South Texas Coaches, Inc.

In the Matter of SOUTH TEXAS COACHES, INC., NORTH TEXAS COACH COMPANY, A CORPORATION , ROBERSON Bus LINES, INC., WICHITA FALLS Bus COMPANY, A CORPORATION , FORT WORTH-CORSICANA- MEXIA COACHES , INC., R . C. BOWEN, TRUSTEE, BOWEN MOTOR COACHES, A CORPORATION , AND R . C. BOWEN, INDIVIDUALLY, and BROTHERHOOD OF RAILROAD TRAINMEN AND AMALGAMATED ASSOCIA- TION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION No. 1142, PARTY TO THE CONTRACT In the Matter of SOUTH TEXAS COACHES, INC., NORTH TEXAS COACH COMPANY, A CORPORATION, ROBERSON Bus LINES , INC., WICHITA FALLS Bus COMPANY, A CORPORATION , FORT WORTH-CORSICANA- MEXIA COACHES, INC., R . C. BOWEN, TRUSTEE, BOWEN MOTOR COACHES, A CORPORATION , AND R . C. BOWEN, INDIVIDUALLY, and BROTHERHOOD OF RAILROAD TRAINMEN Cases Nos. C-1385 and R-1373, respectively.-Decided March 30,1940 Motor Bus Transportation Industry-Interference , Restraint, and Coercion: anti-union statements ; company-favored union : indicating preference for one union rather than another ; encouraging employees to join; permitting organizing on company property ; recognition of, while refusing recognition to rival under similar circumstances ; executing contract with-Remedial Order: employer ordered to withdraw recognition from, unless and until certified by the Board, and to cease enforcing or attempting to enforce contract with favored labor organization ; (Leiserson , dissenting ) under circumstances of case contracts should not be set aside-Company-Dominated Union: charges of, not sustained-Discrimination : charges of, not sustained-Collective Bargain- inq: charges of refusal , not sustained-Investigation of Representatives: con- troversy concerning representation of employees : controversy concerning unit; contracts with favored labor organization , no bar to-Unit Appropriate for Collective Bargaining : considerations evenly balanced ; desire of employees de- cisive; determination of dependent upon results of elections-Elections Ordered: to be conducted when circumstances permit free choice of representatives unaffected by unfair labor practices. Mr. A. B. Martin and Mr. E. P. Davis, for the Board. Mueller di Mueller, by Mr. Karl H. Mueller and Mr. T. S. Ch,risto- pTzer, of Fort Worth, Tex., for the respondents. Mr. TV. P. Nutter, of Kansas City, Mo., Mr. J. T. Ch,oyce of Hous- ton, Tex., and Mr. L. A. Fennell, of Dallas, Tex., for the Brotherhood. Dwvall & Green, by Homer B. Green, of Fort Worth, Tex.; for the Amalgamated. Mr. Emanuel Butter, of counsel to the Board. 22 N. L. R. B., No. 23. 502 SOUTH TEXAS COACHES, INC. DECISION ORDER AND DIRECTION OF ELECTIONS 503 STATEMENT OF THE CASE Upon charges and amended charges 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 Sixteenth Region (Fort Worth, Texas) issued its complaint dated March 17, 1938, an amended complaint' dated December 5, 1938, and an amended complaint dated April 12, 1939, against South Texas Coaches, Inc., herein called the South Texas,, North Texas Coach Company, a Corporation, herein called the North Texas, Roberson Bus Lines; Inc., herein called the Roberson Lines,, Wichita Falls Bus Company, a Corporation, herein called the Wichita Falls, Fort Worth-Corsicana Mexia Coaches, Inc., herein called the Fort Worth, R. C. Bowen, Trustee, herein called Bowen, Trustee, Bowen Motor Coaches, a Corporation, herein called Bowen Motor, and R. C. Bowen, Individually, herein called Bowen, and herein collectively called the respondents, all of Fort Worth, Texas, alleging that' the said respondents had engaged in unfair--labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The amended complaint accompanied by notice of hearing thereon was duly served upon the respondents, the Brotherhood, and upon Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Division No. 1142, herein called the Amalgamated, a labor organization, party to a contract with the respondents. A motion by the Amalgamated to intervene in the proceedings was granted by the Regional Director. The amended do'rhplaint alleged, in substance, that the respondents South Texas, North Texas, Roberson Lines, Wichita Falls, and Fort Worth, prior to January 1, 1938, were operated under the direction and control of respondent Bowen, president of all the respondent corporations and virtually their sole stockholder, as an integrated bus-transportation system under the trade name of Bowen Motor Coaches; that on January 1, 1938, respondents South Texas, North Texas, Roberson Lines, and Wichita Falls were consolidated to form 'The original complaint and the first amended complaint named as recnondents Bo en Motor Coaches and Fort Worth -Corsicana-Mexia Coaches , Inc., only 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent Bowen Motor, a newly formed corporation; that on January 9 , 1939, respondent Fort Worth was merged with Bowen Motor and the Fort Worth was dissolved ; that since the consolida- tion and merger , respondent Bowen Motor has continuously engaged in the transportation for hire of passengers and property by motor buses, operating the lures and property theretofore owned and operated by respondents South Texas, North Texas, Roberson Lines, Wichita Falls, and Fort Worth. With respect to the unfair labor practices , the amended complaint alleged, in substance , that ( 1) on or about June 8, 1937, the re- spgiidents South Texas, North Texas, Roberson Lines, Wichita Falls, Fort Worth, Bowen, Trustee, and Bowen , sponsored, fostered, and encouraged membership in a labor organization of their employees known as Bowen Employees' Union, herein called the B. E. U.; (2) on or about August 5, 1937 , respondents South Texas and Bowen demoted Lee Wooding from a position as a bus operator to that of mechanic's helper and thereafter the respondents South Texas, Bowen Motor, and Bowen refused to reinstate Wooding to his former position, for the reason that he joined and assisted the Brotherhood; (3) on or about May 30, 1937 , and at all times thereafter , the re- spondents refused to bargain collectively with the Brotherhood as representative of the respondents ' employees in an appropriate unit for the purpo' ses of collective bargaining consisting of their bus operators ; and'(4 ) by the above acts, by causing the dissolution of the B. E. U. on or about June 11, 1937 , and thereafter sponsoring the Amalgamated , by entering into collective bargaining contracts with the Amalgamated as the exclusive representative of the re- spondents ' employees , by encouraging membership in the Amalga- mated and discouraging membership in the Brotherhood, and by other acts, the respondents interfered with, restrained , and coerced their employees in the exercise of their rights guaranteed in Section 7 of the Act. The respondents thereafter filed their answers to the amended complaint denying the material allegations thereof concerning the unfair ' labor" practices . With the exception of respondent Bowen Motor, the respondent corporations also allege in their answer that each has been dissolved by law and since such dissolution has not transacted or conducted any business .2 The answer of Bowen denied that he, either as Trustee or individually , is or was the employer of any of the employees of the respondent corporations . The Amalga- mated also filed an answer. 2 With respect to the dissolved coiporations the answer was filed by Temple Bowen, "former director acting for himself as such and for and on behalf of the directors of each of said respondents " SOUTH TEXAS COACHES, INC. 505 On January 24, 1938, March 19, 1938, and April 4, 1939, respec- tively, the Brotherhood filed with the Regional Director a petition and amended petitions, alleging that a question affecting commerce had arisen concerning the representation of employees of the re- spondents and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On January 28, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the Regional Direc- tor to conduct an investigation and to provide for an appropriate hearing upon due notice and, pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regula- tions, ordered the representation proceeding and the complaint pro- ceeding consolidated for purposes of hearing and that one record of the hearing be made. On March 22 and April 12, 1938, amended orders of consolidation were issued by the Board. Pursuant to notice duly served upon all parties, a hearing was held in Fort Forth, Texas, from April 20 to May 6, 1939, before James C. Batten, the Trial Examiner duly designated by the Board. The Board, the respondents, and the Amalgamated were represented by counsel; the Brotherhood by its representatives. All participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, the Amalgamated moved for leave to intervene in the representation and in the complaint proceedings. The Trial Examiner granted this notion. At the close of the Board's case, the Trial Examiner granted the respondents' motion to dismiss that portion of the complaint which alleged that the re- spondents South Texas, North Texas, Roberson Lines, Wichita Falls, Fort Worth, Bowen, Trustee, and Bowen had sponsored, fostered, and encouraged membership in the B. E. U. For the reasons stated below, in Section III, B, the ruling is hereby affirmed. At the close of the Board's case, motions by the respondents Bowen, Trustee, and Bowen to dismiss the complaint as to them were granted by the Trial Examiner. At the close of the Board's case and at the conclusion of the entire case the respondents and the Amalgamated moved to dismiss the entire complaint. These mo= tions were denied by the Trial Examiner. During the hearing and in his Intermediate Report thereafter filed, the Trial Examiner made a number of other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to consent of all parties and instructions of the Trial Examiner, the deposition of one witness, Jack Curry, was taken on May 8, 1939. The deposition is hereby made part of the record of these proceedings. On October 6, 1939, the Trial Examiner filed his Intermediate Report, • copies-of which. were duly, served upon the parties. In his Intermediate Report, the Trial Examiner granted a motion of the respondents to dismiss that portion of the complaint which alleged that Lee Wooding was demoted because of union activities. For the reasons set forth below, in Section III, C, the ruling of the Trial Examiner is hereby affirmed. The Trial Examiner, in his Inter- mediate Report, further found that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. On November 4 and 6, 1939, respectively, exceptions to the Inter- mediate Report were filed by the respondent Bowen Motor, the Brotherhood, and the Amalgamated. Pursuant to leave granted by'the' Board,'briefs were also filed by the respondent Bowen Motor and the Amalgamated on November 7 and 8, 1939, respectively. On December 12, 1939, pursuant to request therefor by the respond- ents and notice thereof to all parties, a hearing was had before the Board in Washington, D. C., for the purpose of oral argument. Counsel for the respondents and a representative of the Brother- hood appeared and participated therein. The Board has considered the exceptions to the Intermediate Report and, except as they are consistent with the findings, con- clusions, and order set forth below, finds no merit in them. Upon the entire record in this consolidated proceeding, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The respondents South Texas Coaches, Inc., North Texas Coach Company, a Corporation, Roberson Bus Lines, Inc., and Wichita Falls Bus Company, a Corporation, prior to December 31, 1937, and Fort Worth-Corsicana-Mexia Coaches, Inc., prior to January 9, 1939, were Texas corporations having their principal offices in Fort Worth, Texas. The respondent R. C. Bowen, prior to May 1, 1937, and thereafter, was president of all the respondent corporations and the owner of virtually all the capital stock thereof. The respondent R. C. Bowen, Trustee, held in trust for the South Texas certain certificates of convenience and necessity as well as certain stocks of the other respondent corporations. SOUTH TEXAS COACHES, INC. 507 Prior to January 1, 1938, the respondents South Texas, North Texas, Roberson Lines, Wichita Falls, and Fort Worth were en- gaged in the motor-bus industry in the State of Texas, transporting for hire persons and property to and from the cities of Amarillo, Wichita Falls, Fort Worth, Dallas, Houston, Austin, Victoria, Corpus Christi, San Antonio, San Angelo and intermediate points, as an integrated bus-transportation system, using the trade names "Bowen," "a Bowen