Pacific Greyhound Lines

In the Matter Of PACIFIC GREYHOUND LINES and BROTHERHOOD OF RAILROAD TRAINMEN Case No. C-1338.-Decided March 29, 1940 Motor Bus Industry-Collective Bargaining; Interfei ence, Restraint, and Coercion: refusal of employer to recognize, meet, or negotiate in any respect whatsoever with certified representative ; outstanding collective agreement made prior to representation proceeding and providing for exclusive recognition of union other than one certified in proceeding and for a closed shop, no justification for employer refusing to bargain collectively with certified representative; continuance of closed-shop contract made with union other than certified representative, a proper subject of collective bargaining with certified representative-Closed-Shop and Exclusive Recognition Contract: Effect of Change of Ajjiliation of Majority in Unit Covered, by. Expressed in Election and Certification: MADDEN : where, in proceedings under Section 9 (c), a collective agreement providing for exclusive bargaining rights, a closed shop, and working conditions, is held to constitute no ground for staying an investigation and certification of representatives because of the doubtful status of the contracting union as a freely chosen representative when the contract was made and because of the possibility of unilateral termination of the con- tract, such contract is defeasible, subject to the outcome of the investigation, and if in the election therein directed a union other than the contracting union is chosen and certified as the statutory representative, the entire contract becomes inoperative as a matter of law ; where in such proceedings a repre- sentative is certified for employees in a unit smaller than one covered by the closed-shop contract, contract becomes inoperative at least in so far as it relates to employees in unit covered by certification ; SMITH : certification of a statu- tory representative other than the union which has made an exclusive recogni- tion, closed-shop contract, results in termination by operation of law of the contract or its terms where such conflict with action by certified representative as representative, and not in termination of all substantive terms of the con- tract otherwise valid; closed-shop provision of contract abates since construed as not intended to benefit a successor organization ; provision of closed-shop collective contract permitting unilateral termination of contract upon notice by employer and contracting union, if interpreted to prevent termination by employees through a newly selected and certified representative other than contracting union, invalid as in derogation of rights of employees under Section 9 (a)-Collective Bargaining: Continuing Authority of Certified Representative .after Majority Designation of Another Representative: certified representative continues to represent exclusively employees in appropriate bargaining unit, irrespective of designation by majority in unit of another representative, so long as certified representative is willing to act and establish contractual relations with employer and a reasonable period for it to do so has not elapsed ; 3 months intervening between certification and issuance of complaint insufficient to show that reasonable period has elapsed ; designation by majority of new representative after refusal of employer to bargain with certified representative held not to establish incapacity of certified representative to act, and its au- 22 N. L. R B., No. 12. 111 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thority continues until employees in unit have had a reasonable opportunity to be represented by it-Procedure : Legal Effect of Determinations, Findings, Conclusions, and Certification of Representation Proceeding Upon Issues in Complaint Proceeding , Involving Section 8 ( 5) : determinations, findings, con- clusions, and certification in representation proceeding not res judicata of same issues in subsequent complaint proceeding between same parties involving violation of Section 8 (5) ; parties in interest to representation proceeding cannot in any subsequent complaint proceeding try and have heard de novo by Trial Examiner and Board questions or matters adjudicated in representa- tion proceeding in absence of cogent showing of possible error by the Board in its previous adjudication upon the record there made ; showing of parties herein held not to warrant reexamination of decision in prior related repre- sentation proceeding , and Board and Trial Examiner properly treat as admin- istratively decided questions or matters in representation proceeding adjudicated by determinations , findings, conclusions , and certification ; presumptive effect not withheld , in subsequent complaint proceeding involving Section 8 ( 5), from determinations, findings, conclusions , and certification of prior related repre- sentation proceeding, despite offer of additional evidence upon previously adjudicated issues, since evidence could have been presented in representation proceeding and no apparent reasonable cause is shown why it was not; rulings of Trial Examiner striking allegations of answer and rejecting evidence chal- lenging validity of determinations , findings, conclusions, and certification of prior related representation proceeding, sustained-Procedure : Record on'Re- view under Section 9 (d): where decision in complaint proceeding involving violation of Section $ ( 5) rests in part upon determinations , findings, con- clusions, and certification in prior related representation proceeding the repre- sentation proceeding record becomes on review part of the record of the com- plaint proceeding ; where decision in representation proceeding incorporates findings of Board in prior representation proceeding , parties to review in-court of Board's order in subsequent complaint proceeding based in part thereon may have certified and filed in court transcript of record in first representation proceeding to the extent relevant-Evidence : Admissibility in Complaint Pro- ceeding Involving Section 8 •( 5) of Record of Previous Related Representation Proceeding : evidence previously introduced in related representation case and record of said case not admissible in complaint proceeding involving Section 8 (5) where purpose is to obtain reexamination of determinations, findings, conclusions, and certification of representation case, in absence of cogent show- ing of possible error by Board in representation case upon record there made; additional evidence which could have been presented in previous related repre- sentation proceeding " but which was not there presented, for no apparent reasonable cause, not admissible in related complaint proceeding on issues previously adjudicated-Section 9 (b) and (c ): Validity : Section 9 (b) and (c) do not involve improper delegations of legislative power to administrative agency; doctrine of Globe case does not involve improper delegation by Board to employees of its statutory authority-Investigation of Representatives: Unit Appropriate for Collective Bargaining : Prior Determination of Unit: prior determination of appropriate unit, not res judicata; mere interest of employer in maintaining industrial unit, no ground for adhering to prior determination that craft is to be included in industrial unit; closed -shop contract covering industrial unit made in reliance upon prior determination that separation of craft unit from industrial unit was inappropriate, no ground for Board adhering to determination in subsequent representation proceeding where doubt exists whether contracting union was freely chosen representative when contract PACIFIC GREYHOUND LINES 113 was made and contract at time of representation proceeding can be terminated unilaterally by either party thereto-Investigation of Representatives : Scope of Issues: Employer Assistance to Competing Union or Effects Thereof: pro- ceedings under Section 9 (c) contemplate inquiry into and hearing upon all matters necessary and relevant to an investigation of the controversy con- cerning representation and to a determination of the statutory representative ; where existing closed-shop contract is urged as basis for stay of investigation and determination of representatives, question whether contracting union did not constitute a freely chosen representative at time contract was made because of prior employer action illegal under Act, or whether doubt in that respect existed, properly within scope of issues of representation proceeding ; deter- mination of such question requires no filing of a charge and proceedings under Section 10 ( b) and ( c) -Investigation of Representatives : Statutory Contract as Basis for Board not Proceeding under Section 9 (c) : in furtherance of policy of Act to attain stabilized labor relations in industry through collective bargaining agreements Board will not as a matter of administrative discretion proceed under Section 9 ( c) where statutory contract between employer and lawful statutory representative is outstanding , and no circumstance shown indicating policy would not be furthered ; doubt whether contracting union upon execution of closed-shop contract was a freely chosen statutory repre- sentative purged of effects of prior unlawful employer assistance , reason for not considering contract ground for staying investigation and determination of representatives ; instability of contractual obligation resultant from provision of statutory contract permitting termination of contract by unilateral action at or about time of representation proceeding , reason for not staying investigation Mr. John P. Jennings and Mr. John T. McTernan, for the Board. Brobeck, Phleger and Harrison, by Mr. Gregory A. Harrison and Mr. Moses Lasky, of San Francisco, Calif., for the respondent. Mr. D. A. MacKenzie, Mr. W. P. Nutter, and Mr. C. P. Randall, of San Francisco, Calif., for the Brotherhood. Mr. Robert Littler and Mr. Herbert E. Wenig, of San Francisco, Calif., for the Amalgamated and the Amalgamated, Division No. 1114 thereof, intervenor. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by Brotherhood of Railroad Trainmen, herein called the Brotherhood, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twentieth Region (San Francisco, California), issued a complaint dated June 14, 1939, against Pacific Greyhound Lines, a corporation, San Fran- cisco, California, herein called the respondent, alleging that the re- 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent had engaged and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accom- panied by notice of hearing, was duly served upon the respondent, upon the Brotherhood, and upon Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, herein called the Amalgamated, a labor organization claiming an interest in this proceeding.' With respect to the unfair labor practices the complaint alleged (1) that the respondent on April 25, 1939, and thereafter, refused to bargain collectively with the Brotherhood as the representative of bus drivers employed by the respondent although the Brotherhood was at all times the exclusive collective bargaining representative of these employees pursuant to Section 9 (a) of the Act 2 and on March 10, 1939, had been certified to be such representative by the Board in certain consolidated representation proceedings, entitled Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America; Matter of Pacific Greyhound Lines and Brotherhood of Railroad Trainmen, Cases Nos. R-926 and R-927,3 herein called the Represen-, tation Proceedings; and (2) that the respondent by its said refusal to bargain collectively with the Brotherhood interfered with, re- strained, and coerced its employees in the exercise of rights guar- anteed to them by Section 7 of the Act. On June 24, 1939, the respondent filed an answer, averring that on April 25, 1939, it "declined to grant" the Brotherhood "a con- ference" for collective bargaining which that labor organization as the exclusive bargaining representative of the respondent's bus drivers previously requested, that at all times since the respondent "failed" to bargain collectively with the Brotherhood as such repre- sentative, but that the respondent's conduct in this or any other respect constituted no unfair labor practice under the Act. The answer, in paragraphs III to XVII thereof, further alleged, among other things, that the certification issued by the Board on March 10, ' The name of the Amalgamated is thus stated in its constitution. 