood, filed with the Regional Director for the Sixteenth Region (Fort Worth, ,Texas) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Dixie Motor Coach Corporation and Sunshine Bus Lines, Incorporated, Dallas, Texas,.herein called the respondents, and requesting an investigation and certification of representatives pursu- ant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 29, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, ordered an investigation of the question concerning representation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice: The Brotherhood thereafter, on September 1, 1938, filed charges with the Regional Director al- leging that the respondents had engaged in and were engaging in certain unfair labor practices. On September 7, 1938, the Board, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered that the representation proceeding and the proceeding in respect to the unfair labor practices be consolidated for the purposes of hearing and that one record of the hearing should be made. Upon the charges thus duly filed, the Board, by the said Re- gional Director, issued its complaint, dated September 10, 1938, against the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. DIME MOTOR COACH CORPORATION 871 The complaint and the accompanying notice of hearing thereon and on the petition for investigation and certification of representatives were duly served upon the respondents and upon the Brotherhood. During the course of the hearing, amended charges were received by the Trial Examiner, and the complaint was amended upon motion of counsel for the Board, duly made and granted, to acid thereto a further allegation of an unfair labor practice within the meaning of Section 8 (3) of the Act, and an allegation of unfair labor prac- tices within the meaning of Section 8 (5) of the Act. The complaint, as amended, charged in substance (1) that on or about September 15, 1937, and at all times thereafter the respondents had refused to bargain collectively with the Brotherhood as the duly designated representative of their motorbus drivers; (2) that the respondents had, by the discharge of and refusal to reinstate three named em- ployees, discriminated against each of such employees in regard to hire and tenure of employment because of his activities in behalf of the Brotherhood; and (3)' that the respondents had, by threats,-in- timidation, acts of discrimination, and by other acts, interfered with the right of their employees to self-organization and to engage in concerted activities. On September 20, 1938, the respondents filed their answer to the complaint as originally issued, and thereafter during the course of the hearing an answer was filed to the complaint as amended. The answer to the complaint as amended admitted the essential allegations as to the nature of the respondents' business but denied that the respondents had engaged in the unfair labor practices charged. Pursuant to notice, a hearing on the complaint and on the petition for investigation and certification of representatives was held in Dallas, Texas, from September 26 to October 12, from October 18 to October 20, and from October 26 to November 16, 1938, before Howard Myers, the Trial Examiner duly designated by the Board. At the commencement of the hearing, motions to intervene in the proceeding on the petition for investigation and certification of representatives were made on behalf of 53 motorbus drivers employed by the respond- ents. These motions were granted. The Board, the respondents, and the intervenors were represented by counsel and participated in the hearing. The Brotherhood was represented by a special organizer and by a field supervisor and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing'on the issues was afforded all parties. At the commencement of the hearing motions for intervention in the proceeding on the complaint were made on behalf of 46 motorbus drivers employed by the respondents on the ground that each of them had an interest in that proceeding in so far as it concerned the dis- 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge and possible- reinstatement of M. W. Warren, an employee named in the complaint as having been discriminatorily discharged by the respondents. The motions were denied by the Trial Examiner. Thereupon the motions were renewed but limited to a request for intervention as am' cus curiae. The motions as renewed were denied by the Trial Examiner but were received as pleadings. The respond- ents moved, at the commencement of the hearing, for further and better particulars with respect to the allegations of the complaint as originally issued and for a continuance of the hearing. The Trial Examiner denied the first part of this motion and assured the respond- ents sufficient time, after the conclusion of the Board's case, in which to prepare their defense to the charges alleged in the complaint. During the course of the hearing counsel for the Board moved, with- out objection, to amend the complaint in certain minor respects, and the motion was granted. Amended charges were offered and received on two occasions while the hearing was in progress, and counsel for the Board accordingly moved to amend the complaint so as to add thereto an allegation of the discriminatory discharge, within the mean- ing of Section 8 (3) of the Act, of J. B. McCullough and an averment of a refusal on the part of both respondents to bargain with the Brotherhood as the duly designated representative of their motorbus drivers, within the meaning of Section 8 (5) of the Act. The respond- ents objected to each of these motions on the ground of lack of prior notice and for other reasons. The motions to amend the complaint were granted by the Trial Examiner, and the hearing was adjourned for 5 clays to enable the respondents to prepare their answer to the complaint as amended. The respondents thereafter filed their answer to the complaint as amended, moved for further and better particu- lars and "to strike and dismiss," and filed a "plea in abatement." 1 The motions and the plea were denied by the Trial Examiner and his rulings are hereby affirmed. Motions to intervene in the proceeding on the complaint as amended were made on behalf of 61 motorbus drivers on the ground that these persons did not desire to be repre- sented by the Brotherhood in collective bargaining and that the Broth- erhood was not the duly designated representative of the respondents' motorbus drivers.2 The Trial Examiner denied the motions to inter- vene directly, as well as similar motions to intervene as amicus curiae, but received such motions as pleadings and permitted counsel for the 61 persons to participate in oral argument before him at the close of ' The motion "to strike and dismiss" and the "plea in abatement" Niel e based upon the contention that the allegation of a refusal to bargain is inconsistent in theory with the proceeding on the petition for investigation and certification of representatives and that the institution of such proceeding forecloses the Board from alleging a refusal to bargain The petitioners who signed the first set of motions to intervene in these pioceedings formed the nucleus of the second and third groups DIXIE MOTOR COACH CORPORATION 873 the entire case and to file'a brief for his consideration. At the close of the Board's case the hearing was again recessed for 5 days to enable the respondents to prepare a defense to the amended complaint. At the close of the Board's case, and again at the close of the entire case, the respondents made numerous motions to dismiss the com- plaint in its entirety and each material allegation thereof for want of competent proof and to strike or limit the testimony of certain witnesses. These motions were denied. Upon the conclusion of the entire case, counsel for the Board moved to conform the complaint to the proof and the Trial Examiner granted the motion solely for the purpose of correcting mistakes in spelling, dates, punctuation, typog- raphy, and similar matters. Various other rulings were made by the Trial Examiner during the course of the hearing on motions and on objections to the admission of evidence, and in his Intermediate Report the Trial Examiner ruled upon those motions as to %vhich lie had reserved decision during the hearing. The Board hIas re- viewed.-these rulings and all other rulings made by the Trial Examiner and finds that no prejudicial errors were 'committed. The rulings are hereby affirmed. On January 11, 1939, the Trial Examiner filed his Intermediate Report, finding that the respondents had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommenclulg that the respondents cease and desist therefrom and take certain speci- fied affirmative action deemed necessary to effectuate the policies of the Act. Thereafter the respondents filed exceptions to the Inter- mediate Report and a brief in support of said exceptions. A brief was also filed on behalf of the 61 persons who had moved to intervene m the proceeding on the complaint as amended. Thereafter, upon supplemental charges duly filed by the Brother- hood and pursuant to an order of the Board reopening the record in these cases and authorizing the Regional Director to accept supple- mental charges and to issue a supplemental complaint and notice of hearing thereon, in accordance with Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 1, as aniended, the Board, by the said Regional Director, issued its supple- mental complaint, dated September 11, 1939, against the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (4) and ,Section 2 (6) and (7)' of the Act. The supplemental com- plaint charged, in substance, (1) that the respondents had discrimi- nated against W. T. Wilkinson, a motorbus driver, by reason .of his activities on behalf of the Brotherhood and because he had given tes- timony at the earlier hearing, and (2) that the respondents had re- 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quired as a condition of the employment of one Burke that he refrain from associating himself with any labor organization or from engag- ing in any activities for the purposes of collective bargaining. The supplemental complaint and an accompanying notice of hearing were duly served upon the respondents and upon the Brotherhood. On September 20, 1939, the respondents filed their answer, denying that they had committed the unfair labor practices alleged in the supplemental complaint, averring by way of affirmative defense that Wilkinson had been laid off as a result of a consolidation of schedules made necessary for reasons of economy, and moving to dismiss the supplemental complaint. Prior to the commencement of the hearing, each of the respondents filed ii motion for further and better particulars. Pursuant to notice, a hearing on the supplemental complaint was held at Dallas, Texas, on October 19 and 20, 1939, before Henry W. Schmidt, the Trial Examiner duly designated' by the Board. The Board and the respondents, who were represented by counsel, and the Brotherhood, represented by its vice president, participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case, each of the respond- ents moved to dismiss the supplemental complaint for failure of proof, and the Trial Examiner granted the motion in so far as it related to, the allegations with respect to Burke. Upon the conclusion of the entire hearing, each of the respondents renewed its motion to dismiss the'complaint in so far as such motions were not granted earlier. and the motions were again denied. Various other rulings were made by the Trial Examiner on motions and on objections to the admission of evidence. The Board has reviewed these rulings and all other rulings made by the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 27, 1939, the Board issued an order directing that no Intermediate Report be prepared by the Trial Examiner on the sup- plemental complaint and the hearing thereon and that, in accordance with Article II, Section 37 (c), of National Labor Relations Board Rules and Regulations-Series 2, proposed findings of fact, proposed conclusions of law, and a proposed order be issued. On November 3, 1939, counsel for the Board filed a motion, addressed to the Trial Examiner, to conform the supplemental pleadings to the proof. The motion is hereby granted and the objections of the respondents are overruled. On May 15, 1940, the Board issued proposed findings of fact, pro- posed conclusions of law, and proposed order, copies of which were -duly served on all parties. Thereafter, the respondents and the 61 DIXIE MOTOR COACH CORPORATION 875 drivers who had moved to intervene in the proceedin on the original complaint filed exceptions to the proposed findings of fact, proposed conclusions of law, and proposed order. Upon request of the re- spondents the Board granted all parties permission to argue orally before it. A petition of the 61 drivers was subsequently filed with the Board requesting permission to submit a written argument in lieu of oral argument. The petition was granted and on June 20,, 1940, such written argument was filed in the form of a brief. On June 22, 1940, the respondents notified the Board of their desire to withdraw their i equest for permission to argue orally before it and requested that a brief already filed by them in support of their exceptions to the In- termediate Report in the first proceeding be considered in support also of their exceptions to the proposed findings, proposed conclu- sions of law, and proposed order. Upon being notified of the re- spondents' waiver of oral argument, the Brotherhood informed the Board that it did not desire to argue orally. The Board, thereupon, on June 25, 1940, cancelled the scheduled argument. The Board has considered the exceptions to the Intermediate Re- port, and to the proposed findings of fact, proposed conclusions of law, and proposed order filed by the respondents and by the inter- venors and the briefs in support thereof, and in so far as the excep- tions 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 1. TIIE BUSINESS OF TI-IE RESPONDENTS The respondent Dixie Motor Coach Corporation, herein called Dixie, is a Delaware corporation licensed to do business in the States of Texas, Arkansas, Oklahoma, and Louisiana. The respondent Sunshine Bus Lines, Inc., herein called Sunshine, is a Texas corporation licensed to "do business in the States of Texas and Louisiana. Both respondents, operating under joint management and to some extent under common ownership,3 have their principal place of business in Dallas, Texas, and are engaged in the transportation by motor coach of passengers, light express, and newspapers, between points in the State of Texas and other States, both directly by means of their own motor coaches and indirectly through arrangements with connecting carriers. Each of the respondents sells tickets good for continuous passage from the Tie stock of Dixie and the stock of Sunshine and owned by A W Riter and others The record does not indicate the extent of the holdings of Biter and the other stock- holders 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station points of each to all parts of the United States. Dixie and Sunshine are affiliated with the National Trailways System, a Nation- wide organization of motor-coach operators which arranges for the interchange of passengers carried by its affiliates. In connection with its transportation activities , Dixie employs ap- proximately 120 persons and operates a total of 60 motorbuses, 45 of which are engaged in the execution of regular schedules and 15 of which are used for extra trips , while Sunshine employs approximately 80 per- sons and operates a total of about 50 motorbuses , 35 of which are devoted to regular schedules and the remainder to extra trips. The respondents are subject to regulation by the Interstate Com- merce Commission. We find that the respondents are engaged in traffic, transportation, and commerce among the several States of the United States and that the persons engaged in the operation of the respondents ' motor coaches are directly engaged in such traffic , transportation , and commerce. II. THE BROTHERHOOD Brotherhood of Railroad Trainmen is an unaffiliated labor organi- zation. It admits to membership persons employed in the railroad industry and motorbus drivers employed in the bus-transportation industry, including motorbus drivers employed by the respondents, and excluding supervisors. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively The complaint alleged that the respondents have engaged in unfair labor practices within the meaning of Section 8 (5) of the Act by refusing to bargain collectively with the Brotherhood, on or about September 15, 1937, and at various times thereafter, as the exclusive representative of the respondents' motorbus drivers. 1. The appropriate unit The complaint alleged, and the petition for investigation and cer- tification of representatives filed by the Brotherhood claimed, that all employees of both respondents engaged as motorbus drivers consti- tute an appropriate bargaining unit. At the hearing the Brother- hood clarified its claim to include extra drivers and to exclude supervisors. The respondents and the intervenors did not object to the unit as thus alleged and claimed. The record reveals the following facts as to the relationship between Dixie and Sunshine: Although separate pay rolls and records are kept for each of the respondents, DIXIE MOTOR COACT CORPORATION 877 both are jointly operated and managed and, to some extent, commonly owned.' Hiring of employees for Dixie, and Sunshine is handled by the same persons. Wage rates are identical for motorbus drivers of both respondents for similar work and identical increases in wages have been effected for the employees of both simultaneously. We find, upon the basis of identity of labor policy, operations, management, and control, that, for the purposes of Section 9 (b) of the Act, both respondents constitute a single employer.5 In support of the Brotherhood's contention and of the allegation of the complaint that motorbus drivers constitute a unit appropriate for collective bargaining, the record shows the following facts; The Brotherhood has limited its organizational efforts and collective bar- gaining endeavors in the motorbus transportation industry generally to motorbus drivers. The qualifications, training, duties, hours of em- ployment, and other working conditions of motorbus drivers are sepa- rate and distinct from those of other classes of the respondents' employees. The evidence adduced at the hearing also reveals the following facts, pointing to a community of interest between the motorbus drivers of both respondents : Motorbus drivers of Dixie and Sunshine are subject to the supervision of a common superintendent of drivers. There is an interchange of motorbus drivers between both respondents. Common facilities for congregating and for the per- formance of clerical duties incident to their employment are available to and used by the motorbus drivers of both respondents. The record clearly indicates that, except for the fact that extra drivers are not necessarily engaged in driving regularly and are not permanently assigned to a fixed schedule, their duties and working conditions gen- erally are not different from those of regular motorbus drivers and that they are customarily promoted to regular work on definite schedules. We find that the motorbus drivers of Dixie and Sunshine including extra drivers and excluding supervisors, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to 4 See footnote 2, sapia 'Matter of C. A Lund Company and Noielty Workers Union, Local 1866 ( A F of L.) si,ecessoi; Mattel of Christian A Lund, doting business as C A Lund Company and, North- land Ski, Manufacturing Company, a corporation and Woodenwcaie Workers Union, Local 20481, and Matter of C: A Lund Company and Northland S),t Mann facturing Company and Woodenware Woi kers Union, Local 20481, 6 N L R 13 423, enf'd Al. L R B v Christian A Lund, doing business as C. A. Lund Co and h'oithland S),t iffy Co, 103 P (2d) 815 (C C A 8) , Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co, and Tict)cn and Lang Dry Dock Co and Industrial Union of Marine and Shipbuilding Workers of America, 5 N L R B 20 , Matter of The Calco Chemical Company, Ine, and The Calcociaft and Matter of American Cyanamid Company, The Calco Chemical Com- pany,1Inc . its subsidiary. and the•Beetlewaie Dept ,a svbdimision ,,ofrsaid,American < Cyanm- mid Company and Chemical Workers, Local No 20923, American Federation of Labor, 13 N L R B 34 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of Dixie and-Sunshine the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Brotherhood of,a majority in the appropriate unit A list, prepared by the respondents and introduced in evidence by the Board, of all employees in the unit hereinbefore found appropriate shows that for the first half of September 1937, 80 persons were em- ployed by the respondents in said unit. On behalf of the Brotherhood and the Board there were offered and received in evidence signed docu- ments entitled "Personal Authorization for Representation," in which the signer expressly authorizes the Brotherhood to represent him for the purposes of collective bargaining for a period of 1 year from the date appearing on the document. All these documents are dated as of some time in September 1937. There were also offered and re- ceived signed applications for, membership in the Brotherhood. The intervenors contended at the hearing and the respondents argue in their brief that, since the authorizations had expired by their own terms at the time of the hearing, they are no longer effective and cannot be regarded as evidence of representation by the Brotherhood. We find this contention to be without merit, as the question of whether or not the respondents refused to bargain collectively with the Brother- hood is one which must be answered in terms of the issues as raised by the complaint, wherein it is alleged that the refusal to bargain occurred on or about September 15, 1937, and at various times thereafter.