line," and "Bowen Motor Coaches." The corporations coordinated their services with respect to schedules and interchange of passengers and occasionally exchanged their employees and buses. The offices of said corporations were situated in the same building in the city of Fort Worth, Texas. On May 1, 1937, South Texas, North Texas, Roberson Lutes, Wichita Falls, and Bowen, Trustee, filed with the Interstate Com- merce Commission an application, under Section 213 of the United States Motor Carrier Act, to consolidate the properties of said cor- porations into a new Texas corporation to be organized and known as Bowen Motor Coaches, a Corporation. Pursuant to proceedings thereafter had before the Secretary of State of the State of Texas and pursuant to order of the Interstate Commerce Commission 3 such a consolidation was affected on December 31, 1937, and South Texas, North Texas, Roberson Lines, and Wichita Falls were dis- solved as of that date. On the same date, the respondent Bowen Motor was organized as a Texas corporation.' On January 9, 1939, the respondent Fort Worth was merged with the respondent Bowen Motor and the former was duly dissolved by the filing of an application for dissolution with the Secretary of State of the State of Texas. The respondent Bowen Motor ac- quired the property of the respondent Fort Worth. When the respondent Bowen Motor began its operations, it em- ployed the bus operators, mechanics, maintenance and service em- ployees, and clerical staff theretofore employed by the respondents South Texas, North Texas, Roberson Lines, and Wichita Falls, and conducted its motor-bus operations on the same routes theretofore followed by the dissolved corporations. s The recommendation and report of the Interstate Commerce Commission upon which its order was based, stated, inter alia, as follows : It is proposed to eliminate the expense incident to the maintenance of separate corporate organizations by transferring the assets of the consolidating companies to the proposed new corporation , Bowen Motor Coaches , which will also assume their liabilities , cancelling their outstanding stock , dissolving them , and issuing stock in the new corporation to replace stock in the old companies 4 The respondent Bowen Motor filed with the Secretary of State of the State of Texas an accompanying affidavit to its charter , which in substance recited that the transfer of the properties of the dissolved corporations w as effected in accordance with the Interstate Commerce Commission order. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent Bowen owns all the capital stock of the respondent Bowen Motor with the exception of two qualifying shares. The dissolved respondent corporations maintained, and the re- spondent Bowen Motor maintains, regular connections for the ex- change of passengers with other bus companies engaged in inter- state transportation and operates privately chartered buses from points in Texas to points in other States. Bowen Motor maintains approximately the same connections with interstate bus companies as were formerly maintained by the other respondent corporations. During the year 1938 the respondent Bowen Motor operated its buses a total of 7,296,245 miles transporting 1,116,557 passengers.5 Approximately 7 or 8 per cent of the passengers transported by the respondent Bowen Motor were moving in interstate commerce. The respondents were and are subject to the United States Motor Carrier Act of 1935.6 We find that the respondents are engaged in traffic, commerce, and transportation among the several States and that its bus operators, mechanics, shop and service employees, and dispatchers are directly engaged in such traffic, commerce, and transportation. II. THE ORGANIZATIONS INVOLVED Brotherhood of Railroad Trainmen is a labor organization ad- mitting to its membership bus operators employed by the respondents. Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Division No. 1142, is a labor organ- ization,' affiliated with the American Federation of Labor, admitting to its membership the respondents' bus operators, mechanics, shop and service employees, and dispatchers. Bowen Employees' Union was a labor organization admitting to its membership bus operators employed by the respondents. III. THE UNFAIR LABOR PRACTICES A. Chronology of events; interference, restraint, and coercion On May 20, 1937, the Brotherhood began a membership campaign among the respondents' bus operators. Immediately upon the start of the Brotherhood's organizing, three of the respondents' employees, J. R. Rainbolt, Hale, and McGinnis began to organize the B. E. U. 6 These figures include bus miles operated and passengers transported in December 1938 on routes then belonging to the Fort worth For the first 11 months of 1938, the Fort worth operated 158,520 bus miles and transported 18,218 passengers. 9 The application of the respondent corporations to the Interstate Commerce Commission to effect the above-mentioned consolidations sets forth , inter alga, the following : All of the applicants herein are engaged in transportation by motor carrier in interstate or foreign commerce and have been so engaged since long prior to June 1, 1935 SOUTH TEXAS COACHES, INC. 509 and solicited applications for membership therein. Rainbolt and Hale devoted their full time to this work, taking leaves of absence from the respondent's employ without pay. On May 30, by which time 70 of the respondents' 95 bus operators had applied for membership in the Brotherhood and authorized it to represent them for the purposes of collective bargaining, L. A. Fennell, J. T. Choyce, and Robinson, Brotherhood organizers, re- quested Bowen to check the authorizations and sign a letter recog- nizing the Brotherhood as the sole collective bargaining representa- tive of the respondents' bus operators. Bowen stated that he would communicate with the Brotherhood after consulting his lawyers, as he could not comply with the Brotherhood's requests until he had consulted them. According to the testimony of Fennell and Choyce, Bowen also stated, at this conference, that "I can't sleep myself just to think my boys would . . . turn their backs against me when I have done so much for them . . . I have bought shoes for those boys, those chil- dren, I've paid their doctor bills