Continental Rocky Mountian Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 894 (N.L.R.B. 1962)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
7. By the foregoing conduct, by interrogating its employees concerning their union
activities, by threatening to close the plant if the employees chose the Union to
represent them; by requesting its employees to form a shop committee to negotiate
with Respondent instead of a national union; by conducting a poll of its employees
to ascertain if they would suspend their activities in behalf of a national union for
several weeks until Respondent's president returned to the plant; by notifying em-
ployees Richard H. Alt, James Buddelmeyer, Harold Donaldson, Gerald Meyer,
and Joseph W. Morman on or about August 29, 1961, that they were laid off because
of their activities in behalf of the Union and then rescinding such action the same day
following an affirmative employee vote in the Respondent-directed poll above referred
to, Respondent interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Continental Bus System , Inc. d/b/a Continental Rocky Moun-
tain Lines, Inc. and Amalgamated Association of Street, Elec-
tric Railway and Motor Coach Employees of America, Local
No. 1468, AFL-CIO. Case No. 27-CA 1100. September 25, 1962
DECISION AND ORDER
On February 15, 1962, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting briefs,
and the Union filed exceptions.
Pursuant to the provision of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exception and briefs, and the entire record in
this proceeding, and hereby adopts the finding, conclusions, and rec-
ommendations of the Trial Examiner with the following modifications.
1. The Respondent does not deny that it refused to bargain with
the Union and that there was a reduction in the rates of pay and
changes in the hours of employment of four employees 1 during the
week of September 14, 1961. The Respondent contends, however,
that the employees involved were not its employees but were employees
I Richard Safford, Dale Parks, Earl Pitts, Rudy 11akle.
138 NLRB No. 103.
CONTINENTAL ROCKY MOUNTAIN LINES, INC. 895
of Sterling A. Bittle who operated the bus terminal for the Respond-
ent as an independent contractor. The Trial Examiner found, and
we agree, that the Respondent was responsible for the foregoing con-
duct which violated Section 8 (a) (1) and (5) of the Act. In making
this finding, the Trial Examiner properly relied on the Board's deci-
sion in the representation case involving the Respondent, Case No.
27-RC-1986 (not published in NLRB volumes), that the Respondent,
rather than Bittle, was the Employer herein because it retained con-
trol over the employees herein. As it is implicit from the decision in
the representation case and as it is also clear from the record herein,
we further find that Bittle was the representative of the Respondent
in his dealings with the employees herein.
2. The General Counsel in its exceptions requests that the Respond-
ent be required to revoke the unilateral changes in wages and hours
and that a make-whole remedy be provided, covering Respondent's
violation of Section 8 (a) (1) of the Act, making the employees in-
volved whole for any loss of pay suffered, plus 6-percent interest,
because of the Respondent's unilateral reduction in the rates of pay
and hours of employment of said employees. We find merit in these
exceptions and shall frame our order accordingly. We shall make
the backpay award for the full period from the date of the foregoing
unilateral changes to the date of the restoration of the wage rates
and hours of employment which prevailed during the week of Sep-
tember 14,19612 The Respondent shall also pay interest on the back-
pay at the rate of 6 percent to be computed in the manner set forth in
Isis Plumbing c Heating Co., 138 NLRB 716.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the changes indicated below 3
2 Cascade Employees Association , Inc., 126 NLRB 1014 ; A.P.W. Products Co., Inc,
137 NLRB 25.
The following paragraphs are inserted after section 2 ( a) of the Recommended Order:
Revoke the unilateral changes in wage rates and hours of employment which were
instituted for Richard Safford, Dale Parks, Earl Pitts , and Rudy Hakle during the
week of September 14, 1961.
Make whole said employees for any loss of pay , plus 6-percent interest , they may
have suffered by reason of the unilateral changes.
Preserve and, upon request , make available to the Board or its agents, for examina-
tion and copying , all payroll records, social security payment records, timecards,
personnel records and reports , and all other records necessary or appropriate to
permit an anlysis of the backpay amounts due the employees involved herein as set
forth in the Decision.
The following paragraphs are added to the notice attached to the Intermediate Report :
WE WILL revoke the unilateral changes in wage rates and hours of employment of
Richard Safford, Dale Parks, Earl Pitts, and Rudy Hakle instituted during the week
of September 14, 1961.