2 Section 9 (a) of the Act provides : Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3 9 N. L. R. B. 557 (Decision and Direction of Elections, October 29, 1938) ; 9 N. L. It. B. 578 (Amendment to Decision and Direction of Elections, November 10, 1938) ; 10 N. L. R B 659 (Second Amendment to Decision and Direction of Elections, December 14, 1938) ; 11 N L R B 1070 (Supplemental Decision, Certification of Representatives, and Order, March 10, 1939). PACIFIC GREYHOUND LINES 115 1939, certifying the Brotherhood as the exclusive collective bargain- ing representative of the respondent 's bus drivers , and the "orders and decisions" in the Representation Proceedings upon which certifi- cation was based, were invalid ; that prior to that date, on April 15, 1938, the respondent and the Amalgamated ' entered into certain agreements at times herein called the "Master Agreement, as sup- plemented," and at times "the contract of April 15, 1938, " "adopting and affirming" a collective agreement previously made by- the parties on September 7, 1937, with respect to wages, hours of service, and other working conditions of employees of the respondent, includ- ing bus drivers , and requiring all such employees to be members of the Amalgamated,' the respondent thereby agreeing "to recognize the Amalgamated Union e as the sole representative for the purpose of collective bargaining of its employees not represented by other unions affiliated with the American Federation of Labor "; that at the time of entering into these agreements , a majority of the bus drivers employed by the respondent were, and at that time and at all times thereafter a majority of all the respondent 's employees were and are, members of the Amalgamated and had chosen it as their exclusive collective bargaining representative ; that said agree- ments were to remain in force and effect until December 31, 1939; 7 that after the issuance of the above -mentioned certification of March 10, 1939, the Amalgamated notified the respondent that it would con- test the validity of the certification and would pursue its remedy as a party aggrieved for a review thereof in manner provided by law ; that the Amalgamated 8 contends that these agreements are valid and binding upon the respondent in all respects , that pursuant to the provisions thereof it is and will continue to be the exclusive * The answer refers throughout to the Amalgamated as the labor organization with whom the respondent from time to time made the collective agreements therein mentioned, and to whom recognition was extended as bargaining representative of all employees of the respondent, including bus drivers , except employees who were members of other unions affiliated with the American Federation of Labor. In their briefs both the respondent and the intervenor, mentioned below, similarly refer to the Amalgamated , as such, as the con- tracting party, and the intervenor also refers to itself in that capacity . The agreements were not made with the Amalgamated , as such, but with Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America , Pacific Greyhound Divi- sion No. 1114, hereinafter referred to as the Amalgamated , Division No. 1114, a local division of the Amalgamated comprising employees of the respondent who are members of the Amalgamated. The provisions contained in these agreements relating to recognition for purposes of collective bargaining representation , similarly advert to the Amalgamated, Division No. 1114, and not to the Amalgamated , as such , as the collective bargaining repre- sentative. However, it is clear from the character of the intervention and otherwise that the Amalgamated and its division have been treated by all parties as one and the same representative 5 This closed-shop requirement, as agreed upon, was that the employees would be mem- hers of the Amalgamated , Division No 1114. See footnote 4, supra 6 See footnote 4, supra. 7 The contract of April 15, 1938, apparently was rene\ied automatically on December 31, 1939 The record does not show otherwise 8 See footnote 4, supra. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining agent of all the respondent's above-mentioned employees, including bus drivers, and that it "will hold the respondent strictly accountable in damages and otherwise for any failure .. . to comply with all of the terms and provisions of the contract and for any refusal to treat the, Amalgamated Union 9 as a contracting party thereto and as the exclusive bargaining agent for all [the respondent's] . . . employees, including the bus drivers." On June 27, 1939, the Amalgamated and Amalgamated Association of Street, Electric Railway and Motor .Coach Employes of America, Pacific Greyhound Division No. 1114, a local division of the Amalgam- ated, herein called the Amalgamated, Division No. 1114,10 filed a petition requesting leave to intervene in this proceeding. The Amalgamated and its division were referred to in the petition and at the hearing as, and are hereinafter called, the intervenor. The petition set forth various matters relating to the existence of the contract of April 15, 1938, already mentioned in connection with the allegations of the respondent's answer; 11 and alleged that since March 10, 1939, when the certification of the Brotherhood issued, and "for at least two months" prior to the filing of the intervenor's petition herein, a majority of the respondent's bus drivers were mem- bers of the Amalgamated and of the Amalgamated, Division No. 1114, and had designated that organization their exclusive agent for collec- tive bargaining. The petition requested leave to intervene "in order to protect the contract ... and in order to protect the status of said Amalgamated Association and said Division as the exclusive agent for- collective bargaining as aforesaid and for any other purpose." Pursuant to notice a hearing was held in San Francisco, California, on June 29 and 30, 1939, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. The Board, the respondent, the Brotherhood, and the intervenor appeared by counsel. At the open- ing of the hearing counsel for the Board moved to strike from the respondent's answer paragraphs III to XVII, both inclusive, to- gether with annexed exhibits "B," "C," "D," "E," and "F" thereof, for the reason, principally, that these paragraphs and respective exhibits stated no defense to the complaint, but constituted matters of argument, opinion, and conclusion; and further, if they did set forth any defense, such defense was one already concluded in so far as the instant case was concerned by the Representation Proceedings and if to be availed of at all properly should be raised before the United States Circuit Court of Appeals of the appropriate circuit in 9 See footnote 4, supra. 10 See footnote 4, supra. 11 There are some variations between the allegations of the petition and of the respond- ent's answer in regard to the agreement. PACIFIC GREYHOUND LINES 117 proper proceeding under the Act. The Trial Examiner granted the motion. He also granted the petition to intervene, above mentioned, subject to the, limitation, however, that proof offered thereunder be restricted to matters in., issue affecting the intervenor. The Board, the respondent, the Brotherhood, and• the intervenor were represented by counsel and participated in the hearing. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues material to their interests. During the course of the hearing the Trial Examiner in conformity with his rulings on the above motion and petition, refused to admit in evidence the record in the Representa- tion Proceedings and certain other, testimony and documentary evi- dence offered by the respondentL_and by the intervenor, respectively, in support of the answer and petition. At the close of hearing he denied a motion of the intervenor that the proceedings be stayed until the Board acted on a certain petition for investigation and certification of representatives which it filed in the Regional Office on or about June 27, 1939. The Trial Examiner made rulings on other motions and objections to the admission of evidence. The Board is of the opinion that as a matter of proper administrative procedure and in accordance with principles governing judicial review hereinafter discussed, the Trial Examiner should have ad- mitted to the record the exhibits 12 offered by the parties pertaining to the record in Matter of Pacific Greyhound Lines and Brotherhood of Locomotive Firemen and Enginemen, Case No. R-195.13 These exhibits are hereby admitted to the record. The Board hereby also admits to the record Respondent Exhibit No. 1 and Intervenor's Rejected Exhibits Nos. 1 and 2. The.Board finds that save for the rulings of the Trial Examiner in this respect no prejudicial errors were committed.14 The rulings, so limited, are hereby affirmed. On August 4, 1939, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on each of the parties, finding that the respondent had engaged in, and was engaging in, unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist from its unfair labor practices, that it bargain collectively upon request with the Brotherhood, as the exclu- sive collective bargaining representative of all the respondent's bus 12 These exhibits are Respondent's Rejected Exhibits Nos 3, 4, 5, 6, 17, and 18. 134 N. L. R B. 520 (Decision and Direction of Election, December 16, 1937) ;,6 N. L. B. B. 163 (Supplemental Decision and'Order, March 25, 1938). 14 The propriety of the Trial Examiner's rulings in striking from the respondent' s answer paragraphs III to xvii, both inclusive, and in excluding evidence offered in connection therewith, is further considered below. , 283033-41-vol 22-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers, and that it take certain other affirmative action to remedy the unfair labor practices which he found . On August 7, 1939, the Board ordered the case transferred to and continued before it. On August 23, 1939, the intervenor filed exceptions to the Inter- mediate Report and to the conduct of the hearing, and on August 24, 1939, the Respondent did likewise. Thereafter, the respondent, the intervenor, and the Brotherhood each submitted a brief in sup- port of its respective position, and the respondent further submitted a brief in reply to the brief of the Brotherhood, and a supplemental brief. Pursuant to notice , and upon request of the intervenor, a hearing for the purposes of oral argument was held on September 28, 1939, before the Board in Washington, D. C. The intervenor and the Brotherhood appeared by counsel , presented oral argument, and otherwise participated in the hearing. The Board has considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Pacific Greyhound Lines, the respondent, is a California corpora- tion, having its principal place of business in San Francisco, Cali- fornia. It operates an interstate motor bus transportation system in the western section of the country, transporting for hire passen- gers, baggage, mail, express, and newspapers under regularly pub- lished tariffs in or through the States of Oregon, California, Nevada, Arizona, Utah, New Mexico, and Texas. For the year ending De- cember 31, 1938, the respondent carried 8,463,532 passengers a total of $35,008,023 bus miles, and 551,374,935 passenger miles for a total operating revenue of $9,423,840. During the same period it expended $2,812,361 in wages and salaries , in addition to a management fee of $7,200 which it paid to The Greyhound Corporation, the holder of a majority of its outstanding stock. On December 31, 1938, the respondent owned 507 passenger busses, of which 458 were operated, and employed 1,551 employees, of whom 187 were office employees, 676 were passenger-car operators, 259 were station employees, 359 were garage employees and 70 employees had miscellaneous classi- fications. On that date, the value of its total consolidated assets was $12,651,537. The respondent through stock ownership controls two subsidiaries, California Parlor Car Tours Company and Pacific Southland Stages, PACIFIC GREYHOUND LINES 119 Incorporated, and owns 50 per cent of the capital stock of Union Stage Terminal Company, Portland, Oregon. By means of inter- change agreements with independent motorbus companies and of operating traffic and facility arrangements with other so-called Grey- hound companies, the respondent and its subsidiaries operate as a coordinated part of an integrated system of national motorbus transportation. We find ,that the respondent is engaged in traffic, commerce, and transportation among the several States, and that the employees of the respondent are directly engaged in such traffic, commerce, and transportation. H. THE ORGANIZATIONS INVOLVED Brotherhood of Railroad Trainmen is a labor organization admit- ting to its membership all persons employed as bus drivers by the respondent. Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America is a labor organization affiliated with the American Federation of Labor, admitting to, its membership all employees of the respondent with the exception of executive and supervisory employees and employees who are members of any other labor organization affiliated with the American Federation of Labor. Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, Pacific Greyhound Division No. 1114, is a local division of the Amalgamated, comprising employees of the respondent who are members of the Amalgamated. III. THE UNFAIR LABOR PRACTICES A. The Brotherhood as the exclusive collective bargaining representa- tive of the respondent's bus drivers, so certified by the Board on March 10, 1939, in the Representation Proceedings On March 10, 1939, the Board issued a Supplemental Decision, Cer- tification of Representatives, and Order in the Representation Pro- ceedings,15 wherein it.found as a fact that the bus drivers employed by the respondent "constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of [the respondent] . . . the full benefit of their right to self-organiza- tion and to collective bargaining and otherwise will effectuate the policies of the Act" ;16 and concluded as a matter of law that the bus drivers "constitute a unit appropriate for the purposes of col- lective bargaining, within the meaning of Section 9 (b) of the is 11 N L R. B. 1070. ' 11 N. L. R. B. 1070, 1073. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act." 17 The Board certified that the Brotherhood had been "designated and selected by a majority of-the bus drivers of [the respondent] . . . as their representative for the purposes of collective bargaining, and that, pursuant to the provi- sions of Section 9 (a) of the Act, [the Brotherhood] . . . is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment." 18 The proceedings eventuating in the certification appear in the Decision and Direction of Elections, the Second Amendment to De- cision and Direction of Elections, and the supplemental decision issued in the Representation Proceedingsl0 On June 7, 1938, the Amalgamated initiated representation proceedings under Section 9 (c) of the Act by filing a petition with the Regional Director in which it requested the Board to investigate a question which had arisen con- cerning the representation of the respondent's employees for collective bargaining and to ascertain and certify an exclusive collective bar- gaining representative for these employees.20 On June 13, 1938, the Brotherhood filed a similar petition with the Regional Director 2' On June 15, 1938, pursuant to order of the Board, the Regional Director issued and caused to be served upon the Brotherhood, the Amalgamated, and the respondent notice of a consolidated hearing to be held on the two petitions. Thereafter, the matter of the peti- tions was heard before a Trial Examiner in a consolidated hearing participated in by the respondent, the Amalgamated, the Brother- hood, and the Board. On October 29, 1938, the Board issued the Decision and Direction of Elections in which it made findings of fact and conclusions of law, considered various contentions of the parties, and directed the Regional Director to conduct two elections by secret ballot among the employees of the respondent. Under the Direction of Elections, as thereafter amended'22 one election was to be held among the bus drivers employed by the respondent to de- termine whether they desired to be represented for purposes of collective bargaining by the Amalgamated, by the Brotherhood, or -I IN. L. R. B 1070, 1074. 19 11 N L R. B. 1070, 1074. 19 See footnote 3, supra. 20 Section 9 (c) of the Act provides Whenever a question affecting commerce arises concerning the representation of employees , the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected In any such investigation , the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under section 10 or otherwise , and may take a secret ballot of employees , or utilize any other suitable method to ascertain such representatives. 20 These petitions were thereafter amended. 9 N. L. R. B. 557, 559 ; 10 N. L. R. B. 659. 2210 N. L R B. 659 PACIFIC GREYHOUND LINES 121 by neither, and a second among station and clerical employees, exclu- sive of executives and supervisors, to determine whether or not they desired to be represented by the Amalgamated for purposes of collective bargaining. As stated in the Decision and Direction of Elections'23 and amendement thereto'24 the Brotherhood took the position in the Representation Proceedings that all bus drivers employed by the respondent constituted by themselves a unit appropriate for collec- tive bargaining, and, that it, the Brotherhood, pursuant to Section 9 (a) of the Act was the exclusive representative of these employees for collective bargaining purposes. On the other hand, the re- spondent contended that the bus drivers alone did not constitute an appropriate bargaining unit, and, hence, the Brotherhood was not their statutory representative; that the bus drivers were all part of a larger bargaining unit composed of all the respondent's em- ployees except shopmen'25 viz, bus drivers and station and clerical employees, exclusive of executives and supervisors. The Amal- gamated, prior to the issuance of the Direction of Elections, was in accord with the respondent's view as to the appropriate bargaining unit, but thereafter and prior to the holding of the elections, filed in the proceedings an amended petition in' which it concurred in the Brotherhood's position that the bus drivers alone could constitute an appropriate unit.2° However, it also urged two other units of employees as being appropriate, the larger unit com- posed of bus drivers and station and clerical employees, exclusive of executives and supervisors, and a so-called residual unit consist- ing of station and clerical employees, exclusive of executives and supervisors. The Amalgamated claimed that it had been designated as collective bargaining representative by a majority of the em- ployees in each of the three units, and, therefore, that it was the sole representative of all such employees for collective bargaining. In the Decision and Direction of Elections, and second amend- ment thereto, the Board found that the bus drivers of the respond- ent could be considered as a separate unit appropriate for collective bargaining, or as a part of a larger bargaining unit consisting of as 9 N. L. R. B. 557, 571 24 10 N. L R. B. 659. 25 Generally speaking, the respondent contended that all its employees, excluding execu- tives and supervisors, and persons who were members of an affiliate of the American Feder- ation of Labor other than the Amalgamated , were within the appropriate bargaining unit. Thus, the respondent originally claimed that shopmen , except those employed in Los An- geles and San Francisco , were in the unit. Iiowevei , it later appeared in the Representa- tion Proceedings that these shopmen like shopmen at Los Angeles and San Francisco, were under the jurisdiction of another affiliate of the American Federation of Labor. Upon petition of the Amalgamated all shopmen were excluded from the case . 10 N. L R. B. 659. M10N . L R,B 659 . 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the, respondent's bus drivers, and station and clerical help, exclusive of executives and supervisors.27 The Board determined that under these circumstances it would resolve this issue in accordance with what the desires of the employees for collective bargaining repre- sentation would indicate, as these desires were disclosed in the elec- tions. The Board stated that if in the election directed among the bus drivers a majority of the drivers voted for the Brotherhood, or if in that election a majority voted for the Amalgamated and a majority of the station and clerical employees in the second election did not vote for the Amalgamated, the Board would determine that the bus drivers alone constituted a unit appropriate for the pur- poses of collective bargaining and would certify either the Brother- hood or the Amalgamated, whichever organization received a majority of the bus drivers' votes, as the exclusive collective bar- gaining' representative of the -bus drivers.28 However, if a majority of the bus drivers in the first election and a majority of the station and clerical employees in the second voted for the Amalgamated, then the Board would determine that the larger unit consisting of bus drivers and station and clerical employees, exclusive of execu- tives and supervisors, to be appropriate and would certify the Amalgamated as the exclusive representative of all employees in such unit.211 Finally, if a majority of the bus drivers voted for the Brotherhood, and a majority among the station and clerical em- ployees voted for the Amalgamated, then, as already stated, the Board would certify the Brotherhood as the sole representative of the bus drivers, and also would certify the Amalgamated as the sole representative of the other employees.30 From December 15 to 28, 1938, the election directed among the bus drivers was held, and in January 1939 ballots were taken of the sta- tion and clerical employees, exclusive of executives and supervisors.s' In the bus drivers' election a substantial majority of the votes cast, 364 of the 605 counted, were for the Brotherhood.32 The Amalgam- ated received 227 votes.33 In the other election the Amalgamated, which was the only labor organization on the ballot, did not obtain a majority of the votes counted. It received 130 of 262 votes.34 Thus, the elections showed that a substantial majority of the bus drivers desired to be represented for purposes of collective bargaining by the Brotherhood, whereas neither a majority of the bus drivers nor a 87 9 N. L. R. B. 557; 10 N . L. R. if 659` 28 9 N. L. R. B. 557 , 571-574; 10 N. L. R. B. 659. 29 9 N. L. R B 557 ; 10 N. L. R. B. 659, 663 30 10 N. L R B. 659. 8111 N. L. R. B. 1070 11 N. L. R. B. 1070. 8811 N. L. R. B. 1070 8411 N. L. R. B. 1070 PACIFIC GREYHOUND LINES 123 majority of the bus drivers and station and clerical employees exclu- sive of executives and supervisors, nor a majority of the station and clerical employees exclusive of executives and supervisors, desired to have the Amalgamated act as their bargaining agent. On March 10, 1939, the Board, as stated above, found upon the entire record in the Representation Proceedings that the respondent's bus drivers constituted an appropriate bargaining unit; and found and certified that the Brotherhood had been designated by a majority of these employees as their collective bargaining representative and that pursuant to Section 9 (a), the Brotherhood was the statutory representative of all these employees for collective bargaining. The Board dismissed the petition of the Amalgamated for an investiga- tion and certification of representatives. The Trial Examiner by various rulings at the hearing herein held that an attack made by the respondent and the intervenor in tlee in- stant case upon the validity of the determinations, findings, conclu- sions, and certification of the Board in the Representation Proceed- ings was inappropriate; that it involved matters which the parties in the instant case as interested parties to the Representation Pro- ceedings either already had presented to the Board and had had determined, or which they could have submitted to the Board for consideration; that if reexamination of matters considered and deter- mined in the Representation Proceedings was desired the proper forum was the United States Circuit Court of Appeals in a proceed- ing on petition for the review of such order as the Board might issue herein. As already indicated, the Trial Examiner struck from the respondent's answer allegations raising these matters, and refused to admit into evidence the entire record of the Representation Pro- ceedings, as well as particular portions thereof, and other proof which the respondent and the intervenor offered as a basis for their attack. These parties contend that they thereby were deprived of a fair hearing by the Board on material issues. This contention rests on a misapprehension of the legal effect which the determinations, findings, and conclusions of the Board in a rep- resentation proceeding under Section 9 (c) of the Act,35 and of the certification based thereon, have upon issues in a subsequent complaint proceeding under Section 10 (b) and (c) where it is charged that the employer contrary to Section 8 (5) has refused to bargain collec- tively with the certified collective bargaining representative of his employees under Section 9 (a). Upon the filing of a petition re- questing an investigation and certification of representatives, the Board in pursuance of the Act provides "for an appropriate hear- ing," 36 upon due notice to all parties in interest, including the em- 85 See footnote 20, supra. 84 Section 9 (c) of the Act. 124 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD ployer or employers' whose employees are involved 'as well as labor organizations claiming to represent such employees for collective bar- gaining -purposes. At such hearing full opportunity is afforded these parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon all matters and issues relevant to a determination by the Board of the ultimate question regarding rep- resentation with which the proceeding is concerned.37 Incidental to such a hearing the Board may "take a secret ballot" of the employees to ascertain their choice of collective bargaining representative. Upon hearing being had, the Board' issues its decision, which there- after it may .amend or supplement, wherein it makes its determina- tions, findings, and conclusions with respect to jurisdiction of the Board over the parties and the subject matter, and with respect to the various issues of fact and law in' controversy, a resolution of whi4 is essential to a decision of the ultimate question concerning representation involved. The determination of this question, viz, the existence and identity of a collective bargaining representative within the meaning of Section 9 (a) of the Act, is contained in the certification of representatives issued by the Board, provided such a representative is found. Where none has been found the petition is dismissed. While the determinations, findings, conclusions, and certification of the Board in a representation proceeding are not res juclicata in a subsequent complaint proceeding before the Board under Section 10 (b) and (c), we think it both the intent of the statute and a sound administrative practice that parties in interest to such representa- tion proceeding cannot try and have heard de novo in the subsequent complaint proceeding questions or matters adjudicated in the previ- ous proceeding in the absence of cogent showing of possible error in such prior proceeding. Although the Board in the exercise of its discretion and upon sufficient ground