and hospital bills . . ."; that he was confused and was unable to determine what to do; and that "I see by one of the letters you put out you got $14,000,000, that is enough money to break anybody." Bowen at the hearing denied having made the first two of these statements. We find it unnecessary to resolve this conflict in the evidence. Bowen's statement regarding the $14,000,000 undenied by him, and which we find he made, is suf- ficient to indicate his attitude of opposition to the Brotherhood. On June 2 Bowen wrote a letter to the Brotherhood, quoting sev- eral sections of the Act and stating, inter alia: It occurs to me that before I can safely negotiate, the follow- ing things must be determined : (a) It should be determined whether Bowen Motor Coaches come within the provisions of the Wagner Act, (b) The Labor Board should determine and announce the unit appropriate for bargaining purposes, and (c) I must be furnished satisfactory evidence that you have been lawfully designated and selected by the majority of an ap- propriate unit to represent such unit in the matter of collective bargaining, in respect to rates of pay, wages, hours of employ- ment or other conditions of employment. I shall be glad to talk with you gentlemen at any time but not for the purpose of negotiating with you until the preliminaries above referred to have been definitely and lawfully determined. At about this time, Rainbolt and Hale, on behalf of the B. E. U., retained an attorney, Joe Spurlock, who, on June 7, wrote to Bowen advising him that the B. E. U. represented a majority of the re- 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents' bus operators and requesting recognition as the sole col- lective bargaining agency for the bus operators. On June 10 Bowen replied to Spurlock by a letter similar to the one he had written to the Brotherhood on June 2, 1937. At the hearing, Rainbolt admitted that the B. E. U. at no time represented a majority of the respondents' bus operators and that Spurlock's majority claim of June 7 was merely "a bluff." The or- ganization of the B. E. U. was never perfected and shortly after re- questing recognition of the respondents went out of existence. On or about June 10, 1937, Robertson, an Amalgamated organ- izer, enrolled Rainbolt and Hale as Amalgamated members. They then became organizers for the Amalgamated, on leaves of absence from the respondents' employ without pay. On June 16 the Amal- gamated local was chartered and Rainbolt shortly thereafter became its president. During July and August, Rainbolt and Hale circu- lated among the Brotherhood members membership withdrawal blanks and procured the withdrawal of 60 members therefrom. On or about July 15, the Amalgamated presented to Bowen pe- titions signed by 94 of the respondents' approximately 164 bus oper- ators, mechanics, service and shop employees, and dispatchers, desig- nating the Amalgamated as their collective bargaining representa- tive. Bowen, after checking the signatures on the petitions, advised the Amalgamated that he would grant it recognition. On August 17, 1937, an agreement providing for recognition of the Amalgamated as exclusive representative of the respondents' bus operators, me- chanics, service employees, and dispatchers, was entered into be- tween the respondent corporations and the Amalgamated. At that time, the Amalgamated claimed to represent 55, a majority, of the respondents' bus operators, and 40, a majority, of the respondents' mechanics and dispatchers. A supplemental contract renewable from year to year in the absence of notice of cancellation, was entered into between the respondents and the Amalgamated on February 16, 1938. Bowen testified that when he granted the Amalgamated exclusive recognition, he did not inquire whether the Brotherhood was still or- ganizing the respondents' bus operators. He also testified that the Amalgamated had "raised the issue that regardless of whichever was the appropriate unit, they had both mechanics and drivers, and they was it, because they were, so that regardless of how it was defined, they were it," and that he had discussed the question of appropriate unit with his attorneys and then entered into the contract with the Amalgamated because, since it represented both the respondents' bus operators and the mechanics, "the law compelled [him] to do that." It thus. appears that the respondents granted the Amalgamated recognition as the exclusive collective bargaining representative of SOUTH TEXAS COACHES, INC. 511; their employees in a unit claiiiied by the Amalgamated to be ap- propriate although, because of their expressed doubts as to the applicability of the Act to the respondents, the question of appro- priate unit, and the question of proof of majority representation, they had but a few weeks earlier refused to recognize the Brother- hood and such refusal had, prior to the respondents' recognition of the Amalgamated, resulted in the Brotherhood's filing charges herein, alleging, inter alia, a violation. by the respondents of Section- 8 (5) of the Act. By other acts, also, the respondents indicated to their employees their preference for the Amalgamated rather than the Brotherhood. F. J. Woodring, one of respondents' bus operators, testified that in June or July 1937, George Willis, a, South Texas division superizi- tendent, said to him, in reply to Woodring's statement that he was unable to decide whether or not to resign from the Brotherhood, "You'd just as well go ahead and join the Amalgamated because Mr. Bowen is not going to accept the B. of R. T." Although Willis denied making this statement, we believe Woodring's testimony as being in accord with Bowen's actions in the mai ter, and find that Willis made the statement attributed to him. F. E. Riley, another of the respondents' bus operators, testified that in July 1937 while seated in one of the respondents' buses, William M. Rush, another bus operator, in Willis' presence, urged him to join the Amalgamated, and told him that if he did so, approximately 25 or 30 other bus operators would do likewise. Ac- cording to Riley, Rush then asked Willis to affirm this statement and Willis said that Rush's statement was true. While, at the hearing, Rush denied making such a statement to Riley, Willis did not deny the incident but