WF WILL make whole said employees for any loss of pay, plus 6-percent interest,
they suffered by reason of the unilateral cut in their wages and hours of employment.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and a first amended charge duly filed by Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees of America, Local
No. 1468, AFL-CIO, on October 2 and November 7, 1961, respectively, the General
Counsel of the National Labor Relations Board issued a complaint on November
15, 1961, alleging that Continental Bus System, Inc. d/b/a Continental Rocky Moun-
tain Lines, Inc., has engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) the employees at the Respondent's bus terminal at Grand Junction, Colo-
rado, including ticket clerks, ticket agents, baggagemen, and janitors, but excluding
office clerical employees, professional employees, guards, watchmen, and supervisors
as defined in the Act, constitute and at all times material herein did constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act; (2) on or about August 17, 1961, and at all times there-
after a majority of the Respondent's employees in the said appropriate unit designated
and selected the Union as their representative for the purposes of collective bargain-
ing with the Respondent; (3) on or about August 25, 1961, the Regional Director
for the Twenty-seventh Region on behalf of the Board certified the Union as the
exclusive collective-bargaining representative of the employees in the appropriate unit
heretofore described; (4) on or about September 14, 1961, the Respondent by its
supervisor and agent Sterling Bittle, Jr., unilaterally changed existing wage rates
and hours of employment of the employees in the appropriate unit; (5) since on or
about September 20, 1961, the Union requested and continues to request the Re-
spondent to bargain collectively with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment; (6) on or about Septem-
ber 29, 1961, and at all times thereafter the Respondent has refused to bargain
collectively with the Union as the exclusive bargaining representative of all of the
employees in the aforementioned appropriate unit; and (7) by such actions the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)( I) and (5) of the Act.
The Respondent's answer duly filed admitted certain allegations of the complaint
but denied the commission of any unfair labor practices. The answer affirmatively
averred that Respondent on January 4, 1961, entered into a contractual arrangement
with Bittle in which he agreed to render certain services as "commission agent" or
independent contractor, to hire his own employees and assume full responsibility
for them as their sole employer, and under the terms of which it was expressly pro-
vided that Respondent reserved no control whatsoever over the said employees or
the services to be performed by them or their discharge, compensation, or other terms
or conditions of their employment. As a second additional defense the answer set
forth that the Union on or about January 4, 1961, filed a representation petition with
the Board declaring Bittle as the Employer of the purported employees whom it
now represents. Thus, by its words and conduct it recognized Bittle as the employer
and further the employees dealt with Bittle as their Employer and entered into con-
tractual arrangements with him. By such conduct the Union and the employees
are now estopped from claiming that Respondent is their employer.
Pursuant to notice, a hearing was held at Denver, Colorado, on January 8, 1962,
before Trial Examiner Sidney Lindner. The General Counsel, the Respondent, and
the Union were represented at the hearing and all parties were afforded full oppor-
tunity to be heard, to examine and cross- examine witnesses, and to introduce evidence
bearing on the issues. The parties were given the opportunity to present oral
argument before the Trial Examiner and to file briefs, proposed findings of fact, and
conclusions of law.
Upon the entire record in the case, including the record in Case No. 27-RC-1986,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Continental Bus System, Inc. d/b/a Continental Rocky Mountain Lines, Inc., is
a Tennessee corporation with its principal office located at Dallas, Texas. The
Respondent is now, and at all times material herein has been, engaged in the opera-
tion of an interstate bus service among the States of Colorado, Utah, and New
Mexico. In the course and conduct of its operations, the Respondent annually re-
CONTINENTAL ROCKY MOUNTAIN LINES, INC . 897
ceives gross revenues in excess of $250,000. It was stipulated at the hearing and
it is hereby found that the Respondent is engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Association of Street, Electric Railway and Motor Coach Employees
of America, Local No. 1468, AFL-CIO, is a labor organization admitting to mem-
bership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
On November 30, 1960, the Union, claiming to have been designated bargaining
agent by a majority of Respondent's employees at the Grand Junction, Colorado,
bus depot, requested recognition and a meeting to negotiate a collective-bargaining
contract. The Respondent by letter dated December 8, 1960, informed the Union
it would require it to proceed in accordance with the provisions of the Act and that
in accordance with management policy over the past several years it was then actively
engaged in effectuating a contract with a "commission agent," who will not be a
Respondent employee but rather an independent contractor, to take over ticket-
selling as well as some other functions of Respondent's operation at its bus depot
in Grand Junction, Colorado. Respondent therefore saw no necessity for negotiat-
ing with any representative of its "present employees." A petition for certification
of representatives was filed by the Union on December 28, 1960, and docketed by
the Board as Case No. 27-RC-1986.