may reexamine such questions or matters, nevertheless it is entitled to treat as administratively de- cided all such determinations, findings, conclusions, and certification. This does not mean that parties in the complaint proceeding are deprived of a fair hearing before the Board on material issues. That already has been afforded them in the representation proceeding. Moreover, they are privileged to appeal to the discretion of the Board as above indicated. Nor are they thereby deprived of a judicial re- view of matters found' and determined in the representation proceed- ing.' Upon proceedings in the United States Circuit Court of Appeals on' petition to 'review the order of the Board made in the , 8'' The wide latitude such a hearing possibly may take is illustrated by the nature and number of issues with which the parties herein themselves were concerned and which were considered and decided by the Board in the Representation Proceedings. PACIFIC GREYHOUND LINES 125 complaint proceeding, they may bring before that court as part of the record on review the entire record and certification in the repre- sentation proceeding, and where, as in the Representation Proceed- ings here, determinations and findings of the Board rest in part upon findings previously made in another representation proceeding in- volving such parties,38 the record in the previous representation case to the extent relevant likewise becomes available for judicial review as part of the record on review.39 It is unimportant that proceedings under Section 9 (c) do not result in a command to anyone. Adminis- trative determinations may and often do have legal consequences even though they do not command.40 Here, the respondent and the inter- venor by their attempt to introduce into the instant case the record of the Representation Proceedings sought to have the Board reexamine the entire proceeding there had. No persuasive showing is made for such a general reexamination. We sustain the Trial Examiner's ruling in this respect. We think it equally within the statutory intent and sound admin- istrative practice that parties in interest to a representation proceed- ing cannot in a subsequent complaint proceeding require the Board to withhold presumptive effect from its previous determinations, find- ings, conclusions, and certification, on the ground that the Board in the representation proceeding failed to consider matters or evidence which the parties there could have presented but which they failed to do without apparent reasonable cause. In the instant case the parties had their opportunity to be heard by the Board with 'regard to such matters in the Representation Proceedings, and the fact that they did not avail themselves thereof does not entitle them as a matter of right to a second opportunity. While it may be, that their action has foreclosed judicial review of such matters, that con- sequence is attributable to the parties themselves.41 The respondent and the intervenor in the instant case do not con- fine their argument respecting the asserted invalidity of the determi- nations, findings, conclusions, and certification to the contention that the Trial Examiner denied them an opportunity to have reexamined and heard generally matters involved in the Representation Proceed- ings or matters upon which a hearing there could have been had. By addressing themselves to the decision of the Board in those pro- ceedings 42 and by relying upon specific evidence, proffered but re= 38 See Section 9 (d) of the Act. 39 9 N. L. R. B 557. Further consideration of this question is given below 4°American Federation of Labor, et at. V. N. L. R. B, 308 U. S. 401, aff'g 103 F (2d.) 933 (C App. D. C.), enf'g Matter of Shipowners' Association of the Pacific Coast, et at. and International Longshoremen's and til'arehousemen's Union, District No 1;_7 N. L. R B. 1002. 41 Matter of Pittsburgh Plate Glass Company and , Federation of Flat Glass Workers of America, affiliated with C. I. 0., 15 N. L. R. B.'515. 42 9 N. L. R. B. 557. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jetted, other than the record as a whole in the Representation Pro- ceedings, they present in their argument herein what apparently amounts to substantially their entire positions, respectively. In view of the respondent's determination, as more particularly set forth below, to withhold recognition from the Brotherhood as sole bar- gaining representative of its bus drivers, irrespective of the fact that these employees in an election under Government auspices chose the Brotherhood to represent them, we deem it of some importance to express our views further as to reasons for adhering to our previous determinations, findings, conclusions, and the certification. The respondent contends that the provisions of the Act relating to representation proceedings, especially Section 9 (b) and (c), are unconstitutional as improper delegations of legislative poweli to an administrative agency, and, therefore, the certification as well as the determinations, findings, and conclusions upon which certification rested in the Representation Proceedings, was without legal warrant. Neither the intervenor nor the Brotherhood join in this contention. We believe that the pertinent provisions and declared purposes and policy of the Act amply demonstrate that the lawful limits of dele- gable administrative powers and functions were not in this instance transcended by the Congress. The respondent further argues that the Board, in predicating its supplemental finding of fact and con- clusion of law in the Representation Proceedings,43 to the effect that the respondent's bus drivers constitute an appropriate bargaining unit, upon the desires of these and other employees for representation as manifested in the elections, unconstitutionally delegated to such employees its statutory power to determine a representative, and, therefore, the certification, determinations, findings, and conclusions were invalid. This argument, however, not only misapprehends the doctrine of unconstitutional delegation of governmental powers but erroneously assumes that delegation of any character ink fact occurred.44 The respondent asserts further with respect to the matter of the appropriate bargaining unit that the Board's determination thereof in the Representation Proceedings was improper, because the Board in a previous representation proceeding already had found that "the bus drivers [of the respondent] alone do not constitute an appropriate unit but are to be merged in a larger unit." 45 This prior finding was made in a Supplemental Decision and Order of the Board issued in - 11 N. L. R. B. 1070, 1073, 1074. 's See International Associatson of Machinists, Tool and Die Makers, Lodge No. 35, afl- iated with the International Association of Machinists and Production Lodge No. 1200, affiliated with the International Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29 (C. App. D. C.), enf'g Matter of Serrick Corporation and Inter national Union Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. 45 Supplemental Decision and• Order , Matter of Pacific Greyhound Lines and Brotherhood of Locomotive Firemen and Engmemen, 6 N. L R. B. 163. PACIFIC GREYHOUND LINES 127 certain proceedings theretofore had before the Board in which both the Amalgamated and the respondent were parties, Matter of Pacific Grey- hound Lines and Brotherhood of Locomotive Firemen and Enginemen, Case No. R-195, herein called Case No. R-195.4° The respondent argues that the prior finding was res judicata upon the issue of appro- priate bargaining unit in the Representation Proceedings. We fully considered this point in our decision 47 in the Representation Proceed- ings and find nothing in the respondent's argument here presented persuasive of a view different from that there expressed. For reasons there stated, we conclude that the doctrine of res judicata is inapplicable. The respondent insists that even if the doctrine of res judicata is inapplicable the Board under the circumstances involved should have adhered to its prior finding, and that its failure to do so was an arbi- trary exercise of administrative discretion. The respondent alleges that it had and has a direct interest in the prior finding in that a single bargaining unit comprehending all its employees including bus drivers would be to its business advantage, that such a unit obviates "dis- ruptions" by employees in smaller units, and that its employees' in- terests also would be subserved. However, a determination in any case of the appropriate bargaining unit is concerned not so much with the employer's advantage but, under the Act, with the unit which "will insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise effectuate the policies" of the Act. The respondent also states in support of its contention that the departure from the prior finding was arbitrary, that on April 15, 1938, prior to the filing of the petitions in the Representation Proceed- ings, the respondent and the Amalgamated, Division No. 1114, exe- cuted, as the Board in the decision there found '411 the Master Agreement, as supplemented, stipulating that the respondent's bus drivers and likewise its station and clerical employees should become . members of that organization by May 15, 4938, as a condition of em- ployment, and providing for wages, hours of service, and other working conditions of the employees covered by said closed-shop stipulation. The respondent urges that it made the contract in reliance, among other things, upon the prior finding, that, the bus drivers did not con- stitute alone an appropriate unit; that the finding and conclusion in the Representation Proceedings that they did, would and will result, if the respondent be under duty to bargain collectively with the Brotherhood as the certified representative, in a breach of the contract 46 This case is referred to by similar description in the decision in the Representation Proceedings. See footnote 13, supra. 47 9 N. L. R. B 557, 573-574. 48 9 N. L. R. B. 557. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of April 15, 1938; and, therefore, the Board in the Representation Proceedings, to avoid such a result, should have adhered to the prior finding. However, this proposition, apart from its assumptions re- garding breach of contract whose tenability we consider hereinafter, actually is concerned not so much with whether a prior finding of ap- propriate bargaining unit should generally be followed by the Board in a representation proceeding where such unit is embodied in the terms of a current collective contract, but with whether the Board in the Rep- resentation Proceedings, for the reasons expressly there stated in the decision, and in view of all the circumstances, acted arbitrarily in holding the contract of April 15, 1938, no bar to the exercise of the Board's authority under Section 9 (c) to investigate the question con- cerning representation which the petitions of the Amalgamated and the Brotherhood had raised. The doubtful status which the Amalgam- ated and its Division occupied on April 15, 1938, as a freely chosen bargaining representative, and the termination provision of the con- tract of April 15, 1938, there discussed and further considered below, indicate that the Board in directing the elections engaged in no arbitrary exercise of its statutory power. However, the respondent and to some extent the intervenor ques- tion generally on grounds of improper exercise of administrative discretion and otherwise the propriety of the Board's determination in the Representation Proceedings that the contract of April 15, 1938, was not decisive of the intervenor's claim to exclusive representation of the respondent's bus drivers and other employees. It is contended that the Board in the exercise of a sound administrative discretion should have held that the contract precluded any investigation and determination of the question whether the Brotherhood or the Amal- gamated and its 'Division was the statutory representative of the respondent's bus drivers, and whether the Amalgamated and its Di- vision was the exclusive bargaining representative of the station and clerical employees. As stated in the Decision and Direction of Elections '0 in the Rep- resentation Proceedings, on December 16, 1937, prior to the insti- tution of those proceedings, the Board in Case No. R-195 issued a Decision and Direction of Election 50 wherein it found in considering various issues before it that the respondent during the period com- mencing about April 14, 1937, and continuing thereafter, by various acts assisted the Amalgamated in its organizational activities among the employees of the respondent and discouraged membership in a competing labor, organization known as Brotherhood of Locomotive 99 9 N L. R. B 557. 