° With respect to the applications for membership, the, respondents take the position in their brief that, since said applications were not, as of the date of the hearing, accepted by the Brotherhood in accordance with the requirements of its constitution, the applicants cannot be regarded as members of the Brotherhood. The organizer for the Brotherhood testified, in this connection, that the Brotherhood,had deferred action on these applications until such time as it was recognized by the re- spondents as the collective bargaining representative. We hold that, regardless of whether the applicants have in fact been considered mem- bers, their authorizations properly designated the Brotherhood as their representative for purposes of collective bargaining.t O Matter of Remington Rand, Inc, and Remington Rand Joint Pi otective Born d of the Distiiet Council Office Equipment W,orkeis, 2 N. L R P 626, enf'd, N L R B v Rem- inoton Rand, Inc, 94 F (2d) 862 (C C A 2), ceit denied, 5S S Ct 1046 -Matter of The Scirick Corporation and International Union, United Automobile lrorl eis of America, Local No. ti29, S N. L R R 621, enf'd, International Association of Machinists v Al L R B , 110 F (2d) 29 (C A for D C ), cert granted, 60 S Ct 721 , clatter of Acme Air Appliance Company, Inc in(] Local No 1224 of the United Electrical Radio & Machine 11 or l es of America, C 1 0 . 10 N L It It 1355 DIXIE MOTOR COACH CORPORATION 879 The genuineness of the signatures on the authorizations and ap- plications for membership was in some instances proved directly by the testimony of the signers, in some instances by the testimony of witnesses to the signature, and, as to the remainder, by stipulation entered into by the parties. The respondents were afforded an op- portunity to check the names appearing on the authorizations and applications against the list submitted by them. We have compared the authorizations with the respondents' list and find that, as of September 14, 1937, 49 employees of the 80 in the twit which we have found to be appropriate had signed authorizations and that, as of September 20, 1937, 52 employees had thus signed. We accordingly find that on September 14,1937, and at all times thereafter the Brotherhood was the duly designated bargaining representative of a majority of the respondents' employees in the unit found to be appropriate. Pursuant to Section 9 (a) of the Act, the Brotherhood was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, hours of employment, and other conditions 'of employment. 3. The refusal to bargain and other acts of interference a. The Brotherhood's first interview with the respondents and the events which followed Toward the middle of August 1937 several of the respondents' motorbus drivers decided that organization of their fellow drivers was desirable and necessary and attempted , toward that end, to enlist the aid of L. A. Fennell , the Brotherhood 's special organizer. On the morning of September 1, 1937, M. W. Warren, leader of the organiza- tional movement among the respondents' drivers, called Fennell on the telephone, announced that the drivers of Dixie and Sunshine were ready and anxious for active organization , and urged him to make the services of the Brotherhood immediately available to them. Accord- ingly that evening a meeting was held at a hotel in Dallas , Texas, with Fennell and about 13 of the drivers, at which the Brotherhood's special organizer explained the nature of the Brotherhood 's operations and its general policies and proposed to the drivers that, if they so desired , they sign authorizations and applications . All employees but one who attended the meeting thereupon executed authorizations and applications. It was agreed at the meeting that the signed documents would be retained by the drivers until a majority of their fellow em- ployees had signed, at which time all authorizations and applications would be turned over to Fennell . The drivers also undertook to solicit those employees who did not attend the meeting . The following eve- ning another group of drivers met with Fennell and the procedure of 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the previous day was repeated. About a week later, Warren informed Fennell that a majority of the drivers hzid signed authorizations-and applications and on September 13 or 14, in accordance with prior ar- rangements, the executed documents were delivered to Fennell. As of 'September 14, 49 drivers had signed authorizations, and the following day the total was augmented by 1. On the morning of September 15 Fennell called upon A. W. Biter, herein called Riter, president and general manager of the respondents, introduced himself by handing Riter one of his business cards, in- formed him that he had in his custody authorizations signed by a majority of the drivers of Dixie and Sunshine designating the Brother- hood as their collective bargaining agency, and handed him a letter, saying, "This will explain my mission." Riter perused the letter which was addressed to him as president of both respondents and was signed by Fennel! for the Brotherhood. Stating that a majority of the bus drivers had, selected the Brotherhood as their representative for the purpose of collective bargaining in accordance with the provisions of the Act, it contained the following questions : Will you kindly advise the date that would be agreeable with you, at which time we will present the signed authorizations from the bus operators of your Company, authorizing the Brotherhood of Railroad Trainmen to represent them as above referred to. Will you agree that upon presentation of signed authorizations from a majority of Dixie and Sunshine Trail- ways operators selecting the Brotherhood of Railroad Trainmen as their representatives, that, you will recognize the - Brother- hood of Railroad Trainmen as'the bargaining agency for the Dixie and Sunshine Trailways bus operators? The communication thus handed to Riter closed with the request that lie reply to a designated post-office box number and with the expectation of "Looking forward to a pleasant meeting." With regard to this interview, Fennell testified at the hearing that after looking at the letter Riter summoned Jameson, the re- spondents' superintendent of drivers, and, pointing to Fennell, re- marked, `He says that he signed up the majority of our bus drivers." Jameson replied that it was "all news" to him. Upon Fennell's request for a reply to the questions posed by the letter, Riter refused to comply at that time but reluctantly agreed to give Fennell an answer-within 10 days. Whereupon Fennell acquiesced and the two men parted. Riter's version of the interview differs from that of Fennell in that Biter testified , on direct examination by the re- spondents, that after Fennell had made his majority claim and had presented the letter and before Jameson was summoned Riter had demanded a showing of majority and that Fennell had insisted that DIXIE MOTOR COACH CORPORATION 881 he was 'not under a duty to comply with the demand for proof until the letter was signed by Riter. On cross-examination Riter varied his earlier testimony by admitting that Fennell had not asked him to sign anything but had said that he wanted the Brotherhood recog- nized. He insisted, however, that Fennell had refused, upon request, to support his claim of majority representation and that that request had been made, by Riter before the appearance of Jameson. Riter did not state, and the evidence fails to show, that he had, at the time he,apprised Jameson of Fennell's majority claim, also informed,,hium of his request for proof. Jameson's testimony is to the effect that he was, called into Riter's office and was informed of Fennell's majority claim, to which he expressed surprise; that after Fennell's departure Riter asked him what he thought of Fennell's statement that the Brotherhood had been designated by a majority of the operators and Jameson replied that he had nothing to say, as he was surprised; and that no other remarks about the conterence or the general sub- ject were made by Riter or Jameson. The Trial Examiner, who observed the demeanor of the witnesses and heard their testimony, found that Riter's statement concerning his demand for proof of majority was not worthy of belief. We find, in reliance on the Trial Examiner's evaluation of Riter's credi- bility and in view of the inconsistency in Riter's testimony on the important matter of whether Fennell had asked him to sign any documents, and further in view of Riter's failure under the circum- stances to inform Jameson that he had demanded such proof of Fennell, that no such demand was in fact made. On the morning of September 18, the day following. Fennnell :s first visit with Riter, there appeared among the employment advertise- ments in the Dallas Journal, a newspaper circulated in Dallas, the following item : W ANmrmD-50 bus drivers. Make application at 2805 Logan St., to J. A. Jameson between hours of S: a. m. and 4: p. in. From early in the morning of September 16 and throughout the following day a total of more than 100 applicants crowded the re- spondents' premises in response to the advertisement and were seen by many of the drivers. All drivers who testified on behalf of the Board or the respondents and who were asked about the advertise- ment stated that on September 16, or shortly thereafter, they learned about the appearance of the advertisement, having seen it themselves or having heard about it from other drivers. Included among these witnesses were employees stationed outside of Dallas. It was stipu- lated by the parties that if 49 named drivers were called as witnesses by the respondents each of them would testify that he had seen or heard about the advertisement. There is also evidence of discussion 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the drivers stationed at various points of the respondents" system of the appearance of the advertisement and of its possible significance. Drivers called by the Board as witnesses testified that the appear- ance of the advertisement, simultaneously with the manifestation of promotional efforts by the Brotherhood and immediately upon the heels of the respondents' first official information of the Brother- hood's majority claim, instilled in them and in fellow employees to whom they had talked a fear that the respondents intended immedi- ately to replace Brotherhood adherents with outsiders or led them to regard the respondents' conduct as a warning that continued support of the Brotherhood would exact from them the penalty of dismissal from their positions. These appeared to them to be the only reasonable implications of the respondents' actions in this regard, since none of them had at any previous time observed an advertisement for so large a number as 50 drivers; since they were not aware at that time of any anticipated acquisition of additional buses or bus lines by the respondents, and since they knew of no other normal business reasons for the sudden need for that number of drivers. Warren, the most active Brotherhood adherent among the respondents' drivers, testified as follows concerning the effect of the advertisement on him : "I feel like I was as strong for the Brotherhood as any man in it, and I know it affected me when I saw it." "* * * it kind of made ine sick at the stomach to think what they might be going to do to a bunch of the boys that needed the work." He clarified the basis of the drivers' fear that they would be displaced by outsiders and reconstructed the circumstances which engendered that fear as follows : "Well, we had no reasons to doubt it. There was 500 men out there, and the ad was in the paper, and we didn't know whether the company was bluffing, or whether they meant what they were saying in the newspaper ad. All we could do was wait and see." The testimony of another driver is that, when he was asked by counsel for the respondents during the course of their investigation prior to the hearing as to the effect of the advertisement upon him, he replied, "well, I just figured I was fired or would be fired." He attempted to convey to counsel for the respond- ents at that time the reasonableness of his reaction by posing to him the following question : "Mr. Duvall, if you went down in the morning and got a newspaper and there was an ad in there for 50 attorneys that Mr. Riter had advertised for 50 attorneys wouldn't you think you was out of a job?" The -respondents called as witnesses at least 12 drivers, each of whom was asked on direct examination whether the advertisement had had any effect on him and each of whom replied in turn that DIXIE MOTOR COACH CORPORATION 883 it had had no effect whatever. Of these witnesses 3 had not signed authorizations or applications for membership in the Brotherhood. It was stipulated by the parties that if 49 other named drivers were called as witnesses by the respondents each of them would testify to the same effect in this regard as the 12 who were interrogated at the hearing. On cross-examination, most of the 12 drivers testi- fied that they had never before seen or heard of an advertisement by the respondents for so many new drivers; that they had not learned of the acquisition or contemplated acquisition by the respond- ents of additional buses or netiv bus lines; and that although they could at the time think of no reason for the need for 50 drivers they were not 'concerned about their own tenure or about the advertise- ment. One of these witnesses thought that the respondents in fact had no employment to offer the applicants and that the adver- tisement had been inserted in the Dallas Journal for some reason known only to the respondents; another believed that the adver- tisement expressed a need for "500 drivers" and he wondered what disposition would be made of so large a number of new employees. The testimony of another driver, in response to a question of counsel for the Board as to the effect upon him of the advertisement, was as follows: "Well, any man that has got a job as a driver and sees that ad, he `will give it some consideration, he would think about it all right, but, still, so far as feeling that I was going to get let out and these men was going to take my job, I didn't have any feeling that way." Cross-examination of a number of these wit- nesses revealed that they had made a determined effort to see the advertisemment after its appearance had been called to their attention. At the hearing Riter claimed sole authorship of the idea of the advertisement and assumed the responsibility for its insertion in the new spaper. His testimony in this regard and as to the motives which underlay his action and the reasons which prompted it may be suuuuarized as follows: After the interview with Fennell on the morning of September 15, at which Riter had heard it claimed that a majority of his drivers had authorized the Brotherhood to represent them for collective bargaining, Riter became disturbed about what might happen to him, as lie was without previous ex- perience with "labor trouble" and had "lived closely to my men, some of them 20 years." Seeking consolation and advice, he tele- phoned to his lawyer at Fort Worth. The latter advised him that he had a right to know whether or not a', majority of his drivers belonged to the Brotherhood and that, although he was under a duty to refrain from interfering with the organizational activities of his employees, he had a right to protect the operation of his business. Whereupon Riter inquired as to the likelihood of a strike 884. DECISIONS OF NATIONAL LABOR RELATIONS BOARD "tying up my buses," and his lawyer replied that "the papers have been full of it," calling Riter's attention to strikes in Kansas City, and in the East. - Still without advice on "how to stop the matter, or get any relief," and "not giving the union one thought in my mind,` and without "any malice in rriy heart," he protested, he prepared for the contingency of a strike among the Brotherhood adherents. "So," lie explained, "I put a little ad in the newspaper." Choice of the number 50, he stated, was merely arbitrary and had no signifi- cance, although the evidence shows that 50 drivers had in fact signed authorizations by the time the advertisement was arranged for. Riter admitted on cross-examination by counsel for the Board 1 hat although he was "scared to death" his men might strike he had not inquired of any of the immediate supervisors of the drivers concerning the likelihood of such an event and made no other at- tempt to ascertain from the men directly whether his fears were reasonable and whether a possible strike could be averted. Although Fennell had stated to Riter at the close of their conference that he would get in touch with him in 10 clays, Riter insisted at the hearing that he had no assurance that Fennell would not call the' men out on strike, as lie had met Fennell for the first time that morning and could not be sure of his trustworthiness. The record shows that, as, a result of the advertisement, the re spondents hired four new drivers, two of whom had had no previous' experience and one of whom was discharged for incompetence about two months later. We find, in the light of the circumstances surrounding the insertion of the advertisement as hereinbefore related, that the respondents' sole purpose in publicizing an apparent need for 50 drivers, a number paralleling exactly the signed authorizations submitted to the Broth- erhood, almost immediately following the Brotherhood's pronounce- ment of its majority claim and in the face of its request for the fixing of a date for substantiating that claim by satisfactory proof, was to vitiate the Brotherhood's majority by confronting those who had designated it as their bargaining agency with the fear of loss of their employment if they failed to revoke such designation. We find further that the respondents planned by such strategy to escape their obliga- tion under the Act to deal with the majority representative of their employees. The respondents' efforts at this time to obliterate the Brotherhood's representation among their drivers took the further form of question- ing of drivers by supervisors as to the extent of their activities in behalf of the Brotherhood and of statements by supervisory employees to'their subordinates expressing chagrin at not having been consulted by the drivers before they allied themselves with the Brotherhood, deprecating the Brotherhood, suggesting membership in other labor DIXIE i1IOTOR COACH CORPORATION 885 organizations, and warning that the respondents would never recog- nize the Brotherhood or deal with it. On the day of the appearance of the advertisement in the Dallas Journal, Biter, according to his testimony, started on a trip over the respondents' system, visiting points outside of Dallas. The tour lasted about three or four days and included stops at the respondents ' stations in Texarkana, Texas, Hot Springs, Arkansas, and Shreveport, Louisiana. Warren, whose schedule at the time brought him into Texarkana , testified that on September 17, the day following publication of the advertisement for 50 drivers , he saw Riter at the Texarkana bus terminal and that Riter engaged him in conversation by stating that he