On January 4, 1961, the Respondent and Sterling P. Bittle entered into a con,
tractual arrangement known as the "Standard Commission Agency Contract" in
which Bittle agreed to render certain services at Respondent's bus depot at Grand
Junction, Colorado.
On January 5, 1961, the Union by its then President Andrew Bergman filed a
petition for certification of representatives docketed as Case No. 27-RC-1988, which
named Sterling P. Bittle as the employer of the same unit of employees at the Grand
Junction bus depot as appeared in Case No. 27-RC-1986. This petition was with-
drawn by Bergman on January 7, 1961, without any formal action being taken by
the Board.
On July 28, 1961, after the usual proceedings which included a full hearing on
the representation petition in Case No. 27-RC-1986, participated in by all the par-
ties involved in the instant proceeding, the Board, after consideration of the entire
record and the brief filed by Continental Rocky Mountain Lines, Inc., in support of
its contentions raised at the representation hearing,' issued a Decision and Direction
of Election in the representation case (not published in NLRB volumes) in which
it found "All employees at the Employer's bus terminal in Grand Junction, Colorado,
including ticket clerks, ticket agents, baggagemen, and janitors, but excluding office
clerical employees, professional employees, guards, watchmen, and supervisors as
defined in the Act" constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
In the election conducted on August 17, 1961, the Union received a majority of
the votes cast. On August 25, 1961, the Regional Director for the Twenty-seventh
Region, acting on behalf of the Board, certified the Union as the bargaining repre-
sentative of Respondent's employees in the unit theretofore found appropriate.
During the week of September 14, 1961, Bittle reduced the rates of pay and
changed the hours of employment of four employees at the Grand Junction bus
depot. Bittle, who testified he was still operating under the terms of the contract
i In its brief Continental set forth that the basic issue Involved was whether or not the
persons in question were in fact employees of Continental or of Bittle as an Independent
contractor or "commission agent." In support of the position that It was not the em-
ployer, Continental contended that it entered Into a valid, binding contractual arrange-
ment with Bittle on January 4, 1961, in which he agreed to render certain services as a
"commission agent" or independent contractor at Continental's bus depot at Grand
Junction, Colorado. It also contended that the contract expressly provided that Con-
tinental shall reserve no control over the agent or its employees or how the facilities
should be furnished or the services performed . It stated that it did not In fact reserve
any control over employees' discharge, compensation, or services render"A by any employee
or person hired by the agent. Continental further contended that it could not repudiate
Its agreement with Bittle otherwise it would be held accountable In damages or other
penalties . And If the Board should declare in the representation proceeding that Con-
tinental is the employer of Bittle's servants and employees for purposes of collective
bargaining , their agreement would be nullified contrary to the intention of the parties.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entered into on January 4, 1961, effectuated the said changes without consulting the
Union.
By letter dated September 20, 1961, addressed to Respondent, the Union called
attention to its certification by the Board and requested a meeting for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment in regard to the Grand Junction depot employees.
The Respondent on September 29, 1961, advised the Union that any meeting
with it would be "presumptious and worthless" for the following reasons: (1)
Respondent was not the employer of the employees whom the Union purported to
represent; (2) the employees worked for, had contracts with, and were on Bittle's
payroll; (3) Respondent would be held accountable in damages for breach of con-
tract if it were to presume to negotiate for Bittle in matters relating to his em-
ployees; and (4) Respondent had neither the right nor the power to enter into
any negotiations relating to such employees.
Respondent did not meet with the Union.
At the hearing herein, Respondent attempted to raise identical contentions it had
advanced in the representation case. I excluded evidence which either was in exist-
ence or was known and available to it at the time of the representation proceeding.2
Citing William S. Shurrett d/b/a Greyhound Terminal and Amalgamated Asso-
ciation of Street, Electric Railway & Motor Coach Employees of America, Division
1174 (AFL-CIO), Case No. 15-RC-2383, an administrative decision of the Board
issued September 7, 1961, CCH NLRB Section 10.603, counsel for Respondent
attempted to adduce evidence from Bittle to prove the latter's annual gross receipts
from the operation of the Grand Junction bus depot. The General Counsel's objec-
tion to the receipt of such evidence was sustained but counsel for Respondent was
permitted an offer of proof on the record to show that the gross annual receipts
from the operation of the bus depot were in excess of $170,000.3
The sum total of the evidence in the instant proceeding establishes no material
change in the operations of Respondent's Grand Junction bus depot since the date of
the Board's previous decision. It is clear from the language in its decision, which
I will hereinafter set forth in detail, that the Board considered and dealt with all of
Respondent's contentions raised at that time and herein.