60 4 N. L. R. B 520. PACIFIC GREYHOUND LINES 121 Firemen and Enginemen ; that the respondent on April 21 , 1937, made a contract with the Amalgamated , Division No. 1114, as the bargain- ing representative of all employees except those represented by other affiliates of the American Federation of Labor although the Amal- gamated neither claimed to represent nor actually did then represent a majority of said employees ; 51 that in view of the respondent's, encouragement of membership in the Amalgamated , as aforesaid, that organization , and accordingly Division No. 1114, did not constitute an unfettered choice of bargaining representative of the employees purported to be represented ; that because the effects of such employer assistance were existent on September 7, 1937, when the respondent and the Amalgamated , Division No. 1114, first executed the Master Agreement , the Amalgamated , and accordingly its Division, was not at that time a freely chosen representative of the employees pur- ported to be represented even though written approval of the terms of the contract may have been obtained from a majority of them.52 Approximately 6 months after the issuance of this decision the Amal- gamated filed in the Regional Office the petition for investigation and certification of representatives which instituted the Representa- tion Proceedings . In the notice of a consolidated hearing to be held upon that petition and upon a similar petition filed by the Brother- hood, the Board notified all parties to the proceedings that "evidence will be received on the matter of whether the encouragement of mem- bership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America . . . found . . . to have been committed by Pacific Greyhound Lines (in Case No . R-195, December 16, 1937, . . . ) or the effects thereof, has continued down to and including the present time ..." Prior to the filing by the Amalgamated of its petition and 4 months after the above -mentioned decision in Case No . R-195, the respondent and the Amalgamated, Division No. 1114, executed the contract of April 15 , 1938, here in- volved. Therein , as heretofore mentioned , the parties reexecuted the Master Agreement first executed on September 7, 1937 , and declared it "to be and to have been valid, and subsisting and enforceable at all times" ; accorded the intervenor 53 recognition as the sole collective 61 Such a contract contravened Section 9 ( a) and Section 8 (1) of the Act See N L R B v. Jones cF Laughlin Steel Corporation , 301 U. S 1, 44, 45 0 The Board in Case No R-195 directed an election solely among the bus drivers of the respondent, 4 N L. R B 520, 540 In the Supplemental Decision and Order issued in that case on March 25, 1938, 6 N L It. B 163, the Board found that Brotherhood of Locomo. tive Fn emen and Enginemen did not represent a majority of the respondent 's employees in, an appropriate bargaining unit and dismissed the petition. See the Decision and Direction. of Elections in the Representation Proceedings, 9 N L R. B 557, 564-565 , for a discussion concerning the results of the election in Case No. R-195 53 See footnote 4, supra. See 9 N. L. R B 557, 568 . . 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representative of the respondent's bus drivers, and station and clerical employees, and provided for a closed shop in favor of the intervenor 51 covering bus drivers, and station and clerical employees. The Board held in the Representation Proceedings that the contract of April 15, 1938, did not preclude a determination either "of the question concerning representation," or "of the question of appro- priate unit." 55 Two reasons were stated. In respect to the first the Board said : 56 In Case No. R-195 this Board found, as above set forth, that the Amalgamated at the time of the execution of the initial contract on April 21, and the Master Agreement on September 7, 1937, was not, because of assistance by the Company, the freely chosen representative of the employees purported to be represented. In the record before us there is no showing that at any time since September 7 the effects of this assistance were removed or dis- sipated. Indeed, after the issuance of the Decision and Direc- tion of Election on December 16, 1937, instead of steps being taken to establish conditions for the exercise of a free choice of representative by the employees, the relations between the Company and the Amalgamated continued as theretofore. The maintained recognition accorded Division No. 1114 in the succes- sive contracts of April 21 and of September 7, 1937, and the declaration on the part of the Company in the Supplemental Agreement of September 7 of a willingness to grant the Amal- gamated a closed shop and check-off, alone would tend, in the absence of remedial action by the Company or otherwise, to perpetuate until April 15, if not beyond then, the influences originally engendered by the Company's conduct. In this cir- cumstance we are not satisfied that the effects of the Company's assistance did not continue after September 7 and were not ex- istent on April 15 when the execution of the Master Agreement was reaffirmed and the closed-shop addendum executed. We accordingly cannot find, on the record presented, that on April 15, 1938, when the execution of the Master Agreement was reaffirmed and the closed-shop addendum executed, the Amalga- mated and Division No. 1114 were the freely chosen represent- ative of a majority of the Company's employees, excluding members of other American Federation of Labor affiliates. ^ Necessarily , a provision requiring membership in the Division meant membership in Amalgamated of which the Division was a part sa 9 N. L. R. B. 557, 570, 574. 50 9 N. L. R. B. 557, 569, 570. PACIFIC GREYHOUND LINES 131 Because of the doubtful status of the intervenor on April 15, 1938, as a freely chosen representative purged of the effects of the unlawful employer assistance previously rendered to it, the Board, on the basis of policy and as a matter of administrative discretion, did not consider the contract executed on that date ground for it not pro- ceeding to an investigation and determination of representatives.57 The Board also held 68 that because of a provision in the contract of April 15, 1938, for automatic renewal thereof unless either party thereto gave the other notice of termination, the resultant instability of contractual obligation at the time the Representation Proceedings 67 The Board in furtherance of the policy of the Act to attain stabilized labor relations in industry through collective bargaining agreements has as a matter of administrative discretion not proceeded under Section 9 (c), when it has appeared that there was then outstanding a valid collective agreement between the employer and a lawful statutory rep- resentative of his employees providing for recognition of the representative as sole bargain-' ing representative of the employees , and no other circumstance which would indicate that the policy would not be furthered . The members of the Board have not been in entire agreement as to the length of time to be fixed for such stay . See Matter of The National Sugar Refining Company of New Jersey, L. I. City Refinery and Local 11,76, Sugar Refinery Workers. International Longshoremen's Ass'n., 10 N L. R B . 1410; Matter of Superior Electrical Products Co. and Metal Polishers, Buffers, Platers and Helpers International Union Local No. 13, 6 N. L. R. B. 19 , Matter of American Hair it Felt Company and Jute, Hair it Felt Workers Local # 163 (United Furniture Workers of America, CIO ), 15 N L. R B. 572 , Bon Ton Curtain Company and American Federation of Labor, Federal Union, 20 N L R B. 462 However , where the mentioned policy of the Act would not be fur- thered , the Board has proceeded with an investigation and determination of representatives despite the outstanding exclusive recognition collective agreement - Matter of Colonic Fibre Company, Inc and Cohoes Knit Goods Workers Union No. 21511,, A. F. of L., 9 N L. R. B. 658, 660; Matter of Showers Brothers Company, Inc . and National Furniture Workers Local No 1, of the Upholsterers International Union of North America, A ffiliated with the American Federation of Labor, 13 N. L R. B . 829; Matter of J. Edwards it Co. and United Shoe Workers of Amei ica, Local 127. C I 0 , 20 N L R B . 244 (wbete the agreement was made or renewed by the employer after formal notice of the claim of a rival labor organization to exclusive recognition) ; Matter of Southern Chemical Cotton Company and Textile Workers Organizinq Committee, 3 N. L R B . 869, Matter of American-West African Line, Inc and National Marine Engineers' Beneficial Association, 4 N. L It. B 1086 (where doubt existed whether the union which obtained the agreement represented a majority of employees when the contract was signed ) ; Matter of Pacific Greyhound Lines and Brother- hood of Locomotive Firemen and Enginemen, 4 N. L R B 520 (where contracting union was found not to have represented a free choice of a majority of the employees when the contract was signed ) ; Matter of Union Premier Food Stores , Inc, a Pennsylvania Corpo- ration, et al. and United Retail & Wholesale Employees of America, Affiliated with the Con, gress of Industrial Organizations, 11 N. L. R B 270 , 277; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N. L R. B. 782, 785 (where contract was made or renewed after the filing of petition for investigation and cer- tification of representatives ) ; Matter of Quality Furniture Mfg Co. and United Furniture Workers of America Local 576, C. I. 0., 8 N. L. R. B 850 , 853; Matter of Martin Bros Boa Company and Toledo Industrial Union Council, 7 N L. R. B. 88, 91 ( where the agreement was about to expire or be renewed ) ; Matter of Wickwire Spencer Steel Company and Fed- erated Industrial Union, 18 N L R. B . 372 (where the contract provided for termina- tion upon certification of a new bargaining representative by the Board ). The issue whether proceedings under Section 9 '(c) should be stayed has not been affected by the fact that the contract granting exclusive recognition also contains a provision for a closed shop. ( See cases above cited.) - 9 N. L. R. B. 557, 570 132 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD were begun '59 constituted a second reason for the Board not staying the investigation.80 The respondent and the intervenor assert that the proceedings in Case No. R-195 and in the Representation Proceedings were of restricted character, so limited by the Act and the issues made, and that the Board went beyond the proper scope of inquiry in those cases by its findings regarding illegal employer assistance to the Amalgamated and its Division, the incapacity of that organization to act as a freely chosen'bargaining representative for the respond- ent's employees, and the doubt in that respect which existed concern- ing that organization's status as an unfettered bargaining repre- sentative on April 15, 1938. Hence, it is stated, "the purported con- clusions of the Board [in the Representation Proceedings] that the existing contracts bet-Ween respondent and Amalgamated are to be disregarded because in some way induced by unfair labor practices of respondent, necessarily fall to the ground and, as a corollary, the contracts necessarily survive and control the situation." 61 This posi- tion misconceives the proper scope of proceedings brought under Section 9 (c) of the Act. It also misapprehends the basis of the Board's determination that the contracts did not bar the elections. Section 9 (c) authorizes the Board "whenever a question affecting commerce arises concerning representation of employees" for collec- tive bargaining, to investigate such controversy, making provision in that connection for "an appropriate hearing on due notice;" and to certify to the interested parties the name of any statutory repre- sentative selected by the employees involved.62 Plainly such proceed- 0 See footnote 57, supra. eo In respect to the- determination of representatives , the Board was of the opinion that the circumstances did not necessitate postponing beyond the date fixed in the Direction of Elections the taking of a secret ballot among the respondent' s employees to ascertain their choice of bargaining representative. It deteimined that the Amalgamated properly could compete with the Brotherhood in an election "under conditions removed from any sugges- tion or suspicion of coercion ," and where either the Amalgamated or the Brotherhood could establish itself a majority representative with all the rights of exclusive representation conferred by the Act upon such representative Board Member Edwin S Smith , in a sepa- rate opinion, dissented from this determination , 9 N. L. R. B 557, 577. Cf. Matter of Pilot Radio Corporation and United Electrical it Radio Workers of America, C. 1. 