had learned from J. C. Biter, the respondents' traffic manager, that Warren was "leader of this labor movement." Warren replied that he did not consider himself a "labor leader" and that there was in fact no leader, as all the drivers had gone into the organizational work together and all were "pulling for the Brotherhood." Riter thereupon expressed surprise at Warren's report on the Brotherhood activities among the drivers, particularly since Warren "had always made him a good man" and he had had "a lot of confidence " in Warren. Before the con- clusion of the conversation, Warren testified further, Biter told him "he was hurt to think us boys would join a union without coming to him first, but ,if we was going to join a union, why, he would rather see us get into the union that the Tri-state boys had," the reference being made to the drivers of a neighboring bus company. Warren had, during the course of conversation , inquired about the newspaper ad- vertisement and Biter informed him that it had been reported that the number of applicants on September 16 had reached about 450 or 500. Biter stated at the hearing that he might have talked with Warren at the Texarkana bus station at that time , since he usually talked-with "all the boys." He could not recall whether or not he had conversed with the president of the Tri-State Transit Lines during the course of that trip over the respondents' system but he did state, in response to a question of counsel for the Board as to whether the drivers of that bus company were organized, "I understand they are, and very sick of it"; "they wish to God they had never heard of it." Biter's source of information, he believed , was one of his own employees who had -talked with the "ringleader" of the Tri-State Lines' drivers. He testified that "just a part" of Warren's version of the conversation at Texarkana was correct. He denied having told Warren of J. C. Riter's report that Warren was the "leader of this labor movement" and stated that he did not think that. he had asked Warren about the "labor movement or the union." Riter then proceeded to recount as follows the circumstances surrounding his conversation with Warren 283036-42-vo1 25-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and its substance : No mention, as well as he could remember, was made of "the union." Warren initiated the conversation by express- ing to Riter a desire to talk with him when Riter returned to his office in Dallas. Whereupon Biter replied "if it is about union matters I have nothing to discuss with you on that whatsoever." Warren, nevertheless, pressed consideration of the subject thus outlawed by Biter and stated that someone had circulated the rumor that he was the "ringleader." Biter's comment to Warren concerning the rumor was that he had heard nothing about it, that Warren had always been one of his best operators, and that "I imagine if you boys were going to join a union or any organization you would probably discuss it with me before you have taken any steps," or words to that effect. Biter commented further as follows concerning the prior testimony of Warren : "I know I didn't mention any conversation about a union, any certain organization as he stated I said `Brotherhood.' The Brotherhood didn't enter my mind." All other portions of Warren's testimony on this point were specifically denied by Biter. The Trial Examiner did not credit Riter's denials in this respect and found that Warren's testimony concerning the conversation of September 17 was credible. We find, on the basis of the Trial Examiner's judgment of the witnesses and in view of the apparent inadequacy of Riter's story to challenge the significant statements attributed to him by Warren, some of which were directly admitted by Riter, and further in view of the concurrence of Riter's tour with the Brotherhood's first claim of majority, that Riter's specific denials are unworthy of belief and that Riter did in fact utter the statements to which Warren testified. During the course of his visit at Texarkana, Biter had an' inter- view with one Pete Hubbard, employed as a bus driver for the respondents in September 1937 and at that time an active supporter of the Brotherhood. Warren, whose schedule during the period in question coincided with that of Hubbard to the extent that both oper- ators spent 4 or 5 hours together in Texarkana on alternate nights, testified that at about 11 o'clock of the evening of September 16 Hubbard had, without solicitation, related to him as follows the cir- cumstances and substance of a conversation Hubbard had had earlier that evening with Riter : Hubbard had, upon the invitation of Biter, dined with the latter in his hotel room at Texarkana and during the course of the visit Riter asked Hubbard whether they "couldn't get together on the labor trouble and get it straightened out some way." Riter added that he would "rather be in Alcatraz than work organ- ized labor," that he had $20,000 to defeat the labor movement, that there would be bloodshed before "this thing" was over, and_ that he would sell the bus companies before he "would, work organized DIXIE MOTOR COACH CORPORATION 887 labor." Warren testified further that several days thereafter Hub- bard repeated to Fennell , the Brotherhood's organizer, in the pres- ence of Warren , the conversation he had had with Riter on Septem- ber 16; that as Hubbard related the conversation Fennell made a record,of it in writing ; and that when Hubbard finished his remarks and Fennell completed his writing both men read the -written me- morial and made certain changes. After these changes had been made, Hubbard declared the writing to be true and correct and Fen- nell thereupon asked him to sign it by writing his name close to the end of the statement so that no additions could be made. Hub- bard then affixed his signature to the document . The testimony of Fennell is that some of - the drivers had told him - on September 25 that Hubbard would give him a statement and that late that night Warren and the witness drove to Hubbard's home in Dallas. The statement was then prepared and signed, substantially in accordance with Warren's testimony, and Fennell affixed his own signature thereto as witness . Fennell stated further at the hearing that he had made no alterations in the instrument since it had been signed save to insert one word as to whose spelling he was uncertain at the time and as to which Hubbard had agreed that it might be added later when the proper spelling was ascertained by Fennell. Hubbard appeared at the hearing as a witness for the Board in response to a subpoena . He testified that he was, at the time of his testimony, an independent bus operator, having -leased some bus lines for a period of 5 ' years from the respondent Sunshine on September 16, 1938, and having executed arrangements with the respondent Sunshine for an interchange of passengers . His testimony concern- ing the interview with Riter on September 16, 1937, varied as fol- lows from that of Warren and Fennell : According to Hubbard the- conversation was concerned principally with Hubbard's plans to, lease bus lines from the respondents and a short digression was made at the instance of Hubbard to the subject of "the union " when the- latter asked Riter what he thought about "the union" and what was. going to be done. Riter expressed opposition to "the union" and asked why the men had not considered the matter with Riter. This, Hubbard testified, constituted in its entirety the scope and substance of the discussion and of Riter's remarks. A document, identified by Fennell as the one he had prepared during the course of his visit to Hubbard's home and as the one which Hubbard had signed and Fennell had witnessed, was thereupon handed to Hubbard by coun- sel for the Board for the purpose of refreshing the recollection of the witness as to the remarks of Riter on September 16, 1937. The document accorded with the testimony of Warren as to the - substance of the conversation between Hubbard and Riter and- contained an 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional remark attributed to Riter to the effect that the bus drivers ought to get together with Riter and notify Fennell that they had withdrawn from the Brotherhood. Upon being handed the document, Hubbard identified as his own the signature which ap- peared on it. Thereupon counsel for the Board asked the witness to state whether Riter had made any remarks on the date in question to which the witness had not already testified, and the witness replied that he did not remember, explaining that there were statements ascribed to Riter in that document which he could not recall. Asked whether the statements contained in the document were true and correct, the witness first replied in the affirmative and then varied his answer by saying "I don't remember them, whether they are true and correct, or not." He further varied his answer by stating that certain portions of the document were in fact not true and correct and indicated these portions as statements apparently attributed to Biter that the latter had $20,000 in "cold cash" to beat the union, that he would sell out or lease his "bus company" and go back to the farm,, that there would be blood shed "over this thing," that, lie would rather be in Alcatraz than "in this thing," and that the. oper- ators ought to get together with Riter and notify Fennell that they had withdrawn from the Brotherhood. Hubbard could not remember at the hearing whether he had related to Fennell at the time the writing was made the statements which he designated as being untrue and incorrect. Upon further questioning, Hubbard also tes- tified that he could not remember whether Riter had made the state- ments referred to by the witness as being untrue and incorrect. His testimony on this point closed with the statements that the document in question was the only one of its kind he had ever signed; that he believed the document had been prepared by Fennell during the course of a conversation between Hubbard and Fennell, "and he taken it down that way"; that Hubbard signed the writing prepared by Fennell as soon as the conversation closed; but that he 'Would swear that Riter never made the statements previously, pointed out as untrue and incorrect. Riter denied that he had, during the course of the conversation in question, made the statement, to which Hubbard testified. We find Riter's denial to be unworthy of credence, in view of his admission that he had told Warren on the day following the interview with Hubbard that he imagined "if you boys were going to join a union or any organization you would probably discuss it with me before you have taken any steps;" a remark substantially, similar to the one ascribed to Biter, in the, first, part of Hubbard?'s' testimony, and in the statement signed by Hubbard. The, Trial Examiner's reaction to Hubbard's testimony,, on the written statement was that "it is very evident that Hubbard's present DIXIE MOTOR COACH CORPORATION 889 faulty memory and his attempt to repudiate his written statement were due, not only to the fact that he is now an employer, but also to the fact that he is now under a financial obligation .to one of the respondents." We have no reason to doubt the testimony of Warren and Fennell that Hubbard in fact attributed the statements contained in the document to Riter. Nor do we question the truth of Warren's testimony regarding Hubbard's report to him on the evening of September 16, 1937, of the conversation between Hubbard and Riter. We find, also, as did the Trial Examiner, that Hubbard's apparent inability to recall whether Riter had in fact made the statements appearing in the written document which varied from Hubbard's actual testimony and his final denial in that regard were occasioned by the change in his relationship with the respondents from that of employee to that of lessee and fellow-employer and by the attendant loss of his former interest in the Brotherhood and in the respondents' bus drivers. We believe that Hubbard, an employee of the respondents and an active Brotherhood supporter in Septem- ber 1937, accurately reported to Warren and Fennell the substance of his conversation with Riter and that the statements attributed to Riter in the document were in fact made. Riter's animus toward the Brotherhood and his projected plan of action to combat its pending request for recognition during this period, as reflected in his conversation with Hubbard, are further revealed in an exchange of comments between him and Jessie Port- wood. The latter testified that one morning, during the month of September 1937 Portwood asked Riter while he was visiting the Trailways 'Coffee Shop, operated by Portwood for the respondents, what he thought would be the outcome of "this union activity" and that Riter replied that he did not know but that "it looks like they have me on the spot, if they don't withdraw." He had, how- ever, Portwood testified further, "one consolation," i. e., he could sell his business, because "I will refuse to work organized labor." Riter's testimony is that, while Portwood was operating the coffee shop, he visited it every morning and engaged in casual conversa- tion with her; that his exchange of comments with her in Septem- ber 1937 was of no different a nature from what it had been earlier ; and that he at no time had any conversation with her concerning the union or union activities. In view of Riter's general denials throughout the course of his testimony on direct examination, varied by some significant admissions elicited from him on cross-examina- tion, in view of the numerous inconsistencies apparent in his tes- timony, and in view of the plausibility, under the circumstances, of Portwood's statements at the hearing, we are unable to credit his rebuttal of the Portwood testimony, and we find accordingly. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The conversations of Riter at points outside of Dallas concerning the Brotherhood appear to have been paralleled , to some extent, by Jameson at Dallas. Warren testified to two discussions he had had with, Jameson, superintendent of drivers, on two occasions during the period following the appearance of the advertisement in the Dallas Journal. In these conversations Jameson asked Warren to comment on the report that he was the leader of the "labor move- ment"; inquired why the drivers "would join up with a union outfit like that" without first consulting him or Riter; suggested that, if organization was necessary, they should have affiliated themselves with the union in which drivers of the Tri-State Transit Lines were represented ; and stated that Riter had previously boasted to two of his competitors, Bowen and Patterson, that his men would not join a union. Warren protested that they had joined the Brotherhood because of the need for a strong organization ; that Jameson was not privileged to tell the men what labor organization to join; and that the men would exercise their own choice. Portwood's testimony is that after the drivers had designated the Brotherhood as their bargaining representative Jameson suggested,to her that "when those guys come in here that signed up with that union just ignore them. Don't even speak to them ," explaining that such treatment would "hurt them more than anything." When Port- wood protested that compliance with Jameson's suggestion would mean loss of the drivers ' custom at the coffee shop, Jameson replied that it did not matter whether or not the men ate at the coffee shop and that "Mr . Riter will stand by you in this." During the course of his testimony , Jameson denied having had a conversation with Warren or Portwood about "the union " and specifi- cally denied all portions of the testimony of the two witnesses on this point. On cross-examination Jameson stated that he had made it a habit to talk with Warren from time to time because Warren was "a pretty good sort of fellow to talk to "; that he had no reason to believe on the date of the first alleged conversation with Warren that the latter had not authorized the Brotherhood to represent him; that since this was Jameson's first experience with union activity he was "a bit curious" about the organizational efforts of the drivers on the date of the first alleged conversation , his curiosity having been initially aroused by Fennell's claim of majority on September 15; and that he "would always like to have more information " than he had at the time of Fennell 's first meeting with Riter. Jameson could not, however, remember having had any conversation with Warren in September 1937 which dealt with matters outside the regu- lar routine of their duties . The witness stated that Patterson and Bowen frequently visited Riter on the respondents' premises; that he DIXIE MOTOR COACH CORPORATION 891 was certain he had seen them both under those circumstances during the year 1937; that he had heard that the Bowen bus lines had been having some "labor trouble" in 1937; and that labor unions had constituted an interesting subject of conversation during the year or year and one-half preceding the hearing. More specifically with respect to the circumstances surrounding the alleged conversation with Portwood, cross-examination of Jameson elicited the following testimony : He had known Portwood about 5 or 6 years at the time of hearing, having patronized the cafe at which she had been employed prior to her association with the respondents and, having been instrumental in obtaining her services for Riter in the management of the coffee shop. After she became manager for the respondents, he visited the coffee shop frequently and talked with Portwood from time to time while partaking of the food served in the shop, addressing her as "Aunt Jessie" and "Pete" and being addressed by her as "Joe." We believe and find, in view of the nature of Jameson's testimony, that the alleged conversations .With Warren and Portwood took place in accordance with the testi- mony of these two witnesses. We find that the statements of the respondents' management and supervisory officials constituted interference with the right of the respondents' employees to self-organization and to collective action through representatives of their own choosing. Coupled with the act of inserting the newspaper advertisement for 50 bus drivers, both occurring at a time when the Brotherhood's request for recognition was outstanding, such statements reveal the respondent's plan to compel withdrawal of support from the Brotherhood and thereby to defeat the Brotherhood's majority claim and free the respondents of their duty to recognize and deal with that organization. The respondent's efforts during the period now under consideration became further manifest in the granting, without prior notice, of a wage increase of 5 per cent to all employees on September 17 or 18, operative as of the first half of that month, and in adjusting dis- parities in the salaries of certain classes of bus drivers. The un- contradicted testimony of the respondents' drivers is that no general wage increase had, up to that time, been effected by the respondents for about 4 years. The respondents' office manager, in charge of the preparation of the respondents' pay roll, testified that he was directed by Riter, a few days before the checks for the first half of September were written and distributed, to increase the pay roll by 5 per cent. Riter testified that he had been considering the general increase as early as July or August and had planned to make it effective as soon as certain outstanding debts had been discharged by the respondents and that. there was no causal connection between the granting of the 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase and the Brotherhood's activities. We find, on the basis of the evidence as hereinbefore discussed, that the respondents aug- mented the salaries of their employees at this time as a further device for discouraging their organizational efforts." b. The Brotherhood's second interview with the respondents and the events which followed On the evening of September 21, 1937, 16 or 19 drivers of both respondents, together with Fennell and two other Brotherhood rep- resuntatives, held a meeting for the purpose of electing a committee to meet with Riter the following morning. According to the wit- nesses called by the Board, the invitation for the meeting with Riter was extended by the latter. Warren testified that Riter had informed two of the drivers that he was desirous of meeting with a committee of his "old men" and had suggested names of drivers whom he considered as falling within that classification. Warren objected to Riter's method of selection and with the aid of some of his fellow drivers arranged for the meeting which was held on Sep- tember,21. Although Riter stated at the hearing that the initiative for the conference was assumed by the drivers, there is substantial evidence which leads us to believe and find that the interview with Biter took place at the latter's behest. Those present at the meeting of September 21 elected a committee of four drivers, two representing each of the respondents, to meet with Biter and to request that he recognize the Brotherhood. Fennell prepared and handed to the spokesman for the committee, for submission to Biter, a document entitled "memorandum of agreement." The document, in the form of a proposed agreement to be executed by the Brotherhood and the respondents, provided that it was mutually understood by the parties that the Brotherhood, by virtue of its majority representation, was the exclusive representativ a of the respondents' motorbus drivers and that representatives of both parties would thereafter confer as to working conditions in an effort to reach an agreement. The committee accordingly met with Riter on the morning of September 22. By arrangement between Fennell and the committee members, it was agreed that the former would wait at a point near the respondents' premises, with the authorizations in his possession, until Riter asked to see the authorizations, at which time one of the 8 See Matter of The A . S. Abell Company, a Corporation and' International Printing and Pressmen's Union , Baltimore Branch, Baltimore Web Pressmen's Union No . 