The Employer contends that it is not the employer of the employees in the
unit, and moves to dismiss the petition. However, the record shows that the
terminal is an essential link in the Employer's operation of an interstate bus
transportation system. Moreover, at the time the petition was filed the termi-
nal was in fact operated by the Employer, and the employees were directly
employed by the Employer.
It is true that the Employer thereafter contracted with one Sterling Bittle,
Jr., theretofore an employee, to take over operation of the terminal. However
the public designation of the terminal was not changed, and the Employer's
brief in this case still refers to it as "Continental's bus depot at Grand Junction,
Colorado." The Employer argues that the contract nevertheless made Bittle
the employer of the employees it had theretofore employed to operate the
terminal . However, in the contract the Employer retained many continuing
obligations: The obligation to pay the rent of the terminal, and the obligation
to furnish the necessary equipment, utilities and janitorial services. Moreover,
the contract reserves to the Employer many rights: The right to inspect the ter-
minal , the right to all bus tickets and the proceeds from their sale, and the
right to receive daily reports and remittances from Bittle. Most significantly,
the Employer retains the right to terminate the contract immediately, without
notice, for certain defaults by Bittle, and afer 10 days for other defaults.
2It is well settled that issues which have been fully litigated in a prior representation
proceeding may not be relitigated thereafter in a complaint proceeding unless it can be
shown that facts not then known had subsequently become available and were of sub-
stantial materiality to the resolution of the issues involved. Pittsburgh Plate Glass
Company v. N.L R B., 313 U S. 146, 161-162; N L.R B. v. West Kentucky Coal Company,
152 F. 2d 198, 200-201 (C.A. 6), cert denied 328 U.S. 866; Allis-Chalmers Manufactur-
ing Company v. N.L.R.B., 162 F. 2d 435 (C.A. 7).
8 It should be noted that Bittle received only a commission on the gross receipts.
Several factors in the present situation different from the Shurrett case, supra, are that
the employer there paid Greyhound an annual rental for the terminal property, and his
gross income consisting primarily of commissions from the sale of tickets , charters, and
tours as distinguished from gross receipts was in excess of $50,000.
CONTINENTAL ROCKY MOUNTAIN LINES, INC. 899
In these circumstances and on the basis of the entire record, we are of the
opinion that the Employer has not divested itself of sufficient control over the
employees involved by the other provisions of the contract: For example, the
provisions giving Bittle the right of control over the employes, and imposing
on him the obligation of paying their wages out of his commissions from ticket
sales and making the necessary payroll deductions, and the further obligation
of holding the Employer harmless from liabilities arising at the terminal.
Accordingly, we deny the Employer's motion to dismiss the petition. See
Albert Lea Cooperative Creamery Association, 119 NLRB 817, 821; Provident
Life and Accident Insurance Company, 118 NLRB 412. See also King v.
Southwestern Greyhound Lines, Inc., 169 F. 2d 497.
The Board's decision in Case No. 27-RC-1986 is binding upon me as is the certi-
fication of the Union on August 25, 1961.
Accordingly I conclude that Respondent's admitted refusal to recognize or bargain
with the Union on and after September 29, 1961, constituted an unfair labor prac-
tice violative of Section 8(a)(5) of the Act and by Bittle's actions during the week
of September 14, 1961, unilaterally changing the rates and hours of employment of
the employees in the heretofore found appropriate unit, Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within,
the meaning of Section 8(a)(5) and (1) of the Act, I will recommend that it cease
and desist therefrom and from "in any manner interfering with the efforts of the
[Union] to bargain collectively with [Respondent]." 4 I will further recommend
that Respondent take certain affirmative action in order to effectuate the policies
of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, including the record in the representation case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. All employees at the Respondent's bus terminal in Grand Junction, Colorado,
including ticket clerks, ticket agents, baggagemen, and janitors, but excluding
office clerical employees, professional employees, guards, watchmen, and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining.