0., 14 N L 12 B. 1084, where the Board upon finding a local of a national labor organization had been assisted in its organization activities by the employer, postponed an election in which such local was to appear on the ballot until the employees could "consider and de- termine free from any and all employer compulsion, restraints and interference," what labor organization they wished to represent them. Cf N. L. R. B. v. The Falk Corpora- tion, 308 U. S. 453 , aff'g 102 F. (2d) 383 (C. C. A. 7), enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, 'Lodge 1528, 16 N. L. R. B 654, where the Supreme Court held,that a, company- created union "which could not emancipate itself from habitual subservience to its creator" properly could be kept off the ballot in an election directed under Section 9 (c). ii The respondent's brief. M Certification under the Act is of the exclusive bargaining representative contemplated in Section 9 (a) and ( b). Such representative is entitled to performance of the employer's duty under Section 8 (5), and represents all employees irrespective of whether a minority of employees in the appropriate unit have designated another bargaining agency to repre- sent them. PACIFIC GREYHOUND LINES 133 ings contemplate inquiry into and hearing upon all matters neces- sary and relevant to an investigation of the controversy concerning representation which is presented and to a determination of the statu- tory representative. We need not decide in the instant case to what extent it is proper in cases originating under Section 9 (c) for the Board generally to consider matters affecting the propriety of a particular labor organization acting as a bargaining representative. Nor do we decide whether the Board in all such cases is authorized to consider whether a particular labor organization has been assisted by employer action, defined as an unfair labor practice in Section 8 (1) of the Act, or has been dominated and interfered with by employer action defined as an unfair labor practice in Section 8 (2), in the absence of a prior determination to that effect under Section 10 (c). Here, the Amalgamated in Case No. R-195, and both the Amalgamated and the respondent in the Representation Proceedings, contended that the various contracts between the respondent and the Amalgamated, Division No. 1114, should be taken as resolving the questions concerning representation which the Board in those pro- ceedings was petitioned to investigate.63 The Board in considering this contention did not decide the broader question whether it would be an unreasonable exercise of its power under Section 9 (c), or inimical to the purposes and policy of the Act, for the Board to proceed with an investigation and determination of representatives where an employer and a union whose membership has not been induced by any action defined as an unfair labor practice or as to whom no doubt in that regard exists, have made a collective contract for a reasonable term extending recognition to the union as exclusive bargaining representative, or providing for a closed shop in its favor.64 The Board merely held that its exercise of plenary authority under Section 9 (c) and related subdivisions of Section 9, to investi- gate a controversy affecting commerce concerning representation and to determine the existence of a statutory representative, should, not be stayed by considerations of contractual relations under an exclusive recognition or closed-shop contract if such contract was made with , a union which because of illegal employer action did not constitute a freely chosen representative or because of such action doubt existed at the time of the making of the contract whether it did constitute such a representative.65 In the Representation Proceedings a sharp controversy existed between the Amalgamated and the Brotherhood regarding which of the two unions was designated collective bargain- ing representative by the bus drivers, and the Board in the exercise - 4 N. L R. B. 520, 525 ; 9 N. L. It. B. 557 , 568, 574. 64 See footnote 57, supra 65 As already stated, the Board also reached this conclusion in view of the termination clause of the contract. 283033-41-vol 22-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its discretion and in view of the purposes and policy of the Act determined that the contract of April 15, 1938, because of the doubtful status of the intervenor when the contract was made resultant from the respondent's prior assistance, among other circumstances, would not warrant the Board staying the proceedings. Manifestly the mat- ter of the respondent's assistance to the Amalgamated and its Divi- sion, and the question whether and to what extent that organization had rid itself of the effects of such assistance were in issue in Case No. R-195 and in the Representation Proceedings, respectively es The further argument of the respondent and intervenor that unfair labor practices cannot be tried in representation proceedings but can only be heard in proceedings under Section 10 (c) upon a charge and complaint, is beside the point. Neither Case No. R-195 nor the Rep- resentation Proceedings were concerned with charges of unfair labor practices, as such. The respondent contends that the contract of April 15, 1938, never- theless should have been held ground for the Board refraining from proceeding with the investigation and certification in the Representa- tion Proceedings, for the reason, as shown by evidence offered but re- jected at the hearing, that the respondent and the Amalgamated, Divi- sion No. 1114, in executing the contract relied upon determinations and proceedings in Case No. R-195, upon oral statements of the Regional Director that the parties could make a closed-shop agreement which would have the Regional Director's acquiescence and approval, and e6 The parties to those proceedings were given notice of such issues prior to the hearings. In Case No 8.195, the petition which accompanied the notice and to which the notice referred stated : Any other facts which petitioner considers relevant "` • ^. The so-called "Amalgamated" does not have nor never has had the membership or authorization of a majority of the drivers on the Pacific Greyhound Lines for collective bargain- ing or any other purpose. The undersigned hereby alleges that a question has arisen concerning the repre- sentation of the employees in the above bargaining unit, in that : The Pacific Grey- hound Management on Apr. 21, 1937, arbitrarily announced its recognition of the "Amalgamated" as the bargaining agency for the combined group of drivers and clerks employed by the P. G Lines, although the "Amalgamated" did not have such authority from a majority of either such class of employees , and further such a com- bination does not constitute a proper bargaining unit under the N. L. R. A. (See also attached memorandum covering this subject ) In the Representation Proceedings, the notice of hearing stated : You are further notified that at such time and place testimony or other evidence will be received on the matter of whether the encouragement of membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, or any other labor organization, or the discouragement of membership in Brotherhood of Locomotive Firemen and Enginemen , or any other labor organi- zation, found by the National Labor Relations Board to have been committed by Pacific Greyhound Lines (in Case No. R-195, December 16, 1937, 4 N. L. R. B. 72), or the effects thereof, has continued down to and including the present time, and on the matter of whether Pacific Greyhound Lines has established , maintained or as- sisted, by any action defined in the National Labor Relations Act as an unfair labor practice, any labor organization of its employees. PACIFIC GREYHOUND LINES 135 upon the fact that a majority of the respondent's employees were then members of the intervenor. We do not deem such reliance material to the issue whether the Board was precluded by the contract from ascertaining in the Representation Proceedings if the Brotherhood or the Amalgamated was the exclusive bargaining representative. One of the matters in Case No. R-195 to which reference is made, the placing of the name of the Amalgamated on the ballot, was not ground for the respondent to conclude that that labor organization then constituted a free choice:67 Under the terms governing the elec- tion in Case No. R-195 the Amalgamated could not have established itself as a statutory representative.68 Moreover, the decision which there accompanied the direction of election made findings which were ample caution to the respondent and the Amalgamated that they could not make an exclusive recognition or closed-shop agreement 4 months later which would warrant any stay of proceedings under Section 9 (c), unless all doubt of the status of the intervenor as an unfettered choice of representative had been removed:09 With respect to the alleged statements of the Regional Director these statements, if made, could acquire no such decisional finality in the Representa- tion Proceedings as the respondent would attribute to them. And, the mere fact that a majority of the employees were members of the intervenor when the contract was signed did not constitute a sufficient basis for the respondent to assume under the circumstances involved that the Union then constituted a free choice. The respondent and the intervenor also contend that the Board in the Representation Proceedings could not find that the respondent had previously assisted the Amalgamated and its Division, for the reason that no evidence on that matter was there adduced. We be- lieve that the Board in its administration of the Act properly may treat as administratively determined facts which it has found re- specting matters in issue in a prior proceeding before the Board to which the interested parties were also parties and afforded an op- portunity to be heard 70 But, the respondent and the intervenor then say, if reliance on the prior findings was appropriate the de- cision in the Representation Proceedings improperly subjected them to the burden of establishing that the Amalgamated and its Division was on, April 15, 1938, a freely chosen bargaining representative. However, whether or not a rule of burden of proof was involved, the decision on this branch of the case rested in part on an administrative principle that an exclusive recognition or closed-shop collective con- e' 4 N. L. R. B. 520. 8 4 N. L. R. B. 520. See footnote 52 supra. ° 4 N. L. R. B. 520. 7° As heretofore stated , If the prior proceeding is a representation proceeding, judicial review of the finding subsequently relied upon may be had as part of the review of the proceeding in which reliance was placed. 136 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD tract does not warrant a stay of an investigation and determination of the question concerning representation if the circumstances estab- lish a doubt regarding the status of the contracting union as a freely chosen representative at the time the contract was made. We hold that the determinations, findings, conclusions, and certifi- cation in the Representation Proceedings were not, nor were any of them, invalid, as the respondent and the intervenor contend. Upon those determinations, findings, conclusions, and certification, we find that on March 10, 1938, the bus drivers of the respondent constituted a unit appropriate for the purposes of collective bargaining and that said unit insured to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuated the polices of the Act. We also find that on said date the Brotherhood was designated and selected by a majority of the bus drivers of the -respondent as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, the Brotherhood was the exclusive repre- sentative of all such bus drivers for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. The respondent and the intervenor claim that subsequent to certifi- cation of the Brotherhood, as well as at the time of the hearing, a majority of the respondent's bus drivers were dues-paying members of the intervenor and had designated it their collective bargaining representative. Documentary proof was offered at the hearing, which the Trial Examiner rejected on the grounds of immateriality, for the purpose of showing that in the first week of May 1939 the Amal- gamated, Division No. 1114, increased its membership by approxi- mately 100 bus-driver employees of the respondent and that in consequence thereof the intervenor became the designated represent- ative of a majority of these employees.71 Proof also was offered to show that at the time of the hearing "more than a majority of bus drivers" employed by the respondent were members of the intervenor and designated it their collective bargaining representative. We are of the opinion that the tendered showing was properly excluded from the record. As a determination of exclusive repre- sentation the certificate may be relied upon and is not subject to nullification or challenge by the parties so long as the certified repre- Tl The intervenor in its brief claims that its proffered proof "would have shown that at the time of refusal to bargain it represented . . . a majority of Respondent's bus drivers " As hereinafter set forth the respondent on April 25, 1939, refused previous requests of the Brotherhood for collective bargaining However, the documentary proof offered but rejected would show that between the time of certification and April 30, 1939, a majority of the respondent ' s , bus .driverswere not duds-paying. members oftthe intervenor; that on April X30, 1939, only 190 of the 67R bus idriuers employed rin April were such members. . PACIFIC GREYHOUND LINES 137 sentative is ready and willing to bargain collectively and to establish •contractual relations with the employer in behalf of those repre- sented, and a reasonable period for it to do so has not elapsed. .Stability of industrial relations and effectuation of the purposes and policy of the Act impel a construction of Section 9, (c) which would :secure the authority of the certified representative to act for a rea- sonable period.72 Here only 3 months intervened between the issuance .of the certification and the filing of the complaint and, as found below, at no time did the respondent recognize or bargain collectively with the Brotherhood although repeatedly requested to do so. Thus, not only had a reasonable period for the Brotherhood to act not 'expired at the time the certification was challenged by the respondent, but because of the respondent's unlawful conduct the bus drivers have been thwarted from the very outset in obtaining representation