31, 5 N L R. B. 644, enf'd as mod., N. L. R. B. v . A. S. Abell Co., 97 F. (2d ) 951 (C. C. A. 4) ; Matter of The M. H. Ritxwoller Company and Coopers' International Union of North America, Local No 28, 15 N . L R B 15, enf'd as mod , The M H. Ritcwoller Co V. N L R. B, May 8, 1940 (C. C. A. 7) ; Matter of Hercules-Campbell Body Co., Inc. and United Automobile Workers of America, 7 N L R . B. 431. DIXIE MOTOR COACH CORPORATION 893 ^comniittee members would so inform Fennell and he would produce them to prove the Brotherhood 's majority.' There is some indication in the record that this arrangement was to go into effect after Biter signed the "memorandum of agreement " recognizing the Brotherhood. Three of the four committee members testified , in substance, as follows concerning the nature of their interview with Biter : When the committee entered Riter's office , he opened the interview by stat- ing that he wanted to have a "heart to heart" talk with the "boys" in an effort to arrange a settlement of the differences on both sides without the medium of an organization . He suggested further that, if the drivers had in fact decided to enlist the aid of a labor organi- zation, there were organizations other than the Brotherhood which he wanted them to investigate before accepting the Brotherhood. After further remarks in a similar vein by Riter, the committee 's spokes- man explained that the committee had been elected to request recog- nition of tlra Brotherhood and, handing Riter the "memorandum of agreement," added that the committee would engage in a collateral conversation with Biter on other subjects after the latter recognized the Brotherhood by signing the document. Riter read the "memorandum of agreement" but refused to sign it and, upon request, was permitted to retain it in his possession. After a few moments, ' Riter proceeded to conclude the conference by saying, "Well, I guess there is nothing more to talk about," at which point the committee members rose and prepared to leave the office. Biter beckoned to them to stay and thereupon read aloud for about 15 -minutes from an article appearing in a publication which the committee members believed to be a magazine entitled the Texas Parade. The article, in so far as the witnesses were able to recall, dealt with the Act and with its probable invalidity and led the committee members to believe that if they continued their organiza- tional plans under the aegis of the Brotherhood they would not enjoy the protection of the Act. The article appears to have evoked no comments from Riter or the men, and the committee thereupon proceeded to leave Riter's office . In the course of their ' exit, one of the committee members turned to Riter and asked him not to feel that his drivers had "turned against him" by joining the Brotherhood , as they felt that they needed an organization to achieve a general seniority policy and other improvements in their working conditions . Rites replied that he did not "feel hard" toward the drivers and that he considered the four committee mem- bers "the best men" in his employ . Thereupon the committee left and reported the results of the conference to Fennell. Biter denied that he had made the preliminary statements at- tributed to him by the three committee members but admitted having 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD read to them from the magazine and supplemented their testimony on that point by stating that the article was one entitled "Employers Still Have Some Rights." It declared, according to his testimony, that employers had a right to protect their business. He stated further that he was unable to produce a copy of this article or of the magazine in which it appeared. With respect to the request for recognition, Riter testified that after glancing at the "memorandum of agreement" he refused to sign the document, explaining to the committee that he did not think the Brotherhood represented a_ majority of the drivers and that Fennell had,,on an earlier occasion, insisted that he would not comply with Riter's request to substanti- ate his majority claim until Riter signed an agreement recognizing -the Brotherhood. The committee members stated at the hearing that Riter did not question the Brotherhood's majority status, that the subject of proof was not mentioned by either party at the conference, and that if Riter had asked to see the authorizations the committee would have summoned Fennell who was waiting nearby for exactly that contingency. We find the testimony of the three committee members as to the circumstances and substance of this conference to be credible. We can not credit either Riter's denials or his testimony that he re- quested the committee to substantiate the Brotherhood's claim of majority, since the tone of the conference clearly indicates Riter's unwillingness to recognize the Brotherhood under any circumstances and his marked disposition, already manifested by the earlier acts of the respondents as hereinbefore discussed, to discourage adherence to the Brotherhood. The second request of the Brotherhood for recognition was countered by more direct attempts on the part of the respondents to dissipate the Brotherhood's majority than those which had followed Fennell's first visit with Riter on September 15. A few hours after the second futile attempt by the Brotherhood to gain recognition as the duly designated representative of the respondents' drivers,, the respondents launched an active campaign to compel those who had signed authorizations or applications to revoke their designation of the Brotherhood or their request to be admitted to membership therein. Simultaneously, and in pursuance of the same basic pur- pose, the respondents sought, by various devices, to diminish the influence of the four committee members among their fellow drivers. Some time during September 22, after the committee had un- successfully sought Riter's signature to the "memorandum of agree- ment," a petition was prepared and circulated for signature among the respondents' drivers at Dallas by one Hurley, a joint employee of both respondents who had openly opposed the Brotherhood and DIXIE MOTOR COACH CORPORATION 895 had, not signed an authorization or application. For several days thereafter it was presented to drivers stationed at points outside Dallas. The testimony of some witnesses is that 'they were asked to sign two petitions, a procedure explained to them by Hurley as warranted by Riter's demand for a copy. Addressed to Fennell, the petition stated that "after thoroughly considering our applica- tions, we have fully made up our minds that we do not care to belong to any union. 'You are therefore instructed to cancel our applica- tions for membership in the Brotherhood of Railroad Trainmen." The petition as mailed to and received by Fennell bore the signa- tures of 43 drivers. Several drivers who were stationed in Dallas at that time testified that Hurley had threatened them with loss of their employment, or with more stringent requirements in connec- tion with the performance of their duties if they failed to sign, or with the statement that Riter was giving them just one chance to abjure their interest in the Brotherhood. On the day- of the ap- pearance'of the petition, Fennell was notified of its circulation and of the threats which accompanied its presentation, and accordingly instructed his informant to notify all drivers who had executed authorizations or applications to sign the petition upon request in order to safeguard their jobs, explaining that the withdrawals from the Brotherhood as thus effected would not be considered valid be- cause of the apparent coercion in their execution. Fennell also sug- gested to his informant that he thought it would be advisable if two or three drivers refrained from signing the petition. Fennell's instructions were thereupon accorded wide circulation throughout the respondents' system. Hurley testified that the idea for the petition originated with him on the day of its circulation and that he had justified his action in that regard to Warren by stating that if the latter vas privileged to request' the drivers to join the Brotherhood Hurley was similarly free to persuade them to the contrary. After concluding that a petition should be circulated and after discussing the matter with some of the drivers whose names he was unable to recall at the hear= ing, Hurley explained his idea to one Jack Hart Warren, employed as a bookkeeper by the respondents, and left with her the assignment of composing the petition and typing it. The bookkeeper thereupon, during general office hours, complied with Hurley's request, using the respondents' typewriter and stationery. She was assisted by Hurley only to the extent that he gave her Fennell's address, which he obtained from one of the drivers whose name he could not recall at the hearing. When the petition was ready for circulation, Hurley began to approach the drivers at Dallas for their signature, explain- ing to them, according to his testimony, that some of the boys were 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signing out of the union, asking them to read the petition, and sug- gesting that they use their independent judgment in determining whether or not to comply with his request. Some of the drivers thus approached replied that they wanted to sign the petition, while others stated that they had been directed to sign anything that-Hur- ley presented to them for signature. Although Hurley denied hav- ing threatened or intimated loss of their jobs to the men he approached, he did testify to the following exchange of remarks between himself and one of the drivers at Dallas: Hurley walked up to the driver in question and said, ". . . the boys are signing out of the union. Would you be interested?" to which the driver replied, "Hell, no, I don't give a God damned if I get fired; the job ain't worth a God damn no how." Later that evening, Hurley stated, the driver sought him out and signed the petition. At about the same time, another driver who had previously resisted Hurley's request also asked, in the following manner, to be permitted to sign : . .. you have got me whipped. I am ready to sign it." On the night of September 22, after he had circulated the petition among the drivers stationed at Dallas, Hurley started on a tour of out-of-Dallas points. His testimony as to his itinerary and its attendant achievements and consequences may be summarized as follows : Some time after 11: 30 p. in. on September 22, he left Dallas for Denton, Texas, in his own automobile, driving about an hour and 10 minutes. From Denton lie drove on to Gainesville, Texas, a dis- tance of about 60 miles. His next stop was Paris, Texas, -where he arrived at about 6 o'clock on the morning of September 23. He then proceeded on to Texarkana, Texas, where he was joined for part of his tour by one Smith, mechanic for Dixie at the Texarkana shop. The need for a companion at this point was occasioned by Hurley's fatigue and by his consequent desire for relief from driving; the choice of Smith was based upon his superior knowledge of stations and schedules to be encountered during the next phase of the tour. Hurley and his aide then drove to Hot Springs, Arkansas; thence to a station in a small town, whose location Hurley could not recall, and finally returned to Texarkana. Hurley completed his travels by returning from Texarkana to Dallas, arriving at his ultimate desti- nation at about 1 or 2 o'clock on the morning of September 24 and going home to bed immediately. He could not recall whether or not he resumed his regular work with the respondents on the evening of September 24 or whether he spent that entire day sleeping. At all points to which his itinerary took him Hurley approached the respondents' drivers at the station, or while on duty, or at their homes and handed them the petition. At Denton and Gainesville he visited some of the drivers at their homes during the early hours DIXIE MOTOR COACH CORPORATION 897 of the morning and aroused them from sleep. One of the drivers this awakened greeted his nocturnal visitor with the question of "what in the hell" Hurley was doing at his home at that hour of the night. Hurley explained his unusual procedure by replying, "Thee boys is getting up a petition and drawing out, and I came by to see if you wanted to sign." Hurley's host thereupon proclaimed his readiness to sign and added his signature to the list already on the petition. Two other drivers, whose sleep had been similarly dis- turbed, appeared to have entered into no colloquy with their guest and signed the petition "without hesitating a moment." Zeal for thoroughness in the performance of his task also caused Hui-ley to hail at least one of the drivers while the latter was engaged in -driving a bus on the road and to summon him to halt and park by ,waving at him with a flashlight. Little difficulty was encountered 'by Hurley in obtaining signatures to the petition among the out-of- Dallas drivers. Most of them informed hun of their anticipation of his arrival and told him that Warren had directed then to sign anything presented to them by Hurley. During the course of his uninterrupted tour Hurley had traversed a total of over 700 miles of the States of Texas and Arkansas, a factor occasioning the purchase of two new tires at Texarkana, because, as he explained at the hearing, "When I went over that gravel road my tires wasn't any too good and it cut them up pretty bad." He had spent at least 24 hours without sleep and had re- mained away from work for about 2 clays. He could not recall at the hearing the amount lie had expended in connection with the trip, his memory being completely bank even as to the ,price lie had paid for the new tires. When Hurley had 'gathered all the signatures he thought be could get, he 'mailed the petition to Fennell by regis- tered mail on September 28, Jack Hart Warren having addressed the envelope. Witnesses for the respondents denied any knowledge or sponsor- ship of Hurley's activities in this regard, Riter testifying that he had learned for the first time of the withdrawals either at the end of 1937 or the beginning of 1938. Other evidence, however, plainly belies these denials, and we consequently do not, credit them. In statements which we have already found Riter had made shortly after the appearance of the newspaper advertisement for 50 drivers ' Riter had alluded to the revocation of authorizations as a means of removing the problem created by the Brotherhood and suggested that the drivers get together and notify Fennell that they had with- drawn from the Brotherhood. Thus the events which came to pass immediately after the committee's interview with Riter on Septem- 'her 22 had already been contemplated by Riter after his first meeting 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Fennell. A letter sent by Riter to Fennell on September 27 stated that the former had been apprised of the withdrawals. The vagueness of Hurley's reasons for circulating the petition and his assumption of the arduous duties and expenses which attended its circulation would, standing alone, be sufficient basis for an inference that he was not prompted by an inner conviction of the righteousness of his cause or by sheer philanthropic motives. The evidence shows that at the time lie assumed the task of defeating the Brotherhood's majority Hurley had been in the employ of the respondents for over 10 years and had on several occasions been relieved of the regular duties of driving a bus to be stationed at Dallas. In the, course of his work at Dallas he had at least once ordered a driver who had refused to go out on a schedule to turn in his badge and equipment. Before the driver was permitted by Jameson to return to work, he was required by Jameson to adjust the matter with Hurley. Many ,of the drivers regarded Hurley as a supervisor, although he was at times assigned to a regular schedule. It is consequently clear why the respondents would, and did in fact, select Hurley as their agent in carrying out the plans which Riter had already formulated for combatting the Brotherhood's claim of majority. The record also contains evidence of statements by Hurley to witnesses whose testi- mony we believe that he had promised Riter he would not join a union and that he would break up the Brotherhood. The respond- Qnts' sponsorship of Hurley's activities in this regard is further mani- fested by Jameson's testimony that part of the month of September, including the period of Hurleyy's absence from work at which time he was assigned to a regular driving schedule, is considered a busy season and drivers are needed at their work. Moreover, the respond- ents' pay-roll records show, according to the testimony of their office manager, that Hurley received his full salary, except for certain standard deductions, for the period from September 15 to October 1, 1937, although they reflect the fact that he drove only half his regu- lar schedule on September 22, that he did no driving on September 23 but "was working at various other things," and that from Sep- tember 24 through September 30 he drove no schedules, the records not indicating whether he performed any other duties or services during tin t week. No explanation was given at the hearing by Riter or any of the supervisory officials of the payment to Hurley of his regular salary for the days on which he performed no regular services for the respondents. We find that Hurley was paid by the respondents for the time he had devoted to the circulation of the petition. Although Hurley and the respondents denied having assumed the expenses incident to his travels in circulating the petition, we are s DIXIE MOTOR COACH CORPORATION 899 convinced and find from the evidence already discussed and from a conversation which Hurley had with Portwood that the respondents -paid Hurley for the expenses incurred as well as the time spent in connection with his activities in this regard. Portwood testified that shortly after the committee met with Riter, Hurley came into the coffee shop and displayed a wad of money which lie said Riter had given him and that at a later time on the same day Hurley visited her again and told her that Riter had called him into the office, had asked Hurley what was going to be done about the union activity, and that Hurley had replied, "if there is a man in the office that can break this up, I can." Hurley thereupon, according to Portwood's ,testimony, leaned over to the witness and said, "Aunt Jessie, if I don't have this busted to hell by this time tomorrow night, I will buy you the best hat in Dallas." Portwood testified further that 3 or 4 days later Hurley again came into the coffee shop and told her that all his expenses had been paid while he was away on his trip and that he had acquired two new tires for his automobile. Although Hurley denied having made these statements to Portwood, we find, in view of their plausibility under the circumstances, that they were in fact • made and were a true report of the arrangements between Hurley and Riter. ' We find that the respondents authorized and sponsored Hur- ley's acitvities in obtaining the employees' signatures to the petition and that all acts performed by him in that regard, are the acts of the respondents.