testified that he did not remember it but that he "might have said that . . . if I was on the bus . . . not thinking what I was saying . . ." In view of Willis' failure to controvert Riley's testimony, we find that Willis did encourage Riley's joining the Amalgamated. A. J. Owens, a bus operator no longer in the respondents' employ at the time of the hearing, who, prior to his leaving the respondents' service was an Amalgamated member, testified that at the close of a safety meeting attended by 12 or 14 bus operators in the respond- ents' garage at Wichita Falls, Texas, Merrell, the Wichita Falls division superintendent who had conducted the meeting, told those present that Rainbolt desired to address them. Rainbolt was then on leave of absence from his duties with the respondent, organizing for the Amalgamated. According to Owens, Rainbolt then came in to the meeting, as Merrell left, and sought to enroll the operators in the Amalgamated. Merrell, at the hearing, denied having advised the men that Rainbolt wished to talk to them. He admitted, how- 5512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, that he had seen Rainbolt, who was not a bus operator in Merrell's division, in, Wichita Falls at the time. Rainbolt denied that Merrell had given him permission to speak at the meeting but admitted speaking there and at other meetings of the respondents' bus operators, all of which were held, as was the Wichita Falls meeting, on the respondents' property. It is clear that the respond- ents knew that Rainbolt was engaged in Amalgamated organizational activities. It is also clear that the respondents at least tacitly per- mitted Rainbolt to engage in such activities on their property and at meetings of their employees called for the respondents' purposes. Owens also testified that on September 15, 1937, Merrell had stated to him, that while he [Merrell] had no right to advise him, Bowen would not deal with the Brotherhood and that it would be best for Owens to join the Amalgamated. While Merrell denied making such a statement to Owens, we accept as true Owens' testimony since it is consistent with the respondents' prior acts of granting exclu- sive recognition to the Amalgamated while refusing such recognition to the Brotherhood in the absence of Board certification. We find that the respondents, by (1) granting exclusive recogni- tion to the Amalgamated while refusing such recognition to the Brotherhood in the absence of determination of questions of ap- plicability of the Act to the respondents, appropriate unit, and ma- jority representation and in face of pending charges of the respond- ents' violation of Section 8 (5) of the Act; (2) granting organiza- tional facilities to the Amalgamated while discouraging membership in the Brotherhood; and (3) the statements of its supervisory em- ployees, set forth above, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the contract between the respondents and the Amalgamated, entered into on August 17, 1937, and the sup- plemental contract entered into on February 16, 1938, were not the result of collective bargaining between the respondents and the freely designated representatives of their employees, but were executed by the respondents to discourage membership in the Brotherhood and encourage membership in the Amalgamated, and that the respond- ents, by entering into said contracts, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondents' conduct described above tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. SOUTH TEXAS COACHES, INC. 513 B. The respondents ' alleged , domination of the B. E. U. That portion of the amended complaint which alleges that the respondents sponsored , fostered, and encouraged membership in the B. E. U. was , upon motion of the respondents and the Amalgamated, dismissed by the Trial Examiner at the hearing. The Brotherhood has excepted to such dismissal. We have, in Section III, A , above, discussed substantially all the evidence introduced at the hearing concerning the organization of the B. E. U. Twenty-six of the respondents' bus operators, in the period from May 26 to June 9, 1937 , signed applications for membership in the B. E. U. No initiation fees or dues therein were ever collected, no constitution or bylaws were adopted, and no meetings were ever held. With the exception of obtaining membership applications and hav- ing Spurlock send a letter to Bowen demanding recognition, there was no activity on the part of the B. E. U. When, on or about June 10, Rainbolt and Hale joined the Amalgamated , all the other B. E. U. members did likewise and the B. E. U. thereupon went out of existence . There is no evidence establishing any connection be- tween the respondents and the organization of the B. E. U. Under these circumstances , we do not find that the respondents sponsored, fostered, or encouraged membership in the B. E. U. C. The alleged discriminatory demotion The amended complaint alleges that on or about August 5, 1937, the respondents demoted and transferred Lee Wooding, a bus op- erator, to a position as mechanic's helper, and thereafter refused to reinstate him to his former position, for the reason that he joined and assisted the Brotherhood. The Trial Examiner, in his Inter- mediate Report, dismissed that portion of the amended complaint and the Brotherhood has excepted to the dismissal. On August 1, 1937, Wooding left Houston at 1:15 a. in. driving a bus with passengers on the Houston-Corpus Christi run. Approxi- mately 20 miles outside of Houston, the bus motor caught fire, resulting in approximately $600 damage thereto. On August 8, after the re- spondents had investigated the cause and extent of the damage, they demoted Wooding to a position as mechanic 's helper. At the hearing Wooding testified that he had noticed that the bus motor was not running smoothly but that he did not stop the bus immediately, intending to coast into the next town, which was but a short distance away. While coasting, Wooding was advised by a passing truck driver that the rear end of the bus, where the motor was located , was on fire. The respondents claim that Wooding's fail- ure to stop the bus as soon as he noticed the motor trouble caused the, fire. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wooding extinguished the fire. There is a conflict in the evidence as to whether he thereafter poured cold water onto the hot motor, causing its cylinder block to crack beyond repair and thus creating further damage . There is also a conflict as to whether it signal, in- tended to warn the bus driver of the overheating of the motor, was in working condition at the time of the fire . We do not find it necessary to resolve these conflicts since it appears that, after a thorough investi- gation of the accident , the respondents concluded that the excessive damage, if not the fire itself, was due to Woodmg's negligence and, after first deciding to lay off Wooding , demoted him to a shop posi- tion temporarily ,, until "he has proper knowledge of our equipment to successfully operate same correctly and without abuse." 7 Wooding had joined the Brotherhood on May 21, 1937 , and was elected "past president ," convention delegate, and inner doorman. He wore a Brotherhood button at all tinges after becoming a member. While the respondents ' motive in demoting Wooding is not entirely free from doubt, the evidence as a whole does not convince us that Wooding was discrimnatorily demoted or thereafter refused rein- statement because of his union membership or activity . We find that the respondents did not discriminatorily demote or refuse reinstate- ment to Wooding to discourage membership in the Brotherhood or in any other labor organization. D. The alleged refusal to bargain collectively As stated in Section III, A, above, on May 30, 1937, the Brotherhood requested of the respondents recognition as the exclusive collective bargaining representative of the respondents' bus operators. At that time, the Brotherhood represented 70 of the respondents' 95 bus oper- ators and offered in proof of this to present written authorizations to the respondents upon their agreeing in writing to grant exclusive recognition upon such proof being made. The respondents, however, before checking the authorizations, sought the advice of counsel and thereafter advised the Brotherhood that they would not negotiate with it,until•.the questions of jurisdiction, appropriate unit, and majority representation were determined by the Board. The Brotherhood did not thereafter seek to negotiate with the respondents. In these facts we do not find a refusal to bargain collectively, within the meaning of the Act. 7 Between August S. 10 17. the date of his demotion, and the date of the hearing herein, Wooding spent approximatel y half of his time opetating the respondents' buses on tem- porary assignment, At the oral argument before the Board, counsel for the respondents stated and it was not denied by the Brotheihood representative who s as present, that on July 4. 19;9 Wooding as remifated by the respondents to his formes position as a bus operator. SOUTH TEXAS COACHES, INC. IV. THE REMEDY 515 All the respondent corporations except the respondent Bowen Motor are now dissolved. The respondent Bowen Motor succeeded to all the property, equipment, and other assets of the other respond- ent corporations and assumed, with notice of this proceeding, all their obligations and indebtedness. The ownership, management, business operations, physical equipment, and employees of the dis- solved respondent corporations, upon the afore-mentioned consolida- tion and merger," became the ownership, management, business operations, physical equipment, and employees of Bowen Motor. We find that the respondent Bowen Motor is the successor of the dissolved respondent corporations and that as such successor it stands in the place of its predecessors for the purposes of this pro- ceeding. A charge was filed against the respondent Bowen Motor; it was made a party to the proceeding; and it appeared at the hear- ing and defended. We may, therefore, issue an order directly against the respondent Bowen Motor. Having found that the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall order the respondent Bowen Motor to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that the respondents aided, encouraged, and as- sisted the Amalgamated by unfair labor practices. In order to restore the status quo and to permit the employees full freedom in self-organization, without hindrance by reason of the respondents' unfair labor practices, we shall order the respondent Bowen Motor to withdraw recognition from the Amalgamated as the exclusive repre- sentative of the respondent's employees for the purposes of collective bargaining, unless and until the Amalgamated shall have been certi- fied as such by the Board.9 In addition, we have found that the contract and supplemental contract granted to the Amalgamated by the respondents were part of the respondents' unlawful campaign of encouraging membership in and rendering assistance to the Amalgamated, while discouraging membership in the Brotherhood. We shall order the respondent Bowen Motor to cease and desist from enforcing or attempting to enforce the contract entered into on August 17, 1937, and the sup- plemental contract entered into on February 16, 1938, as well as any S See Section 1, above. 0See Monticello Manufact wwig Corporation and Steel Work ers Oiganiz:ng Committee, No 2085 Affiliated pith the Committee for Induvtrial Orq[umizatlon, 17 N L R B 1091; Matter of Mt Vernon Cap Manufactumiq Cmmpt,n0. a emporatmon, and Local Lodge No 156. Amalgamated Association of Iron, Steel and Tin Woml.eis of North America, etc, 11 N L. R B 500 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extension, renewal, modification, or supplement thereof, and any superseding contract which may now be in force, without prejudice, however, to the assertion by the employees of any legal rights they may have acquired under such contracts.'