through the agency they selected for that purpose in the election. Under these circumstances, proof of a subsequent designation of a representative by a majority of the respondent's bus drivers, other than the one selected when full freedom of choice was theirs, is immaterial. This evidence does not establish incapacity of the Brotherhood to act either at the time the certification was challenged, at any time since, or in the future until the employees have had a reasonable opportunity to act through the Brotherhood. In the in- 72 In Matter of Whither Mills Company and Silver Lake Company and Textile Workers Organizing Committee, 15 N. L R B 457, the Board held that the employer could not upon the facts presented challenge the force of a certification 7 months after issuance, -saying : To hold that , 7 months following certification by the Board of a collective bargaining representative , the employer can question with impunity the status of the certified representative as a representative of a majority of the employees in the appropriate unit , in the manner the respondents here attempt to do, would be to render such a certification nugatory . The Congress cannot have intended by Section 9 ( c) of the Act to authorize the Board to do a futile and meaningless thing . To prevent employers fiom thus flouting the Act, to give meaning to the Board's authority to certify representatives designated by employees in appro- priate units , to effectuate the policies of the Act, the presumption of the continuing effectiveness of such a certification by the Board must be held not to be rebuttable, under the circumstances here presented , by evidence such as that here introduced by the respondents. In Matte) of Clark Shoe Company and United Shoe Woikeis of America, 17 N L R B. 1079, the Board held upon the facts considered that a certification could not be challenged by the employer 4 months after issuance ' The Board said: The fruition of collective bargaining in an agreement often requires negotiations lasting several months It is therefore essential to the effectuation of the policies of the Act that the representative status , once established , be vested with a degree of stability . Thus, in a recent case , we held that a refusal to bargain with representatives 7 months after their certification by the Board can not be justified by challenging their authority to deal for a-majority No reason appears why a different rule should be applied in the instant case. The authority of the U. S. W. as sole bargaining agent was established in a consent election under the aegis of the Board The fairness of the election is not questioned . Promptly after the election the U. S. W. opened negotiations for a contract . To permit the respondent with impunity to interrupt the bargaining process and evade agreement by chal- lenging the authority of the U. S. W. only 4 months after its designation in the election would be to render meaningless the respondent ' s duty and its employees' correlative right to bargain collectively. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stant case, any other rule would result in employees being required to turn from representative to representative until some bargaining agency satisfactory to the employer was found. Accordingly, we find that at all times since March 10, 1939, the bus drivers of the respondent constituted and constitute a unit ap- propriate for the purposes of collective bargaining and that said unit insured and insures to employees of the respondent full benefit of their right to self-organization and to collective bargaining and other- wise effectuates the policies of the Act. We also find that the Brother- hood, pursuant to the provisions of Section 9 (a) of the Act, was at all times since March 10, 1939, and is the exclusive collective bargaining representative of all bus drivers employed by the respondent, with authority to bargain collectively in their behalf in respect to rates of pay, wages, hours of employment, and other conditions of employment. B. The refusal of the respondent to bargain collectively with the Brotherhood On March 14, 1939, and repeatedly thereafter, the Brotherhood requested the respondent to bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment, with the Brotherhood, as the exclusive representative of all bus drivers employed by the respondent. On April 25, 1939, the respondent through its president, Travis, replied in writing, as follows : Pacific Greyhound Lines is a party to a collective bargaining agreement with the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America. That agree- ment is still in full force and effect. The Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employees has notified me that the Company will be held strictly to the terms of that agreement, and will resort to all available remedies before the National Labor Relations Board, and the courts, to protect and enforce its rights under that agreement, if the Company should depart from it. In addition, careful consideration has been given to the order of the National Labor Relations Board, referred to in your letter of April 24th, and the Company has been advised by counsel that it is erroneous and invalid. In view of the foregoing the Company feels that until such time as the National Labor Relations Board and the courts have decided on the merits of this controversy, that a conference at this time, with your representatives, would be futile. PACIFIC GREYHOUND LINES 139 Although again requested thereafter by the Brotherhood to bargain collectively, the respondent in fact has never done so. The respondent and the intervenor contend that the respondent cannot be found to have refused to bargain collectively with the Brotherhood on and after April 25, 1939, for the reason that the showing herein of the Brotherhood's status as statutory representa- tive of the bus drivers at the time the foregoing requests for bargain- ing were made rests upon invalid determinations, findings, con- clusions, and certification in the Representation Proceedings. We already have considered this reason and in view of what has been stated in that connection hold this contention to be without merit. The respondent and the intervenor further contend that the re- spondent was under no duty to bargain collectively with the Brother- hood because of the contract of April 15, 1938, with the Amal- gamated, Division No. 1114. The argument, in sum, is that if a collective agreement has been made by an employer with a labor organization, not only as the statutory representative of its em- ployees but as a principal to the contract,73 and providing for exclu- sive recognition of the labor organization as collective bargaining representative, for a closed shop in its favor, and for wages, hours of service, and other working conditions, the employees, or certain of the employees, in whose behalf the contract was made cannot under the Act require the employer to bargain collectively with any other collective bargaining representative, nor can such other representative itself do so, pending continuance of the agreement, even though a majority of such employees in an appropriate collec- tive bargaining unit have established their choice of such other bar- gaining representative in proceedings under Section 9 (c). 74 In this connection the respondent and the intervenor also say that the Board has never adjudicated the contract of April 15, 1938, to be invalid. We are of the opinion that the Brotherhood as the certified statu- tory representative under Section 9 (c) was entitled on and after March 10, 1939, to act as the exclusive collective bargaining repre- sentative of the respondent's bus drivers and to require of the re- spondent performance of its duty under Section 8 (5) of the Act. The facts hereinabove set forth, considered in the light of the entire record, establish that the respondent on April 25, 1939, and thereafter, withheld from and refused the Brotherhood recognition as the exclu- 7$ We express no opinion on the matter whether the Amalgamated , Division No. 1114 executed the contract of April 15, 1938, as a principal. 74 Under the view of the respondent and the intervenor the bus drivers in the instant case would be helpless to designate any statutory representative other than the intervenor to bargain for them unless the intervenor or the respondent acquiesced in the choice of a new representative , for it also is contended that the contract of April 15, 1938, may be terminated only upon the giving of notice by the Amalgamated , Division No. 1114, or the respondent, and by no one else. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive collective bargaining representative of the respondent's bus drivers, and refused to meet with the Brotherhood or negotiate with it in any respect whatsoever. We find that by thus withholding from and refusing recognition to the Brotherhood 75 and by so refusing to meet and negotiate with the Brotherhood in any respect whatsoever , '16 the respondent refused to bargain collectively with the Brotherhood, within the meaning of Section 8 (5) of the Act. It is immaterial whether in requesting collective bargaining the Brotherhood may have assumed that the entire contract of April 15, 1938, as regards the respondent's bus drivers, terminated by operation of law upon issu- ance of the certification, or merely that the contract and its terms to the extent inconsistent with representation through the Brotherhood so terminated. Indeed, what position the Brotherhood may have taken on this subject during negotiations is bare speculation.. The respondent having refused outright to recognize or bargain collec- tively with the Brotherhood on any basis, cannot here claim justifica- tion of its refusal to bargain on a supposition concerning the Broth- erhood's intent in such matter. It afforded the Brotherhood no opportunity for a conference where collective bargaining could have proceeded on any proper subject of negotiation, including the con- tinuance of the contract, if a dispute on that subject arose.77 76 See N. L R. B v The Griswold Manufacturing Company, 106 F. (2d) 713 (C. C A. 3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L R. B 298; N L R. B. v The Louisville Refininq Company, 102 F ( 2d) 678 , cert den. 308 U S 568, enf'g as mod. Matter of The Louisville Refining Company and International Association, Oil Field, Gas Well and Refinery Workers of America, 4 N. L R B 844 See also Matter of Mc%aiq-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No 1139, 10 N. L. R. B 33 Cf. National Licorice Company v. N. L R. B, 309 U. S 350, aff'g 104 F. ( 2d) 655 (C. C. A 2), enf'g Matter of National Licorice Company and Bakery and Confectionery Workers International Union of North America, et al., 7 N L R. B 537. Pe See N. L. R. B . v. Carlisle Lumber Company, 94 F. (2d ) 138 (C. A. A 9), cert. den. 304 U. S 576, enf'g Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, at al, 2 N. L. R. B. 248, 99 F. (2d) 533, cert. den 306 U S 646, The Jeffery-DeWitt Insulator Company, a corporation v. N L. R B, 91 F (2d) 134 (C. C. A. 4), cert. den . 302 U S. 731, enf'g Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America , 1 N L. R. B 618. 'i'r If the substantive terms of the contract of April 15, 1938 , continued in force or were treated by the parties during negotiations as continuing in force the respondent would be under duty to bargain collectively with the Brotherhood in respect to any modifications in, or additions to, such terms upon request of the Brotherhood. In N. L R. B. v. The Sands Manufacturing Company, 306 U. S. 332, 342, the Supreme Court said : The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employes to the end that employment contracts binding on both parties should be made. But we assume that the Act imposes upon the employer the further obligation to meet and bargain with his employes ' representatives respecting proposed changes of an existing contract and also to discuss with them its true interpretation, if there is any doubt as to its true meaning. See also N L. R B V. National Licorice Company, 104 F. ( 2d) 655 (C C. A. 2) enf'g as mod. Matter of National Licorice Company and Bakery and Confectionery Workers Inter- national Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537. PACIFIC GREYHOUND LINES 141 The parties engage in extended argument concerning the legal effect of the certification upon the contract of April 15, 1938, and its terms.78 From what has been stated above, it is apparent that, save with respect to the matter whether the contract or any term thereof jus- tified the respondent's outright refusal to bargain collectively with the Brotherhood, a matter already considered, that general question is not here presented. However, the members of the Board partici- pating in this decision entertain divergent views on the extent of the effect of the certification upon the contract here, involved. That of Mr. Smith is stated in his separate concurring opinion. I (Chairman Madden) am of the opinion that upon certification of the Brotherhood as the new statutory representative for the bus drivers, the contract of April 15, 1938, at least in so far as it related to these employees'79 became inoperative as a matter of law.80 I do not think it necessary to pass upon the broader issue of an employer's obligation to bargain collectively, during the existence of an exclusive recognition or closed-shop contract, with