° Almost concurrently with Hurley's efforts to secure signatures for the petition, Marion Wallace, an operator for Sunshine who had not signed an authorization or application for membership, assumed the task of distributing among the drivers for their signature typewritten letters informing Fennell that the signer wished to withdraw his application for membership in the Brotherhood. Drivers who signed these letters testified that they were moved to do so by the same con- siderations which led them to sign the petition. Although it is not clear from the record how 'many letters of this kind were sent to Fennell, it is indicated that all were sent by registered mail, the sender directing the postal authorities to deliver the return receipt to the signer at the latter's address. Witnesses who testified that they had signed such letters stated that they had not inserted them in envelopes, mailed them, or paid the cost of their mailing. Wallace 'identified some of the letters and envelopes shown to him at the hear- ing as those he had circulated and mailed and on which lie had paid the postage, amounting to 20 or 25 cents in each case. One of the O Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 4j9, 8 N. L It. B. 621, enf'd International Association of Machinists v. N. L R. B., 110 F. (2d) 29 (C. A. for D. C.), cert. granted , 60 S. Ct. 721, 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers testified that he had refused to sign a letter at the request of Wallace but that later, when he learned that most of the drivers at Dallas had signed the petition and that the Brotherhood had permit- ted that action, he went to J. C. Riter, in charge of the respondents' traffic department, and asked the latter for "one of those letters that they were signing and withdrawing from the Brotherhood." J. C. Riter replied that he had the letter in question and, taking one from his desk, handed it to the witness. The latter noticed on that desk letters which appeared to be similar to that which J. C. Riter handed him. J. C. -Riter commented to the witness at that time that the others had signed a petition, which was then out of town, and "some was signing those individual letters." The witness thereupon signed the letter in J. C. Riter's presence and returned it to him. Although he received a return receipt for that letter, the witness testified that he did not mail it. J. C. Riter did not testify, and we believe the testimony of the driver in question. Wallace testified that Jack Hart Warren, the bookkeeper, composed the letters and wrote them on the respondents' typewriter during gen- eral office hours, using the respondents' stationery, after he had ex- -plained to her that some of the drivers wanted to withdraw from the Brotherhood and asked her to prepare the necessary communications. She also addressed the envelopes in which the signed letters were en- closed, obtaining the return address of the signer f rom the respondents' records. Like Hurley, Wallace gave no clear explanation at the hear- ing of the reasons which prompted his action and denied that such action was inspired by the respondents. The respondents denied that they had directed or approved the efforts of Wallace. They offered proof to show that Jack Hart War- ren's assistance to Hurley and Wallace was unauthorized and that the nature of her employment with the respondents was such that, unlike' all other office workers, she was not required to observe regular work- ing hours and was free to come and go as her work permitted. The evidence shows, however, that she did in fact adhere to the general office routine with respect to hours of work. We do not consider the respondents' explanation of Jack Hart Warren's status satisfactory, and we find that she assisted Hurley and Wallace in,the course of her regular duties and pursuant to authorization of the respondents. Choice of Wallace by the respondents for the execution of a task sup- -plementary to that assigned to Hurley is indicated by the fact of Wallace's long employment with the respondent Sunshine and by his ,close association with Riter. Wallace testified, in the latter connection, that he visited Riter's farm "every chance I get" and more frequently than any of the other drivers; that he customarily stayed at the farm "all-the time I'm not working and I can get off"; and that he acted as Riter's personal chauffeur "when he will let me." In addition, Wallace DIXIE MOTOR COACH CORPORATION 901 had been opposed to the Brotherhood and had clearly indicated his attitude in that regard by refraining from signing an authorization or an application for membership. The respondents' pay-roll records show that Wallace was paid his regular salary for the period during which he distributed the withdrawal letters. We find that the re- spondents, by the participation of J. C. Riter, a management repre- sentative, and by the activities of Wallace, sponsored the distribution of the withdrawal letters 10 To assure themselves against opposition in their plant to defeat the Brotherhood's majority and to consolidate the results of that plan, the respondents determined that drivers who had prominently sup- ported the Brotherhood must be subjected to treatment which would' bring about a dinuznition of their influence among the employees with whom they came in daily contact and whose support they had solicited for the Brotherhood. Consequently, the four members of the com- mittee which had unsuccessfully attempted to gain recognition for -the Brotherhood on September 22 were singled out for treatment designed to achieve the respondents' determination. The committee consisted of F. C. Styles, A. J. Phillips, as spokesman, M. W. Warren, and W. M. Barney. The first victim of the respondents' plan to, banish the Brotherhood from the sphere of organizations available- to its employees was Styles. He had refused to sign the petition pre- sented to him by Hurley when the latter first circulated it in Dallas. On the evening of the clay on which the committee had met with Riter, Jameson asked Styles to see him early the following morning. Styles testified as follows concerning the events of the following morning : When he arrived at the respondents' premises, Jameson handed him a salary check and said "Styles, I don't know any man I hate to do this to more than you, but you know I work for this com- pany and I have to take orders like you do." In reply to Styles' ques- tion as to whether he had"been derelict in handling cash fares, Jameson stated that his record had always been perfect, that his cash and accident records were good, that he was a good driver and easy to get along with, and that if there were another bus company across the street there Would be no reason why Styles could not obtain employ- ment with that company. Then Jameson commented as follows : "For the last 30 days you haven't been worth a damn to yourself or the company. You got sucked into something you didn't know anything about; but it cost you your job." Styles retorted that he did know what it was about. As Styles was leaving, Jameson cautioned him to stay away from the respondents' premises thereafter in order to avoid "trouble." No other reason for the discharge was given to Styles by Jameson at that time. 10 See footnote 7, supra 233G3G-42-N of 2. 58 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jameson testified that, at the time he discharged Styles, he called :Styles' attention to reports on fast driving and "carelessness with the company's business," pointing specifically at that time to two in- stances during the 15 days preceding the discharge in which Styles had carried passengers beyond their destination and on which Styles himself had reported to Jameson . Although Jameson could not recall at the hearing that Styles had asked him whether the discharge had been occasioned by his cash -fare record , he denied having told Styles that his record in the cash business and as to accidents had been good and then stated, "I didn't say it that way." He admitted , however, that he might have made the remark assigned to him by Styles with refer- ence to his record in the cash business , since Styles', performance in that regard had been satisfactory. With respect to Styles ' testimony as to his accident record, Jameson did not think that either he or Styles had adverted to that subject during the course of the conversation. Although Jameson denied having made the statements as to Styles' not having been "worth a damn" during the last 30 days of his em- ployment and having paid the price of discharge for having got him- self into something of which he knew nothing , he testified that for a month or two prior to the termination of his employment, Styles had seemed to be troubled about something and could, therefore, not perform his work "just right." Jameson admitted that he had asked .Styles to stay away from the respondents' premises and that the request was made in accordance with. an established practice based ,upon his experience that when men who are discharged return to the scene of their former employment they tend to neglect their duty to seek other employment and make nuisances of themselves by loiter- ing around the respondents' premises. Jameson explained that his information as to Styles' fast driving had been obtained from Riter and that the latter's source was the respondents ' checkers. Asked by counsel for the Board whether he would'have given Styles a letter of recommendation upon request at the time of his discharge, Jame- son replied that he would have had a conversation with Styles before acceding to that request for the reason that "Mr. Styles made us an awfully good man but at the time he was discharged he wasn't as good a man as he had been in the past. " Later in the course of his testi- mony, Jameson stated that it was his policy , as superintendent of drivers entrusted with the responsibility of training and guiding his -subordinates , to discuss with the men the progress and quality of their work and to "give them every chance in the world " to correct their mistakes. Riter's explanation at the hearing for Styles' discharge was that he had been tampering with the governors on his buses, that he had DLXIE MOTOR COACH CORPORATION 903 had a bad accident record and "naturally was going wild," and that he had been guilty of insubordination. He admitted, however, to no independent recollection of when complaints had been received as to tampering with the governors and as to when the accidents, if any, had occurred but stated that he knew that Styles "was always doing something and then lying about it." With respect to the charge of tampering with the governors, the testimony of Jameson and Styles is that at the time of the discharge no mention was made of that point and that allusions were made to it for the first time several months after Styles had been discharged. Jameson's testi- mony is that the respondents did not at any time accuse Styles of this impropriety but merely suspected him of it. It is apparent from the disagreement between Jameson and Riter as to the reasons for Styles' discharge, from the generality of Jame- son's statement that Styles' performance as a driver had not been so good during the months of August and September, a period coinci- dental with that of the promotional efforts of the drivers, from the fact that Styles' employment was terminated on the day following the committee's interview with Riter, and from Jameson's instructions to .Styles to stay away from the respondents' premises, that the termina- tion of Styles' employment was occasioned only by his prominent championship of the right to self-organization and collective bargain- ing and was effected for the purpose of interfering with the exercise of that right by Styles and by his fellow drivers. About 3 months after his discharge, Styles was reinstated by the respondents to a run which some of the drivers, including Styles, considered the most difficult of all assignments. The second object of the respondents' determination to remove their drivers from the influence of Brotherhood protagonists was A. J. Phillips, spokesman for the committee. On September 23, after Phillips had completed his schedule and while he was preparing to start out on another, Jameson directed him to make out his report and to collect his check. According to Phillips' testimony, he asked Jameson the reason for this procedure and Jameson replied, "You got a lot of nerve asking that question after what you have done." When Phillips insisted that he was entitled to some explanation in view of his 12 years of service with the respondents, Jameson stated that he had no reason for handing him his check at that time but that Riter had said it was his physical examination and the condition of his head. As Phillips was preparing his report, Jameson commented to him as follows: "Son, I have done a lot of things in my life that hurt me, but this tops them all." Thereupon he asked Phillips to turn in his-tools and equipment and Phillips complied with the request 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and left. The check which Phillips had received was for an amount equal to what he would have been paid if he had worked until October 1. Thereafter and before the end of the month, Phillips talked with Biter on two occasions on the respondents' premises in an attempt to determine the reason underlying Jameson's treatment of him on September 23. Riter told him not to worry and to take a rest until the beginning of October. Plans were made during the interview with Riter for Phillips' return to work. Jameson and Riter testified that Phillips was not discharged but had been laid off because of his health. Jameson testified that Phil- lips had been assigned to a heavy and fast schedule at the time of his lay-off and was required to remain away from home every other night; that Riter had told Jameson on September 22 that Phillips' wife had complained to Riter about the onerousness of her husband's work and had asked for a change in his schedule because of his im- paired physical condition ; and that Riter had directed Jameson to pay Phillips for the entire second half of September, saying they would work out a solution for Phillips' difficulties. Jameson denied that he had told Phillips the latter "had a lot of nerve" asking the reason for his discharge "after what" Phillips "had done," but ad- mitted that he had said very little to Phillips about his physical condition at the time of the alleged lay-off, explaining at the hearing that Biter was better acquainted with the circumstances of the lay-off. He admitted that he had asked Phillips to turn in his tools and equipment and that he had not consulted Phillips with respect to the condition of his health and as to whether he wanted the enforced vacation. Riter testified that Phillips' wife had talked to him on several occa- sions about her husband's health and that shortly before the lay-off of Phillips he had visited Mrs. Phillips and had inferred from her conversation that she wanted him to change her husband's assignment and to allow him to take a rest. Biter accordingly decided to comply with the requests implied in Mrs. Phillips' conversation and directed Jameson to pay him for the remainder of the month and to permit him to take a vacation. He admitted, however, that he had not dis- cussed with Phillips the latter's physical condition before the decision to grant him a vacation; that no other driver had ever been laid off because of his health without prior consultation with the driver and merely upon a discussion with the employee's wife ; and that he had not sought the advice of Phillips or his wife or a doctor on the extent of rest necessary to cure Phillips of his difficulties. Phillips was returned to work on about October 1, when he was assigned to a lighter schedule, on which he remained for a few months DIXIE-MMOTOR COACH CORPORATION 905 and from which he was transferred, without inquiry as to his physical ability to endure more difficult work, to a heavier schedule. He was subsequently transferred to an assignment which necessitated the mov- ing of his household from Dallas to another city. We find that the respondents seized upon the complaints made by Mrs. Phillips as a basis for compelling Phillips to remain away from the drivers with whom he had come in- contact in the course of the performance of his duties for the respondents, thereby facilitating the successful outcome of the respondents' efforts to induce their drivers to withdraw from the Brotherhood. The respondents' purpose in discharging Styles and in granting Phillips an enforced vacation is further evident from their treatment of Warren and Barney, the other members of the committee. On Sep- tember 27 Warren and Barney were transferred from the schedules on which they had been for some time to other schedules. Warren testified that the change in his assignment' and his hours of work resulted in loss of contact with the 16 drivers he had met on his former schedule and among whom he had solicited authorizations and applications for membership in the Brotherhood and in an inability to engage in organizational work among the men at Dallas. Although Barney did not testify, it is also apparent that he was removed from contact with the drivers among whom he had exercised influence on behalf of the Brotherhood. Jameson testified that the transfer of Warren and Barney was in- Icidental to a general shift of schedules which had been effected for the purpose of adjusting the complaint of one of the three drivers involved, and that the change merely returned Warren and Barney to schedules they had had at an earlier date. The evidence shows, however, that neither Warren nor Barney had been consulted as to the change, that both had worked for some time, including the period of organizational activities, on the schedules from which they were transferred on Sep- tember 27, and that while Warren had earlier been assigned to the schedule to which he was returned on September 27, he had complained about it to his superior and had requested a change. We find that the transfer of Warren and Barney was effected for the purpose of diminishing their influence on behalf of the Brother- hood among the respondents' drivers. c. Further attempts to obtain recognition On September 26, 11 days after Riter had agreed to reply- within 10 days to the two questions contained in the letter which Fennell left with him on September 15, Fennell sent Riter a telegram stating that if no reply was received before 6 p. in. of that day to the request of the Brotherhood "to be recognized for collective bargaining" it 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be necessary to take legal • action. The following day Riter wrote to Fennell stating that it was the respondents' intention to obey strictly the requirements of the Act 'and that at ' any time it could be conveniently arranged "we shall be glad to consider the evidence oil your authority to ' bargain collectively with the Companies on behalf of our employees, however, we have been advised by the major- ity of our employees that they do not desire that you be authorized to act in their behalf." Fennell visited Riter in the latter's office on September 28, presented him with a copy of the "memorandum of agreement" which the committee had left with Riter 6 days earlier, and said that he would produce the authorizations then in his posses- sion if Riter signed the "memorandum of agreement" and agreed to recognize the Brotherhood provided it represented a majority of the drivers. Riter refused to sign anything, and Fennell left the office. Various attempts were thereafter made by the Brotherhood to seek recognition on the basis of the authorizations which had been obtained in September of 1937 but all proved fruitless. Thereafter on April 6, 1938, the Brotherhood filed with the Board its petition for investigation and certification of representatives. 