° Since we have found that the respondents did not discriminatorily demote or refuse reinstatement to Wooding, did not sponsor, foster, or encourage membership in the B. E. U., and did not refuse to bargain collectively with the Brotherhood, we shall dismiss those portions of the complaint which allege that the respondents engaged in said unfair labor practices. - V. THE QUESTION CONCERNING REPRESENTATION The Brotherhood claims that it represents a majority of the re- spondents' employees in an appropriate unit consisting of the re- spondents' bus operators. The Amalgamated claims that it repre- sents a majority of the respondents' bus operators, mechanics, shop and service employees, and dispatchers. As stated above, in 1937, when the Brotherhood sought from the respondents exclusive recognition for the purposes of collective bar- gaining, it was refused such recognition until the questions of juris- diction, appropriate unit, and majority representation were deter- mined by the Board. Thereafter the respondents entered into an agreement with the Amalgamated as the exclusive collective bargain- ing representative of the respondents' employees in a unit different from that claimed by the Brotherhood to be appropriate. We have found above that the respondents, by entering into that contract and into the supplemental contract of February 16, 1938, engaged in an unfair labor practice. We find that neither the original nor the supplemental contract operates as a bar to a determination of representatives for the purposes of collective bargaining. We find that a question has arisen concerning representation of the employees of Bowen Motor 11 and that such question tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE APPROPRIATE UNIT The Brotherhood contends that the bus operators employed by the respondents constitute an appropriate unit. The Amalgamated 10 See National Licorice Co v. N L. R B, 309 U S 350, affirming as modified 104 F (2d) 655 (C C A 2), enforcing as modified Matter of National Licorice Company and Bakery and Confectionei y Workers International Union of America, Local Union 1,05, Caeater New York and Vicinity, 7 N I, R B 547. 11 See Section IV, above SOUTH TEXAS COACHES, INC. 517 claims that the appropriate unit consists of the bus operators plus the mechanics, shop and service employees , and dispatchers 12 Bowen Motor employs 99 bus operators, 4 or 5 student operators, 34 mechanics , 8 greasers, 13 porters, 2 painters , 7 carpenters, and 28 clerical employees. Bowen Motor operates its bus lines in five divisions . In each there is a superintendent in charge of the shop employees. Bowen Motor's main repair shop is located at Dallas and it maintains other shops at Houston , Austin, Fort Worth, Wichita Falls, and Amarillo, Texas. In these shops, under the direction of divisional superin- tendents who hire and discharge employees , the respondents' me- chanics, greasers, washers, painters , carpenters , metal workers, and helpers work. Approximately 15 or 20 mechanics at times operate buses in emergencies and on temporary assignments. The Brotherhood contends that the bus operators , who work under the direction of a general superintendent , form a distinct and separate craft and constitute , therefore, an appropriate unit for the purposes of collective bargaining . In support of this contention , a witness for the Brotherhood testified to a number of considerations which differentiate bus operators from other employees, to wit: bus oper- ators are paid by the mile rather than by the hour; their duties re- quire them periodically to be away from their homes; they receive specialized training as to tariffs and state and federal regulations; they are required to undergo physical examinations which are not required of other employees ; they maintain logs under Interstate Commerce Commission regulations ; and they are required to be licensed by the State of Texas. A Brotherhood witness also testified concerning a number of contracts entered into by various bus com- panies and the Brotherhood in which bus operators were treated as constituting an appropriate bargaining unit. The Amalgamated, at the hearing, introduced evidence to show that bus operators are part of an integrated organization ; that as between the bus operators and the other employees there exists interdepend- ence and functional coherence ; that mechanics are promoted and advanced to positions as bus operators ; that bus operators depend upon the maintenance employees for repair of the busses ; and that it is the desire of the bus operators , mechanics , and service and shop employees to be part of one bargaining unit. It thus appears that the bus operators can be considered either as a separate unit, as claimed by the Brotherhood , or as part of a larger unit composed of bus operators, mechanics, shop and service employees, and dispatchers . Where the considerations in deterniin- 1' In the stipulation entered into at the bearing setting forth present employees, tl ere is no mention of dispatchers. 283033-41-v ol. 22-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing this question are so evenly balanced, the decisive factor is the desire of the employees themselves.'; As we find in Section VII, be- low, that elections by secret ballot are necessary to determine the question which has arisen concerning representation, we shall direct that elections be held among (1) the bus operators employed by Bowen Motor to determine whether they wish to be represented by the Brotherhood, theAmalgamated, or neither, and (2) the mechanics, shop and service employees, and dispatchers employed by Bowen Motor, to determine whether they wish to be represented by the Amalgamated. Upon the results of this election will depend deter- mination of the unit appropriate for the purposes of collective bar- gaining. If a majority of the bus operators choose the Brotherhood, such group will constitute a separate and distinct appropriate unit. If a'majority of the employees in each of the groups select the Amal- gainated, such groups together will constitute a single appropriate unit. VII. THE DETERMINATION OF REPRESEN TATIVES When, on May 30, 1937, the Brotherhood sought recognition as the exclusive bargaining representative of the respondents' bus oper- ators, it represented, on the basis of authorizations, valid by their terms for but 1 year, 70 of the respondents' 95 bus operators Sixty of these authorizations were later withdrawn. On August 17, 1937, when the respondents entered into a contract with the Amalgamated, it claimed to represent 55 of the respond- ents' 96 bus operators and 40 of the respondents' 67 mechanics, shop and service employees, and dispatchers, or a total of 95 of the re- spondents' 163 operating- and maintenance-department employees. We find that the question which has arisen concerning representa- tion can best be resolved by elections by secret ballot free of the re- spondents' interference, restraint, and coercion. Since the respond- ents have, by engaging in unfair labor practices, interfered with the exercise by their employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the elections, however, upon the receipt of information from the Re- gional Director that the circumstances permit a free choice of rep- resentatives unaffected by the respondents' unlawful acts. At that time we shall also determine the pay-roll date to be used in ascertain- ing who shall be eligible to vote in the elections. 