representatives other than those recognized in the contract, where the employees have changed their allegiance during the term of the contract and have designated new representatives. For the same reasons for which the Board held that the contract constituted no bar to the Board's elections and cer- tification in the Representation Proceedings, the contract was defeas- ible,•subject to the outcome of the elections there directed. Since the Amalgamated failed to be designated as the statutory representative in the election among the bus drivers, the Brotherhood as the rep- resentative certified by the Board was free on and after March 10, 1939, to enter into collective bargaining with the respondent, or 78 The parties refer to the opinion of the United States Circuit Court of Appeals for the Ninth Circuit in the case of N. L. R. B. v. Pacific Greyhound Lines, Inc., 106 F. ( 2d) 867 (C C. A. 9). In that case the court dismissed a rule entered upon the respondent to show cause why it should not be adjudged in contempt for alleged violation of a decree enforcing an order of the Board under the Act Neither the Brotherhood nor the inter- venor was a party to the court proceeding , nor did the case involve any refusal of the respondent to bargain collectively with the Brotheihood The order of dismissal was made upon a motion of the respondent challenging the legal sufficiency of the petition for a rule We do not believe that the decision there is determinative of the legal effect of the certification upon the contract of April 15, 1938 Moreover, it will be noted that the court in its opinion said (106 F . ( 2d) 871 ), ". . . we would . . purge the contempt upon the commencement by Greyhound before the Board of a proceeding to determine the . . effect thereon [on the contract of April 15 , 1938] of the elections 791t is unnecessary to decide whether or to what extent either the certification of the Brotherhood or the failure of the Amalgamated to establish itself in the election as the statutory representative of the station and clerical employees of the respondent affected the terms of the contract respecting the station and clerical employees. so See my opinion in Matter of Walson-Jones Company and Employees Benevolent Asso- ciataon of Elizabeth, N. J., Inc, 21 N . L R. B 943, where the Board ordered an election pending an outstanding collective agreement made after the filing of a petition for investi- gation and certification of representatives. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD require collective bargaining of the respondent, unfettered by the contract of April 15, 1938, and its terms.81 We find that on April 25, 1939, and thereafter, the respondent, by refusing to recognize the Brotherhood as the exclusive collective bargaining representative of its bus drivers, and by refusing to meet and negotiate with the Brotherhood as such representative, refused to bargain collectively with the Brotherhood, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential to an effectuation of the purposes and policy of the Act that the respondent be ordered to cease and desist from the un- fair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the consequences of such practices, that the respondent be ordered to take certain action more particularly described below. We have found that on March 10, 1939, the Brotherhood was the statutory representative of all the respondent's bus drivers, so certi- fied on that date in due proceedings before the Board and that that labor organization at all times since has continued to be the certified collective bargaining representative of those employees. We also have found that the respondent on April 25, 1939, and thereafter refused to recognize and bargain collectively with the Brotherhood. The record discloses no meritorious ground for the respondent's un- lawful action in withholding recognition from the certified bargain- "This would not mean that statutory collective agreements are impermanent and can be set aside at any time by a majority of the employees initiating proceedings under Sec- tion 9 (c) for a new statutory representative . As heretofore stated, the Board in further- ance of the aim and policy of the Act to attain stabilized labor relations has held that collective contracts validly made , and where no other controlling circumstances such as those here present appear, bars an investigation and certification of representatives. See footnote 57, supra. For a discussion of the nature of collective agreements under the Act, see the opinion of the United States Circuit Court of Appeals for the Fourth Circuit, per Parker, P. J , in N. L. R. B. v. Highland Park Manufacturing Company, 110 F (2d) 632 (C C. A. 4), enrg Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238. PACIFIC GREYHOUND LINES 143 ing representative chosen by these employees in an election under Board supervision, nor is any tenable reason offered for its unlawful action in refusing to bargain collectively with that representative. The stability of industrial relations to which the respondent adverts in its brief will be attained only when and if the respondent ceases its trespass upon the right of its bus drivers to select whatever rep- resentative they believe most able to secure their interests as em- ployees. Accordingly, we shall order the respondent to cease and desist from its unfair labor practices, and in effectuation of that order and the purposes and policy of the Act, to bargain collectively, upon request, with the Brotherhood as the certified bargaining represent- ative of its bus drivers. We also shall order other affirmative action to remedy the situation. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, 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. Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, and Division No. 1114 thereof, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The bus drivers employed by the respondent constituted and constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. Brotherhood of Railroad Trainmen was on March 10, 1939, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of section 9 (a) of the Act: 5. By refusing on April 25, 1939, and thereafter, to bargain col- lectively with the Brotherhood of Railroad Trainmen as the ex- clusive representative of all its bus drivers, the respondent has en- gaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices, and each of them, are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 re- spondent, Pacific Greyhound Lines , San Francisco, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Brotherhood of Rail- road Trainmen as the exclusive representative of all its bus drivers, in respect to rates of pay, wages, hours of employment , and other conditions of employment; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in concerted activities , for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Bargain collectively upon request with Brotherhood of Rail- road Trainmen as the exclusive representative of all bus drivers employed by it, in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment; (b) Post immediately in conspicuous places at its main offices in San Francisco, California, and at all of its terminals and garages, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, ( 1) notices stating that it will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order, and (2) that it will bargain collectively upon request with Brotherhood of Railroad Trainmen as the exclusive representative of all its bus drivers in respect to rates of pay, wages , hours of employ- ment and other conditions of employment; and (c) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from date of this Order, what steps it has taken to comply herewith. MR. EDWIN S . SMITH, concurring : I concur in the findings, conclusions, and order of the Board. In the Representation Proceedings the Board held the contract of April 15, 1938 , to be no bar to an investigation and determination concerning which of the two union claimants, the Brotherhood or the Amalgamated, was the freely chosen bargaining agency of the re- PACIFIC GREYHOUND LINES 145 spondent's bus drivers. The Board directed two elections, one among the bus drivers, the other among the remainder of the employees, following principles analogous to those of the Globe case; 82 in these elections the Amalgamated was repudiated by the remainder of the employees, and the Brotherhood was chosen by a substantial majority of the bus drivers as their statutory representative. Under these circumstances to hold, as the respondent and the intervenor insist, that the Amalgamated can continue to act as the bargaining rep- resentative of the bus drivers because of a collective contract which it made for these employees, would do violence to the intent and policy of the Act and undermine the statutory scheme. The Board properly finds that the Brotherhood was entitled upon certification, to recognition and collective bargaining, irrespective of the contract of April 15, 1938, and that the respondent's refusals in that regard violated the Act. However, as noted by the Chairman, I am not in complete accord with the view which he expresses concerning the legal effect of the certification upon the contract of April 15, 1938, although I concur in the holding of the Board, as above stated, that the contract cannot justify the respondent's conduct disclosed by the record. I am of the opinion that the selection by employees of a new statutory rep- resentative and the certification of that representative in proceedings under Section 9 (c) result merely in the termination by operation of law of the outstanding collective contract or its terms where they conflict with action by the certified representative as representative, and not in a termination of all substantive terms of the contract otherwise valid.83 I believe this to be the legislative intent of Sec- tion 9 (c) as well as Section 9 (a). In the instant case, any grant of recognition in the contract to the Amalgamated, Division No. 1114, as exclusive bargaining representative of the bus drivers, ceased upon certification. Because I am not satisfied that the provision contained in the contract for a closed shop was intended to benefit a successor union representative to the- Amalgamated, Division No. 1114, and since enforced membership of the bus drivers in the Amal- gamated and its division is inconsistent with the Brotherhood repre- senting these employees for collective bargaining, that provision similarly abated on certification.84 Finally, the status of the Amal- 83 Matter of The Globe Machine and Stamping Co and Metal Polishers Union, Local No 3; International Association of Machinists, District No 54, Federal Labor Union 18788, and United Automobile Workers of America, 3 N L R B 294 88 The Board did not in the Representation Pioceedmgs hold the contract invalid, and found that when executed a majority of the employees of the respondent were members of the Amalgamated, Division No. 1114. 84 See my opinion in Matter of Ansley Radio Cat poration and Local 1221 United Electrical & Radio Workers of America, C. 1 0., 18 N L It. B 1028, where I expressed a similar conclusion in a case not involving proceedings under Section 9 (c) 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gamated, Division No. 1114, as a principal to the contract, if it acted as principal as well as representative of employees in executing the contract, and any control which as principal it acquired over the contract and the force thereof including substantiative provisions covering wages, hours of service, and other working conditions terminated to the extent that such status and control pertained to provisions concerning the bus drivers. Such status as principal conflicted with the authority of the Brotherhood under its designa- tion as certified representative to represent these employees for col- lective bargaining. On the other hand, provisions covering wages, hours of service, and other working conditions of these employees continued in force and were binding upon the bus drivers as prin- cipals after certification. This does not mean that there existed no subject for collective bargaining with the Brotherhood. The parties could bargain with respect to abrogation of the contract in this regard or to changes in and additions to the contract. It is immaterial that the contract covered not only bus drivers but also station and clerical employees, for the bus drivers have been found to comprise an appropriate bargaining unit and they have designated a statutory representative. I would not interpret the termination clause of the contract as vesting in the Amalgamated, Division No. 1114, power to determine the continuance of the contract from year to year after the Brother- hood was certified, for were that the intent the clause would be in- valid as being in derogation of the right under Section 9 (a) of a majority of the employees in an appropriate bargaining unit to control matters of collective bargaining for all employees in the unit through a statutory representative. In the Greyhound- contempt case the Circuit Court of Appeals was of the opinion that the Brotherhood would be entitled to exercise the power of termination in behalf of the employees. MR. WILLIAM M. LFSSERSON took no part in the consideration of the above Decision and Order. 85 N. L. R. B. v. Pacific Greyhound Linea, Inc., 106 F. (2d) 867 (C. C. A. 9).