4. Conclusions as to the refusal to bargain and other acts of interference On September 15 the Brotherhood, through Fennell, first enunci- ated to the respondents the fact of its majority representation. The respondents contend in their brief that Fennell was without authority to represent the Brotherhood in view of his testimony that his duties consisted in part of organizing drivers and of attempting to secure recognition but did not include the power to bargain collectively except in emergencies. Without answering the contention as to his authority to enter into negotiations looking toward the execution of a contract, it is clear that Fennell was authorized to represent the Brotherhood in demanding recognition. At that time the Brotherhood might validly have insisted upon recognition and upon the fixing of a date, within a reasonable time, for collective bargaining negotiations, as its claim of majority was not questioned and was in fact capable of substantiation 11 Instead, the Brotherhood chose to leave two questions with Riter for his answer within 10 days : Would he afford the Brotherhood an oppor- tunity to present the signed authorizations, which it had in its custody, 11 Matter of Remington Rand. Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N L R. B . 626, enf'd , N. L. R. B v. Rem- ington Rand, Inc, 94 F. ( 2d) 862 (C. C. A. 2), cert. denied , 58 S. Ct. 1046 ; Matter of Art Metal Construction Company and International Association of Machinists. Local 1.559,. Affiliated with District #65 of the I A M (A. F. of L ) 12 N. L. R. B. 1307, enf'd Art Metal Construction Co. v. N L . R B, 110 F. (2d) 148 ( C. C. A. 2). DIXIE MOTOR COACH CORPORATION 907 i n support of its declaration of majority representation ? Would he agree to recognize the Brotherhood as the collective bargaining agency for all motorbus drivers upon presentation' of adequate proof of majority? In view of the nature of subsequent events, it is not nec- essary at this point to consider the import of the second question and of the respondents ' duty with reference thereto. From the evidence of the proceedings of this first conference , it is sufficient to state, and' We find, that the Brotherhood 's conduct on September 15 reasonably and unequivocally constituted a request for recognition , to be complied with in 10 days, and that Riter so understood the significance of that conduct. That Riter did not honestly entertain any doubt as to the Brother- hood's majority claim, that he had no intention under any circum- stances of acceding to the outstanding request for recognition, and that he planned to destroy the Brotherhood's representation among his employees, are inferences of which his subsequent conduct is clearly susceptible. Had Riter seriously and in good faith enter= tained a doubt as to the majority and had he in fact been disposed to accede to the request for recognition if that doubt were resolved in favor of the Brotherhood, he would merely have afforded the Brotherhood a reasonable opportunity to convince him, within the appointed time, of the genuineness of its claim. The state of negotia- tions at that time required no more of him. Instead, however, almost immediately after Fennell had left with the expectation of recog- nition within 10 days, Riter initiated a campaign of persuasion, in- timidation, and coercion against the employees in the appropriate, unit for the purpose of compelling the revocation of their designation of representatives, theretofore freely executed by them. Thus he in- serted in a local newspaper an advertisement for 50 drivers, a number paralleling exactly the signed authorizations then in the possession of the Brotherhood.' Simultaneously with the appearance of the advertisement, he' toured the out-of-Dallas stations and questioned drivers on the state of their organizational endeavors, suggesting that they consider organizations other than the Brotherhood and notify Fennell of their withdrawal from the Brotherhood. In some of these, actions he was emulated by Jameson. Then, for the first time in 4 years, he granted a general wage increase to all his employees. The respondents' determination to disregard the Brotherhood's pending request for recognition and to alter the Brotherhood's repre- sentation status among their 'employees is further demonstrated by Riter's meeting with the committee on September 22 and the circum- stances under which that meeting was held. As we have found, Riter had designated two employees as general emissaries to communicate to the drivers his desire to meet with a committee of "old men" and had suggested the constituency of the committee to be named by the '908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'drivers for that purpose. Thinking that the meeting might be con- 'cerned with the Brotherhood's unfulfilled request for recognition or with its general status and believing that the matter of representation at the interview scheduled by Riter was wholly within the province of the employees rather than of their employer, the drivers elected a committee to represent them as adherents of the Brotherhood and to iterate, through presentation of the "memorandum of agreement," the demand for recognition previously made on September 15. It is argued by the respondents in their brief that the committee was not authorized to represent the Brotherhood under the terms of the signed authorizations and did not represent a majority of the em- ployees in the appropriate unit, as a minority of the drivers were present at the meeting which elected the committee. We find these contentions to be without merit. The committee acted with Fennell's approval. The tenor of Riter's reception of the committee and his reaction to their request, as well as his reading aloud from the maga- zine article, revealed a marked conflict of underlying purpose between both sides. Biter's intention was to disregard the request for recog- nition made on September 15 and to dissuade his employees from further association with the Brotherhood and from general organ- izational activities. The committee was bent only upon obtaining -recognition of the Brotherhood. Since Riter refused unconditionally to sign the "memorandum of agreement" and thereby to recognize and -consent to deal with the Brotherhood at a time when it represented a majority of the employees in the appropriate unit, he clearly failed to comply with the initial requirement of the duty to bargain col- lectively imposed upon the respondents by the Act. From September 22 to September 27, the day on which Miter wrote Fennell that it was the respondents' intention "to obey strictly the terms of the National Labor Relations Act"; that they would be "glad to consider the evidence on your authority to bargain collec- tively"; but that they had been advised "by the majority of our em- ployees they do not desire that you be authorized to act in their behalf," the respondents had actively devoted themselves to dissi- pating the Brotherhood's majority by sponsoring circulation of the petition and the withdrawal letters and by isolating the four com- mittee members. Relying on the successful outcome of their efforts in this regard and assured that the Brotherhood could not meet the challenge of its majority claim, the respondents assumed the disin- genuous position of protesting their willingness to comply with the Act and to recognize and deal with the Brotherhood if the latter could prove a majority at that time, a condition which the respond- ents had by their own acts intentionally rendered impossible of ful- DIXIE MOTOR COACH CORPORATION 909 ' fillment. This was the respondents' attitude on September 27 and . 28 and has continued to be its attitude up to the present time. We do not regard the withdrawals as evidence of an independent and considered revocation of the authorizations previously executed by the employees in the appropriate unit. Elicited from the em- ployees by acts of coercion and intimidatio4 at the time of their execution and immediately prior thereto, such withdrawals cannot be considered as affecting the majority status of the Brotherhood on any of the occasions with, which we are here concerned. Had the respondents agreed to recognize the Brotherhood and had they other- wise refrained from interfering with the right of their employees to' self-organization and to bargain collectively through representatives of their own choosing, the Brotherhood's majority, constituting the basis for the respondents' duty to bargain collectively, would not have been vitiated. The respondents cannot thus seek refuge in their own derelictions against the requirements of the Act 12 We find that between September 15 and September 22 and on Sep- tember 22, and September 27, September 28, and at all times there- after, the respondents refused to bargain collectively with the- Brotherhood as representative of their employees in the appropriate unit. We find also that, by inserting the advertisement for 50 drivers in the Dallas Journal, by the statements of Riter and Jameson to the drivers to consider organizations other than the Brotherhood and to. abandon the Brotherhood, by the granting of the general wage in- crease, by sponsorship of the withdrawal petition and the letters of withdrawal, and by the discharge of Styles, the enforced vacation granted to Phillips, and the transfer of Warren and Barney, the re- spondents have interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed in Section 7 of the- Act. 12 Matter of Bradford Dyeing Association (U. S A ) (a Corporation) and Textile Work- ers' Organi zing Committee of the C. I. 0 , 4 N L R B. 604, enf'd, N. L. R. B V Bradford Dyeing Ass'n. (U. S A ), 60 S Ct 918 , rev'g 106 F. (2d) 119 (C C A. 1) ; Matter of American Manufacturing Company; Company Union of the American Manufacturing Company, The Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Woikers' Organizing Committee of the a 1. 0, 5 N. L. R. B. 443 , enf'd American Manufacturing Company v N. L R. B., 106 F. (2d) 61 (C. C. A. 2), cert. granted and aff'd as modified , 60 S. Ct 612 ; Matter of Arthur L Colten, and A. J. Colman, Co-Partners , Doing Business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R B. 355, enf'd N. L._ R. B. v. Arthur J. Colton and Abe J Colman, Doing Business as Kiddie Kover Mfg Co, 105 F. (2d) 179 (C. C A 6) , Matter of Sunshine Mining Company and International- Union of Mine, Mill and Smelter 1Vorkers, 7 N L R B 1252, enf'd as mod N. L R B v. Sunshine Mining Company, a corporation, 110 F (2d) 780 (C C A 9) ; Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chemists and Technicians, Local 107, 12 N. L R B 1002 ; and Matter of Highland Park Manufacturing Co and Textile Workers Organizing Committee, 12 N. L R B 1238, enf'd , N T. R B v Highland Park Manufacturing Company, 110 F (2d) 632 (C C A 4) 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discharges The complaint as amended alleged that the respondents, or one of them, discharged J. B. McCullough, M. W. (Pete) Warren, and O. C. Richards because of their activities in behalf of the Brother- hood. Jim McCullough.13 McCullough was first employed by the re- spondent Sunshine on October 1, 1935, and worked continuously as a driver until the date of the termination of his employment on March 15, 1938. In September 1937 he had signed an authorization designating the Brotherhood as his bargaining agent and had ap- plied for membership in that organization. Between September 1937 and the date of his discharge he had talked with some of the drivers on behalf of the Brotherhood. At the instance of Hurley and Wallace, who had approached him while on duty, he had refused to sign the petition or a letter of withdrawal. According to his' testimony, he went to see Riter on September 22, 1937, upon the sug- gestion of Hurley that he talk with Riter about the matter after he had resisted Hurley's request to sign the petition. Riter expressed surprise at having observed McCullough's name "down with the bunch that joined the Brotherhood" but added that the men had a right to belong to the Brotherhood or any other union of their choice. McCullough replied that he had joined the Brotherhood "with good will" and that he was uncertain as to whether or not he had made a mistake and solicited Biter's opinion on the matter. Riter com- mented that it seemed to him "like it was the Railroad Companies that were trying to get their employees back to driving, and us be out." During the course of the conversation mention was made of the fact that some of the drivers were withdrawing from the Broth- erhood, and McCullough told Riter he would think the matter over and might follow their example. Although Riter denied having had any conversation with McCullough in which the subject of the Brotherhood or union activity was adverted to, we do not credit his denials and we believe the, testimony of McCullough. After he learned of the Brotherhood's sanction of the petition or letters, Mc- Cullough asked J. C. Riter whether he had in his possession "one of 'those letters that they were signing and withdrawing from the Brotherhood." When J. C. Biter replied in the affirmative and handed McCullough one of the letters, the latter signed it and left it with J. C. Riter. After Hurley returned to Dallas from his tour ,of outlying stations, McCullough also added his signature to the petition. 13 Referred to in the amended complaint as J. B. McCullough DIXIE MOTOR COACH CORPORATION 911 At the time of the termination of his employment and for some time prior thereto, McCullough had worked on a line which the re- spondents had leased from another company. For several months before the respondents dispensed with his services it was known that the line would be sold by its owner and that the respondents' lease would consequently be cancelled. While McCullough was still on that line, Jameson had offered to transfer him to another run but McCullough refused the offer on the ground that the road on which the other run was to be operated was in disrepair and would be ex- tremely difficult of passage. McCullough testified that his decision iii this regard had been influenced by Jameson's earlier assurance to him, repeated shortly before the sale of the line, that McCullough and another driver would, by reason of their seniority with the respondents, be retained in the service of the respondents after cancellation of the lease. On March 15, 1938, the line was sold. Jameson on that day in- formed McCullough that there was no work for him with the re- spondents and told him to see Bowen, the new owner, about employ- ment on that line. Jameson at that time gave McCullough a letter of recommendation, addressed "to whom it may concern," which introduced McCullough as "a nice, clean young man" with a "very good record" and which recommended him "to anyone in need of a bus driver." The letter stated further that McCullough's separation. from Sunshine's services "is due to the fact the line on which he was driving was sold and we had no place open for him." McCul- lough went to see Bowen and was told that the new owner of the line was discontinuing some of the schedules and consequently had no need for an additional driver. At the time of the sale of the line to Bowen, McCullough and four other drivers were operating schedules on that line. Of the five men, McCullough and one Crowell, both of whom had signed authoriza- tions and applications for membership in the Brotherhood, ranked highest in system-wide seniority with the respondents. Of the three junior drivers, two had not signed either authorizations or applica- tions and the evidence is not clear on this point as to the third. The following disposition was made of the five drivers on March 15, 1938:, McCullough and Crowell were released from the respondents' em- ploy. One of the junior men who had not signed an authorization or application was taken on by Bowen, the new owner, by previous arrangement with the respondents. The other junior men were transferred to another part of the respondents' system. McCullough reported the circumstances of his discharge to the Brotherhood and was thereafter advised by Fennell to seek reemploy- I 912 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD ment with the respondents. Some time during April or May of 1938 McCullough talked with Riter about the prospects of reemployment. According to McCullough's testimony, 'Riter told him at that time- that he had disabled himself from obtaining further employment with the respondents because of his disloyalty in complaining to the Board about his discharge. McCullough protested that he had made no reports to the Board but Riter insisted that he had learned through some source that McCullough had in fact done so. When McCullough asked Biter whether it would be advisable for him to return at some later date in search of reemployment, Biter answered in the negative and indicated that McCullough was permanently fore- closed from employment with the respondents. At the hearing, Riter denied that portion of McCullough's testimony dealing with the Brotherhood or unions or the Board. We do not credit these denials. M. L. McCullough, father of Jim McCullough, testified that he had been a close acquaintance of Riter's for about 25 years and that his relationship with Riter had led to the employment of his son by the respondents. About a week or 10 days after the termination of his son's employment, M. L. McCullough visited Riter in an effort to determine the cause of the discharge. Biter explained that his son's record had been very good; that the sole reason for his discharge had been the discontinuance of the line on which he had worked; .and that, as soon as the opportunity presented itself, he would be reemployed, provided that he did not initiate proceedings by the Board against the respondents. M. L. McCullough promised Biter that if his son were returned to employment with the respondents, the father would see that his son did not "mess with the union any more." Riter remarked that Brotherhood activity had not been a factor in the discharge. The father thereupon proceeded to defend his son by stating that he "was just an ignorant country kid" who knew nothing about unions and that "somebody talked him into join- ing." Riter agreed, and then commented regarding the son that "They made him believe he wouldn't have a job if he didn't join." Before the close of the conversation Riter stated that he would sell his, business as an alternative to letting the men control it. During the course of his testimony, Biter denied that he had adverted to the union in that conversation but stated that he had, in reply to an inquiry by the father as to whether the union had cost the son his job, said that the union had not been a factor in the discharge. He admitted, however, having promised the father that he would re- employ his son when a job was available. Jameson and Riter testified that McCullough's discharge was attrib- utable solely to the sale of the line on which he had worked and that McCullough had been told to apply for employment with the new DIXIE MOTOR COACH CORPORATION 913 owner of the line. Jameson admitted that special arrangements had been made in advance with Bowen for the employment of one of the five men affected by the sale of the line and that no' definite agreement had been made- as to McCullough, although the latter's seniority was greater. He admitted also that a new line had been installed by the re- spondents after McCullough's discharge, to which a comparatively new man had been transferred, and that three or four drivers had been em- ployed by the respondents at various times subsequent to McCullough's discharge. Riter declared the respondents' policy with respect to lay- offs to be that if two men were equally qualified and he were compelled to dispense with the services of one his choice would be governed by their relative length of employment with the respondents. He admit- ted that of the five men affected by the sale of the line McCullough was one of the oldest men in point of service with the respondents. There is, moreover, ample evidence to show that the respondents reemployed or offered an opportunity for reemployment to drivers who had been laid off or who had voluntarily terminated their serv- ices with the respondents. We conclude, in view of the disregard for McCullough's seniority at the time of his discharge and in view of the special arrangements which had been made for the employment by the new owner of a man who was junior to McCullough and who had not signed an authori- zation or application for membership in the Brotherhood, that Mc- Cullough's employment was terminated by the respondents and that he was foreclosed by them from obtaining work with the new owner of the line because of his activities in behalf of the Brother- hood. We conclude also that he was, for the same reason, denied reinstatement to one of- several positions which he was capable of filling. We find that by the discharge of McCullough and the subsequent failure to reinstate him the respondents have discriminated agauist him in regard to hire and tenure of employment, thereby discourag- ing membership in the Brotherhood and interfering with, restrain- ing, and coercing their employees