13 See Mattel of The Globe Machine and Stamping Co and Metal Polishers Union, Local No 1, Intonational Association of Machinists , District No 54; Federal Labor Union 18788, anti United Automobile Workers of America. 3 N. L. R B 294, and subsequent cases; Matter of Pennsillaania Gi eyhonnrl Lines et of and The Brotherhood of Railroad Trainmen, N I. R B (i22 SOUTH TEXAS COACHES, INC. 519 Upon the basis of the above findings of fact and upon the entire record in these proceedings, 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 & Motor Coach Employees of America, Division No. 1142, is a labor organ- ization, within the meaning of Section 2 (5) of the Act. 3. Bowen Employees' Union was a labor organization, within the meaning of Section 2 (5) of the Act. 4. Bowen Motor Coaches, a corporation, is the successor of South Texas Coaches, Inc., North Texas Coach Company, a corporation, Roberson Bus Lines, Inc., Wichita Falls Bus Company, a corpora- tion, and Fort Worth-Corsicana-Mexia Coaches, Inc., and as such successor stands in the place of the said dissolved corporations for the purposes of this proceeding. 5. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act.' 7. The respondents have not engaged in unfair labor practices, within the meaning of Section 8 (2), (3), and (5) of the Act. 8. A question affecting commerce has arisen concerning the repre- sentation of employees of Bowen Motor Coaches, a Corporation, Fort Worth, Texas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Bowen Motor Coaches , a Corporation , Fort Worth, Texas, and its officers, agents, successors , and assigns shall: 1. Cease and desist from : (a) Recognizing Amalgamated Association of Street, Electric .Railway & Motor Coach Employees of America , Division No. 1142, as the exclusive representative of its employees for the purposes of collective bargaining, unless and until that labor organization shall have been certified as such by the National Labor Relations Board: (b) Enforcing or attempting to enforce its contracts of August .17, 1937,- and February 16, 1938, with Amalgamated Association of 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Street, Electric Railway & Motor Coach Employees of America, Division No. 1142, or any extension, renewal, modification, or sup- plement thereof, or any superseding contract which may now be in force; without prejudice, however, to the assertion by its employees of any legal rights they may have acquired under such contracts ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organi- zation, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Division No. 1142, as the exclusive representative of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that labor organization shall have been certified as such by the National Labor Relations Board ; (b) Immediately post in conspicuous places in its offices and shops throughout its system and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating that the re- spondent will cease and desist in the manner set forth in paragraphs I (a), (b), and (c), and will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondents have engaged in unfair labor practices within the meaning of Section 8 (2), (3), and (5) of the Act be, and it hereby is, dismissed. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with Bowen Motor Coaches, a Corporation, Fort Worth, Texas, SOUTH TEXAS COACHES, INC. 521 elections by secret ballot shall be conducted at such time as the Board shall in the future direct, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among : (a) The bus operators employed by Bowen Motor Coaches, a Cor- poration, Fort Worth, Texas, to determine whether they desire to be represented by Brotherhood of Railroad Trainmen or Amalga- mated Association of Street, Electric Railway & Motor Coach Em- ployees of America, Division No. 1142, for the purposes of collective bargaining, or by neither; and (b) The mechanics, shop and service employees, and dispatchers employed by Bowen Motor Coaches, a Corporation, Fort Worth, Texas, to determine whether or not they desire to be represented by Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Division No. 1142, for the purposes of collective bargaining. MR. EDWIN S. SMITH, concurring : I concur in the entire decision of the Board and agree that the bus operators should be permitted, if they so desire, to constitute a separate bargaining unit. If the Amalgamated were not in this instance the recipient of the Company's illegal favors, I should accord much weight to its con- tention that the bus operators should be merged in a larger bargaining unit. As it is, the Brotherhood, which desires a separate unit for the bus operators, is the only labor organization free of the influence of the respondents and has carried on its organizational fight against company odds. It is for this reason that I concur in that portion of the majority decision which provides for a separate election among the bus operators. MR. WILLIAM M. LEISERSON, dissenting in part: We have found that there was no refusal to bargain collectively with the Brotherhood, within the meaning of the Act, and we are directing elections to be held for the purpose of determining the representatives of the respondent's employees for the purposes of col- lective bargaining. Under these circumstances, I think it is a mis- take to set aside the existing contract that governs the relations of the respondent and its employees. Private rights of the employees are involved, and daily duties of management and men are governed by the contract. It is sufficient to order that the Amalgamated shall not be recognized as exclusive representative of the employees until the elections determine the choices of the employees.