in the exercise of the rights guaranteed to them in Section 7 of the Act. M. W. Warrren. Warren had been employed by one or both respondents for 8 years at the time of his discharge on August 31, 1938. He was admittedly a good driver, and the respondents re- garded' him as a conscientious and valuable employee. He was undoubtedly the prime. mover in the organizational drive among the respondents' employees and remained its staunchest protagonist until the date of his discharge. The respondents were well aware of the extent of his activities and of his influence among their employees. As already indicated, he, had served as a member of the committee 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which unsuccessfully requested recognition of the Brotherhood on September 22, 1937, and was therafter transferred to a schedule which hampered considerably his promotional efforts among the drivers. In conformity with the advice of the Brotherhood that two or three drivers refrain from signing the petition for withdrawal, he had withstood Hurley's request and had also refused to execute a letter of withdrawal. Warren resisted the respondents' efforts to banish the Brother- hood as a possible form of organization for their employees and actively attempted to revive the-interest of the drivers in anticipa- tion of action by the Board on the Brotherhood's petition of April 6, 1938, for an investigation and certification of representatives. By August of 1938 he openly resumed his activities in behalf of the Brotherhood and in collaboration with O. C. Richards, a fellow employee, attempted to enlist the aid of an organizer in reestab= lishing the Brotherhood among the drivers. At this time the re- spondents effected a general wage increase for all drivers and mechanics. On August 22, 1938, Hurley and WTorthington, a quasi-supervisory employee, urged Warren to abandon his efforts on behalf of the Brotherhood or to leave the employ of the respondents. Warren refused to agree to either alternative. Four days later, at a meet- ing of about 12 drivers held in the drivers' room under the leader- ship of Hurley, he was advised that Riter would not "work organized labor" and that the other drivers had decided to withdraw their sup- port from the Brotherhood and he was again asked to relinquish his interest in the Brotherhood or to resign his position with the respondents. Warren remained firm in his resistance to both re- quests and insisted that he would continue to assist the Brotherhood in its efforts to be represented among the drivers. There is evi- dence that at least one employee was permitted to take time off to attend this meeting. On August 28,' 1938, Warren sent a letter to Riter, copies of which were mimeographed and sent by Warren together with a Brotherhood leaflet to most of the respondents' drivers. The letter stated that Warren had for several months actively participated in organizational work and that his efforts in that regard had, in con- travention of the Act, been considerably opposed; that since his employment status was vitally affected the purpose of this communi- cation was to determine whether the respondents were aware of the acts of certain individuals and whether such acts bore management sponsorship or approval. The letter then apprised the respondents of the ultimatum presented to him by Hurley and Worthington, "who act in supervisory positions," and by the meeting of August DIXIE MOTOR COACH CORPORATION 915 26, at which statements had also been made that Riter would never recognize the Brotherhood and would sell his business as an alterna- tive to bargaining with the Brotherhood. After posing several questions directed at eliciting a statement from the respondents as to their intentions to comply with the requirements of the Act, War- ren asked directly as follows: "Has the management of Dixie Motor Coach' Corporation and or Sunshine Bus Lines, Incorporated, spon- sored or approved of the acts of any of its officers, agents, or employees in requesting that I withdraw my support from the Brotherhood of Railroad Trainmen or resign from the service?" The letter closed with a statement of assurance that "an early reply to the above questions will do much to clear the atmosphere as it is 'my intention to make your reply available to my fellow workers." Warren tes- tified that his purpose iii dispatching the communication to the respondents, in reply to which he had hoped to receive a denial of the accusations which it contained, was to remove the jeopardy in which his employment had been placed and to encourage the drivers to cooperate with his efforts to revive the Brotherhood. Warren received no reply to his letter of August 28 but 3 days thereafter he was notified by Jameson of his discharge and was handed a letter explaining the reasons for the termination of his employment. The letter had been dictated by the respondents' attorney and it informed Warren of the receipt by the respondents of a petition signed by a majority of the drivers stating that Warren had been annoying then while on duty concerning "some character of organization which you evidently are insisting on their joining." The letter stated further that the drivers must be protected in their right to remain free from harassment and that the respondents would not permit "any employee, knowingly, to intimidate or harass other employees in order to compel them to act contrary to their wishes." Since Warren's fellow employees had, it 'continued, notified the re- spondents that his activities had harassed them to the extent that their jobs and their passengers were endangered and since the re- spondents required their drivers, while oil duty, to give their complete attention to their work, and in view of the request of those employees for his discharge, "we regret," the letter concluded, "to' advise you that effective today your services will not be needed by these Companies." The petition to which reference was made in the respondents' letter to Warren was circulated among the. drivers by Hurley and two other employees between August 27 and August 30, 1938. At the time of its presentation to the respondents it bore the signatures of 53 drivers. Addressed to the respondents, it stated that the signers "in an' open meeting have decided individually and in a group that Mr. Pet€ 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warren is a troublemaker and is undesirable to work with and he is jeopardizing our jobs and that we do not want to work with him, and demand his dismissal in order to have harmony in our work. Mr. Warren having been present at this meeting was asked to resign from Union or from Company, he refused both." There is no direct evidence relating to the origin of the idea for the petition, or to its authorship, or to the circumstances of its circu- lation. Several drivers who were stationed at points outside Dallas testified that they had signed the petition at their stations upon the request of Hurley. The further testimony of one of these witnesses is that Hurley had told him at the time that he was making a tour ,of out-of-Dallas stations for the purpose of obtaining signatures. The respondents' records show that no deductions were made from Hurley's salary for the period during which he was engaged in solic- iting the drivers. One Romick, in practice at Dallas as an attorney, testified that during the month of August Hurley and Wallace had sought his advice concerning the general union situation, making it clear that they were opposed to any form of organization, and that on a later occasion they and several other drivers had inquired of him whether they would be privileged to demand the discharge of Warren because of the harassment, agitation, and general disturbance which he had caused. Romick testified further that he advised his inquirers in the affirmative and commented to them that Warren had exceeded his rights under the Act. Subsequently, his testimony con- tinued, some of the drivers brought the executed petition to him and he thereupon dictated a covering letter to the respondent Dixie, designating Hurley and two other employees as the signers of that letter. The letter as dictated by Romick and signed by the three employees whom he had selected stated that Warren had been "agi- tating" the respondents' employees for more than a year against their wishes about the union; that, despite their express displeasure and their warnings, Warren had persisted in his conduct, approaching the drivers while on duty and visiting them at their homes, thereby interfering with their rest and their peace of mind; that the conduct complained of had so troubled the minds of the drivers as to en- danger their jobs and their passengers, if Warren continued in the respondents' employ; that Warren was motivated by selfish interests in his promotional efforts; that he was a "troublemaker" and had made himself intolerable among the rest of the employees, who felt that, in view of his refusal to resign his position with Dixie or to ,cease harassing the drivers and their families, "we owed it to our- selves, our families, and our passengers, whose safety lies in our hands, to request that Warren be discharged, and that he be ordered to stop harassing us operators, and our families." Aside from DIXIE MOTOR COACH CORPORATION ,917 Romick's general statement that he was personally acquainted with Hurley through having eaten at a cafe with him and other drivers of the respondents about 4 years before Hurley's first visit to him in August 1938, there is no evidence as to the circumstances leading to the selection of Romick by Hurley. Many drivers called by the Board and the respondents testified that although they signed the petition Warren had not annoyed them. or disturbed their peace of mind or interfered with their rest or recreation , some stating that he had never talked to them about organizational affiliation generally, or about the Brotherhood specifi- cally. Several of the witnesses for the respondents stated, however, that while Warren had not personally approached them or talked with them about the Brotherhood they felt that the Brotherhood had caused considerable strife and discontent among the drivers and that Warren, representing the moving spirit - in the organiza- tional work, became associated in their minds with that strife and discontent . One of these witnesses intimated that he feared the loss of his employment with the respondents if the union activity continued. Jameson testified that after the petition and its accompanying letter had been handed to him on August 30 he turned it over to Riter, who decided that there was , under the circumstances, but one course open to the respondents-the discharge of Warren. He stated at the hearing that the petition was the first indication he had of Warren's mistreatment of the drivers ; that he had received no previous complaints against Warren ; and that he personally found Warren amiable and easy to get along with . Riter testified that when Jameson turned the petition and the accompanying let- ter over to him he said , "Joe, it looks pretty bad. Joe, it looks like we have no alternative . If my own brother was causing a lot of trouble amongst this organization , or anybody else, what it looks like this thing bears out , we would have to let him go." He there- upon was compelled to pursue the course of conduct which the petition made inevitable. On the basis of the evidence on this part of the case and in vied of the respondents' earlier plan to outlaw the Brotherhood , as here- inbefore discussed , and particularly in view of the tone of Warren's letter of discharge, we cannot accept Riter's protestations of in- nocence, disinterestedness , and aloofness. It is clear that the cir- cumstances leading to Warren's discharge derived their inspiration and authorization from the respondents , whose determination to maintain the moribund state of the Brotherhood was as strong at this time as their earlier efforts to compel their employees to renounce their allegiance to that organization'. In view of the close relation- 283036-42-vol 25-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship between Riter and Hurley and of the latter's aid to and services on behalf of the respondents in circulating the withdrawal petition in September 1937, we find that the respondents had again selected Hurley to instigate the discharge of Warren and that all acts under- taken by him in the course of that assignment were authorized by the respondents. We find that by discharging Warren the respondents have dis- criminated against him in regard to hire and tenure of employment, thereby discouraging membership 'in the Brotherhood, and interfer- ing with, restraining, and coercing, their' employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 0. C. Richar&. Richards had been employed by one or both respondents for somewhat over 7 years at the time of his discharge by the respondent Dixie on August 31, 1938. In 1936 and 1937 he was the recipient of a safety award presented annually by the respondents to drivers who had encountered no accidents during the course of the year. He had actively participated in the movement to organize the respondents' drivers in August and September 1937 and had exe- cuted an authorization and application for membership. He had at first refused Hurley's request to sign the petition but later acceded to it when the Brotherhood promulgated its instructions. His enthusi- asm for the Brotherhood persisted after the respondents' acts of Sep- tember 1937, and in August 1938; he joined Warren in an attempt to reawaken interest among the drivers in the Brotherhood. On Au- gust 25, 1938, he visited the Brotherhood's field supervisor in his personal car and on his own time for the purpose of expediting action by the Brotherhood in behalf of certain employees whose rights he believed the respondents had invaded. That evening Hurley and Worthington, a quasi-supervisory employee, talked with him about the Brotherhood. Hurley asked him what he knew -about the Brother- hood and added that there had been rumors of a movement to revive it. Richards denied knowledge of such rumors. Worthington there- upon inquired whether he was still in favor of the Brotherhood and Richards replied emphatically in the affirmative. On the evening of August 31, 1938, the same day on which Warren had been discharged, Jameson handed Richards a letter which read in part as follows : "From time to time during the past two years officials of this Company have advised you to refrain from the use of intoxicating liquor and of the ultimate result of continued use. We regret to inform you that due to a finding on the part of this Com- pany that you have continued to use intoxicating liquor and have recently been seen while under the influence of same it is necessary for us to dispense of your services effective today." Like the communi- cation which announced Warren's discharge, this letter too had been DIXIE MOTOR COACH CORPORATION 919 prepared by, and upon advice of, the respondents' attorney. Richards was thereafter replaced by a driver who had refused to sign an authorization or application for membership. Jameson testified that the decision to discharge Richards was made under the following circumstances : On August 30 Riter asked Jameson if he knew that Richards had been drinking at Durant, Oklahoma. When Jameson replied that he had received no reports to that effect, Riter said, "Well he has been staying drunk quite a bit, I understand, up there. I have reports that he has been doing quite a bit of drinking up there." Riter then reminded Jameson that Richards had been assigned to his last- schedule, several years earlier with the understanding that if he did any drinking on or around the job he would be discharged automatically. He thereupon directed Jameson to discharge Richards, and the following night Richards received the letter of discharge. Riter testified that approximately 3 years before the discharge he had talked with Richards concerning his drinking and had warned him then that if he did not stop drinking he would be discharged. He thought also that he had talked with Richards once or twice after 1935 about rumors concerning his drinking but that he could never "pin anything directly on him." With regard to the immediate cause of the discharge, Riter testified that he had acted on reports, whose source he did not reveal, that Richards had been drunk on the last two days of his employment. With respect to the charge that he had been drinking Richards testi- fied that he had taken several drinks in 1933 as a specific for easing dental troubles from which he was then suffering; that for several weeks during the fall of 1934, while he was assigned to a run at Hot Springs,' Arkansas, he did do some drinking and confessed this to Riter early in 1935. His confession and an accident in which he was involved resulted in a two-day lay-off as a penalty. Thereafter on June 1, 1935, he was assigned to the run which he operated con- tinuously until the date of his discharge, during which period, he 'testified, he had abstained almost entirely from drinking. In support of this statement he pointed to the medal he had received for his per- fect record in regard to accidents for the years 1936 and 1937. Since his lay-off in 1935, he testified further, no supervisory or management offi- cial had alluded to drinking on his part or had warned or questioned him about it. On August 25, 1938, in the course of a triple had made in his personal car and on his own time to the Brotherhood's field supervisor, he admitted, he had taken two swallows from a bottle of liquor purchased by a friend who accompanied him on the trip, which preceded his discharge by 6 days. He denied having'been drunk, as Biter had stated at the hearing, during the last 2 days of his employment. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondents called several witnesses who testified that they had seen Richards at various times under the influence, in varied degrees, of intoxicating liquor. The experience of two of these wit- nesses was limited to the period of Richards' drinking "spell" at Hot Springs, and to dates prior thereto. An independent service- station operator who sold fuel to the respondents testified that he had seen Richards at Texarkana in about January of 1938, while Richards was not on duty, when he did not appear to be drunk but gave the impression, because of his conduct, of having been drinking quite a bit. There is testimony of three witnesses that each had seen Richards on the day of his visit to the Brotherhood's field super- visor at two of the respondents' stations at different hours of the day when his appearance and conduct indicated quite unmistakably that he had been drinking. Two of these witnesses, each of whom allegedly saw him at different times, testified that he displayed to their view a bottle of whiskey which was about half empty, although the impression given by their testimony is that he grew progressively more uncontrolled in his conduct. The language used by all three witnesses in setting forth the details of Richards' conduct which served as the basis for their inference as to his intoxicated condition was virtually identical. With respect to Richards' alleged conduct on the last 2 days of his employment, one of the respondents' drivers testified that he took 4 days' leave without pay to visit some acquaint- ances in Durant and that he rode as a passenger on the bus driven by Richards from Dallas to Durant on the evening of August 30. , The following day, while Richards was admittedly not on duty, he in- vited the witness and a third person to his home where he openly displayed a half-empty bottle of whiskey which he offered to, his guests and from which he then "drank her down like it was water." Thereafter Richards appeared at the Durant station, behaving in a manner which led the witness to believe that he had passed from his former sobriety to a state of intoxication. Although the witness had stated on direct examination that he had repulsed Richards' four or five requests to take a drink from the bottle, he varied his testimony on cross-examination by stating, in response to a question of counsel for the Board as to the basis for his knowledge that the bottle contained whiskey, "because I tasted of, it." The witness had also on direct examination characterized his own habits by stating "I don't drink"; on cross-examination, however, he indicated that he had had some experience in tasting liquor by saying of the con- tents of Richards' bottle, "It had that same old taste of any I tasted before." Further cross-examination also shook his former certainty as to just how much liquor Richards had drunk on that occasion. By the time Richards was ready to drive his bus back to Dallas, the witness testified further, his intoxication had worn off but he acted -DIXIE MOTOR COACH CORPORATION 921 "like he needed some sleep or rest or something , you know." The witness drove back to Durant with Richards and was the only other person present in the drivers' room that night when Jameson dis- charged Richards . It is not clear that the witness visited the acquaint- ances who were allegedly the reason for his trip to Durant. We find the testimony of this witness to be unreliable in view of the patent contradictions in his story. All the witnesses who testified to Richards ' drinking during 1938 stated at the hearing that they had not reported that fact to any management or supervisory officials before the date of Richards' dis- charge. Jameson testified that he would not discharge a driver for taking a drink while off duty , if that driver had sufficient time to re- cover his sobriety completely by the time he returned to duty. His testimony with respect to the respondents' policy is borne out by his further statements, that he knew of at least four drivers who had been drinking during the period when Richards was allegedly behaving similarly and who were not discharged . Of these four drivers, three had not signed authorizations or applications for membership in the Brotherhood and none of them had engaged in any activity on behalf of the Brotherhood in August 1938. One driver, he testified further, had been laid off for several days after Jameson had confronted him with proof of drinking while on duty and after the driver had ad- mitted the truth of the accusation. It is clear that, even if the respondents' witnesses are to be believed, Richards did not drink while on duty and the respondents did not learn of his alleged drinking prior to his discharge from sources which they were willing or able to reveal at the hearing : Moreover, Richards was not given an opportunity to answer the respondents' accusations before he was discharged, a procedure distinctly contrary to that fol- lowed in similar cases. Even if we were to believe that Riter had warned Richards several years before his discharge that further in- dulgence in alcohol would automatically result in the termination of his employment, we are convinced that the respondents , at the time of Richards' discharge , had no reliable reports that he had in fact been drinking. We conclude that Richards , like Warren, was discharged solely because of his vigorous attempts to revive the Brotherhood and thereby to oppose the respondents' efforts to outlaw the Brotherhood from the sphere of organizations acceptable to the respondents. We find that the respondents have, by the discharge of Richards, discriminated against him in regard to hire and tenure of employment, thereby discouraging membership in the Brotherhood and interfering with, restraining, and coercing their employees in the exercise of the, rights guaranteed to them in Section 7 of the Act. 922 , DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD C. Discrimination for giving testimony at the earlier' hearing The supplemental complaint alleged in substance that the respond- ents, or one of them, discriminated against W. T. (Bud) Wilkinson in regard to hire and tenure of employment and other conditions of employment by reason of his activities on behalf of the Brotherhood and because-he had given testimony at the earlier hearing on the original complaint. Wilkinson was first employed by the respondent Dixie in Decem- ber 1934 as a taxicab driver. About 18 months later he became a bus driver and continued in that capacity until the termination of his employment on January 16, • 1939. During the course of the earlier hearing he had been called as a witness for the Board and gave testi- mony as to the following matters at that time : He had signed an authorization and an application for membership in the Brotherhood. The advertisement for 50 drivers led him to believe that he would be replaced by a new man. , He,had signed the withdrawal petition at the request of Hurley because he was unwilling to jeopardize his em- ployment and because of the Brotherhood's sanction in that regard. He refused to sign the petition for the discharge of Warren because, as he told Hurley, Warren had not annoyed or harassed him. He also refused to sign the various petitions for intervention in the two pro- ceedings, informing his solicitors at that time that he saw no need for being represented by counsel. In November 1938 Wilkinson was one of four regular drivers as- signed to the Denton division, where there was also an extra driver. On November 18, 1938, the Texas Railroad Commission approved Dixie's application for a consolidation of schedules on the Denton division and the new schedules thereupon went into effect with the following concomitant changes : The extra driver was dismissed and Wilkinson was demoted from the position of regular, driver to that of extra driver. The other three drivers were assigned to the three con- solidated schedules. On January 16, 1939, Wilkinson was called to Dallas and was informed by the respondents' superintendent of main- tenance and drivers that the position of extra driver for Denton was being abolished, that extra schedules out of Denton would be handled by drivers assigned to the "extra board" 14 at Dallas and that conse- quently there was no position available for Wilkinson with the re- spondents. Although the superintendent of maintenance and drivers assured Wilkinson that he was not being discharged but was merely being laid off, he did inform Wilkinson that it would be useless for him to return in the future in search of reemployment. There is no evidence that the respondents thereafter stationed an extra driver at M The "extra board" consists of extra drivers, employees not operating regular schedules but available for relief and similar duties. DIXIE MOTOR COACH CORPORATION 923 Denton. Wilkinson contended at the hearing that in view of the fact that his system-wide seniority with . the respondents was greater at that time than that of other drivers he should , if, the respondents had dealt fairly with him, have '.been transferred to another division as a regular driver or to the Dallas extr' a board instead of being discharged. Shortly before the suppleniental hearing, Wilkinson was offered a, position by letter on the , Dallas "extra board" with the statement that "at this time we are unable to give you any definite commitment concerning the amount of employment that will be available to you as an extra board driver." Wilkinson refused the offer by 'letter of October 8, 1939, explaining that he wanted a regular assignment or the position of extra driver out'of Denton and that he considered himself entitled to back pay for the period following his discharge . He stated that he would consider accepting another type of offer. Ellis, the respondents' superintendent of maintenance and drivers, testified that Wilkinson had at first been selected as extra driver for the Denton division because,-at ^the time of the consolidation of sched- ules which resulted in a need for only three regular drivers, he had least divisional seniority among the four regular drivers .' His final lay-off was occasioned only by the fact ,that the respondents consid- ered it more economical to supply drivers from the Dallas extra board for relief work and extra driving out of Denton. He stated, without contradiction , that at the time of the alleged lay-off the extra board at Dallas was manned to capacity . Ellis admitted, however, that he knew of no other instance in, which the respondents had been gov- erned by a driver's divisional rather than system-wide seniority in demoting that driver from the position of regular driver to that of extra driver or in making lay-offs. He admitted also that the re- spondents had, since Wilkinson's alleged lay-off, employed two hew drivers for assignment at. first to the Dallas extra board and there- after to regular schedules. -There is also evidence which shows that the respondents had customarily transferred drivers from one division or schedule to another. Of the three regular drivers who were retained as such on the Denton division, two had not ate any time signed authorizations or applica- tions for membership in the Brotherhood. The third had signed both types of documents and also the petition for withdrawal but had re- fused to execute any petitions for intervention. He had also testified as a witness for the Board at the earlier hearing. We find, on the basis of -the evidence, that the respondents, in the case of Wilkinson, deviated from their usual seniority policy govern- ing demotions to the position of extra driver and applicable to lay- offs, for the reason that .Wilkinson had engaged in activity on behalf of the Brotherhood and- 'had given testimony at the earlier hearing. The fact that another driver who had also been active on behalf of 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Brotherhood and'had given testimony at the earlier hearing was retained as a regular driver does not affect the validity of our finding since it was necessary at that time to dispense with the services of only one driver and the respondents, in making their choice, attempted' to give it the appearance of objectivity by enforcing for the first time a seniority policy which affected one of the two Brotherhood adherents who testified at the earlier hearing. We conclude further that the respondents did not, on January 16, 1939, terminate Wilkinson's em- ployment with the intention of recalling him but that rather, in view of the subsequent hiring of two new drivers, they intended to and did in fact discharge him. We find that the respondents have, by the demotion and subsequent discharge of Wilkinson, discriminated against him in regard to hire and tenure of employment and other conditions of employment be- cause of his activities in behalf of • the Brotherhood and because he had given testimony at the earlier hearing, thereby discouraging membership in the Brotherhood and interfering -with, restraining, and coercing their employees in the exercise of- the rights, guaranteed to, them in Section 7 of -the Act: IV. TAE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth, in Section III , above, occurring in connection with the operations of the, respondents de- scribed, in Section I above, have a close;, intimate, and substantial relation to trade,• traffic, and commerce among the several. States, and tend to. lead to labor disputes burdening' and obstructing commerce and the free- flow of commerce. V. THE, REMEDY Having found that the respondents' have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that on September 15, 1937, and at all times there- after the respondents refused to bargain collectively with the Brother- hood for their employees in the unit hereinbefore designated as appro- priate. We have also considered the withdrawals as inoperative in determining whether, at the times indicated in' the complaint, the Brotherhood represented a majority of the employees in the appro- priate unit. Our reason is the patent exercise of coercion by the respondents in the execution of those withdrawals. The respondents contend, in their brief, pointing to the motions to intervene in the proceeding on the petition and on the complaint and to the testimony of a number of drivers that they did not at the time they signed the withdrawals' and at the time of the hearing want the Brotherhood DIXIE MOTOR COACH CORPORATION 925 to represent them, that there is sufficient indication in the record of the Brotherhood's loss of majority at the time of the withdrawals and as of the date of the hearing. As already indicated, we do not regard the withdrawals as material. With respect to the petitions for inter- vention, which recite that the signers do not want to be represented by the Brotherhood, the record shows that the petitions were executed with the tacit approval of the respondents.15 We do not, therefore, consider that the drivers have exercised a free and unhampered choice in changing their designation of representatives.1' Furthermore, to regard the petitions for. intervention as a true indication of the extent of the Brotherhood's representation would be to reward the respond- ents for the unfair labor practices which directly brought about the diminution of the Brotherhood's majority at the time of the hearing.11 In view of all these considerations and of our finding that the re- spondents have refused to bargain collectively with the, Brotherhood, we do not deem it material, in determining the affirmative action which the respondents must undertake in order to remedy the unfair labor practices, that the Brotherhood's majority has apparently been dissi- pated. Nor, if we were to consider that factor material, can we over- look the circumstances under which the dissipation was effected. We shall, therefore, order the respondents to bargain collectively with the Brotherhood upon request as the representative of the employees in the appropriate unit. Since we have found that the respondents have discriminated against four drivers in regard to their hire and tenure of employ- ment, we shall order their reinstatement to their former or substan tially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall also order the respondents to make the said persons whole for any loss of pay they,have suffered by reason. of the discrimination against them, by payment to each of them of a sum of money equal.to the amount he would normally have. earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings during said period 18 We do not consider that :Wilkinson's refusal, under the circum- stances, to accept the respondents' offer of employment on the Dallas 15 In view of the nature of our findings herein, we do not deem it necessary to discuss the evidence in this connection. 16 Cf. Matter of Williams Manufacturing Company, Portsmouth , Ohio, and United Shoe Workers of America, Portsmouth, Ohio, 6 N. L R. B. 135. 17 See footnote 12, supra 16 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee1in connection with obtaining work and working else- where than for the respondents , which would not have been Incurred but for his unlawful discharge and the consequent necessity of his'seeking employment elsewhere . See Matter of Crossett Lumber- Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill ` Workers Union, Local 2590, 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 the' employee, and the amount thereof shall be paid over tq 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "extra board," made shortly before the supplemental hearing, has affected his right to reinstatement or to reimbursement for the entire period of his unemployment.19 Our order of reinstatement and reim- bursement will run against both respondents, although the employees involved were carried on the pay roll of either Dixie or Sunshine, and compliance by either of the respondents will be deemed as com- pliance by both with this section of our order. Tim PETITION In view of the findings in Section III above as to the appropriate unit and the designation of the Brotherhood by a majority of the respondents' bus drivers as their representative, it is not necessary to consider the petition of the Brotherhood for an investigation and certification of representatives. Consequently, the petition will be dismissed. •Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Brotherhood of Railroad Trainmen is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All motorbus drivers of Dixie and Sunshine, including extra drivers and excluding supervisors, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. By refusing and continuing to refuse to bargain collectively with the Brotherhood as the exclusive representative of the employees in the' above-stated unit on September 15, 1937, and at all times there- after, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of Jim McCullough, W. M. (Pete) Warren, O. C. Richards, and W. T. (Bud) Wilkinson, thereby discouraging membership in a labor organization, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By discriminating against W. T. (Bud) Wilkinson in regard to hire and tenure of employment because he had given testimony under the appropriate fiscal agency of the Federal , State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects . See Matter of Republic Steel Corp. and Steel Workers' Organi-ng Committee, 9 N. L. R. B 219, enf'd, Republic Steel Corp . v. N. L. R. B, 107 F. (2d) 472 (C. C. A. 3), cert. denied, 60 S Ct. 806, order denying cert. vacated and rehearing and cert. granted , 60 S. Ct. 1072. 10See Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. R. B. 789; Matter of Stehli cE Co, Inc. and Textile Workers Union of Lancaster, Pennsylvania, and Vicinity, Local No. 133, 11 N. L. R. B. 1397. DIXIE MOTOR COACH CORPORATION 927 the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 6. By sponsoring the withdrawal of their employees from the Brotherhood and by otherwise interfering with, restraining, and co- ercing their employees in the exercise of the rights guaranteed in Sec- tion 7. of _the Act,-the respondents have engaged in and are engaging in unfair' labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondents have, not discriminated against one Burke by requiring as a condition of employment that he refrain from associating himself with any labor organization or from engaging in activities for the purposes of collective bargaining, within the meaning of Section 8 (1) 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 respond- ents, Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc., Dallas, Texas, and the officers, agents, successors, and assigns of each shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Brotherhood of Railroad Trainmen as the exclusive representative of all their motorbus driv- ers, including extra drivers and excluding supervisors; . (b) Discouraging membership in Brotherhood of Railroad Train- men or in any other labor organization of their employees by discharg- ing or refusing to reinstate any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (c) Discharging or otherwise discriminating against any of their employees because he has given testimony under the Act; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, 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) Upon request, bargain collectively with Brotherhood of Rail- road Trainmen as the exclusive representative of all their motorbus A rivers, including extra drivers and excluding supervisors ; 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer to Jim McCullough, W. M. (Pete) Warren, O. C. Richards, and W. T. (Bud) Wilkinson immediate and full reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority or other rights or privileges ; (c) Make whole Jim McCullough, W. M. (Pete) Warren, O. C. Richards, and W. T. (Bud) Wilkinson for any loss of pay they have suffered by reason of the respondents' discrimination against them in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during such period, deducting, however, from the amount otherwise due each cf these employees, monies received by him during the period between the date of his discharge and the date on which he is offered reinstate- ment for work performed upon Federal, State, county, municipal, or other work-relief projects, and paying the amount thus deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government,or governments which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places, on the respondents' premises, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees, stating: (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) ,of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs, 2 (a), (b), and (c) of this Order; and (3) that the respondents' employees are free to become or remain members of Brotherhood of Railroad Trainmen and the respondents will not dis- criminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director.for the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith. IT IS FURTHER ORDERED that . the supplemental complaint be, and it hereby is, dismissed in so far as it alleges that the respondents have engaged in an unfair labor practice, within the meaning of Section 8 (1) of the Act, with respect to one Burke. AND IT IS FIIRTHER ORDERED that the petition for investigation and certification of representatives filed by Brotherhood of Railroad Train- men be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in' the consideration of the above Decision and Order.