3. The Union, since the date of its certification, August 25, 1961, has been and
now is the exclusive representative of all employees in the aforesaid appropriate unit
for purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing on and since September 29, 1961, to bargain collectively with the
Union as the representative of the above employees and by unilaterally changing
the rates of pay and hours of employment of the employees in the above-described
appropriate unit, Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Continental Bus
System, Inc. d/b/a Continental Rocky Mountain Lines, Inc., its officers, agents.,
successors, and assigns, shall:
4 See N.L .R.B. v. Empress Publishing Company, 312 U.S. 426, 439.
662353-63-vol 138-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, Local No. 1468,
AFL-CIO, as the exclusive representative of the employees in the following appro-
priate unit : All employees at the Respondent 's bus terminal in Grand Junction,
Colorado, including ticket clerks , ticket agents, baggagemen , and janitors, but
excluding office clerical employees , professional employees , guards, watchmen, and
supervisors as defined in the Act.
(b) Unilaterally changing wage rates and hours of employment of the employees
in the above -described appropriate unit.
(c) In any manner interfering with the efforts of the above -named Union to
bargain collectively with the above-named Company on behalf of the employees in
the above-described unit.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above -named Union as the
exclusive representative of all employees in the appropriate unit and embody in
a signed agreement any understanding reached.
(b) Post at its bus depot at Grand Junction , Colorado, copies of the notice
attached marked "Appendix ." 5 Copies of such notice , to be furnished by the
Regional Director for the Twenty-seventh Region, shall, after being signed by an
authorized representative of the Respondent , be posted immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director , in writing , within 20 days from the date
of the receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith.6
6In the event that this Recommended Order be adopted by the Board the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board' s Order be enforced by a
decree of a United States Court of Appeals , the Words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
6In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendation of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of America, Local No.
1468, AFL-CIO, as the exclusive representative of the employees in the bargain-
ing unit described below.
WE WILL NOT in any manner interfere with the efforts of Amalgamated
Association of Street, Electric Railway and Motor Coach Employees of America,
Local No. 1468, AFL-CIO, to bargain collectively as the exclusive representa-
tive of the employees in the bargaining unit described below.
WE WILL, upon request, bargain with Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, Local No. 1468,
AFL-CIO, as the exclusive representative of all the employees in the bargain-
ing unit described below with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment, and, if an understanding
is reached, embody such an understanding in a signed agreement.
WE WILL NOT unilaterally change the rates of pay and hours of employment
of the employees in the bargaining unit described below . The bargaining
unit is:
All employees at our bus terminal in Grand Junction, Colorado, includ-
ing ticket clerks, ticket agents , baggagemen , and janitors , but excluding
LOCAL 1065 , UNITED BROTHERHOOD OF CARPENTERS 901
office clerical employees, professional employees, guards, watchmen, and
supervisors as defined in the Act.
CONTINENTAL Bus SYSTEM INC. D/B/A CONTINENTAL
ROCKY MOUNTAIN LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 609 Rail-
way Exchange Building, 17th and Champa Street, Denver, Colorado, Telephone
Number, Keystone 4-4151, Extension 513, if they have any question concerning
this notice or compliance with its provisions.
Local Union No. 1065, United Brotherhood of Carpenters and
Joiners of America , AFL-CIO and Willamette General Con-
tractors Association and C. J. Hansen Company . Cases Nos.
36-CC-87-1 and 36-CC-87-2. September 25, 1962
DECISION AND ORDER
On May 21, 1962, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed a motion to re-
open the record and the General Counsel filed a motion in opposition
thereto.' The Respondent also filed exceptions to the Intermediate
Report, a supporting brief, and a request for oral argument 2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
1 By its motion to reopen the record, the Respondent seeks to introduce certain evi-
dence which it alleges would establish that its picketing was conducted for the purpose of
forcing Mills Construction Company to submit to an arbitration under the terms of its
contract with Respondent. Even if it could be said that Respondent sought arbitration,
its picketing to force Mills to an arbitration and in this manner compel Mills to cease
doing business with Largent under the contract's hot cargo clause, we would still find
Respondent had violated the Act. Construction, Production & Maintenance Laborers
Union Local 383, AFL-CIO, et at. (Colson and Stevens Construction Co., Inc.), 137 NLRB
1650 The motion is denied.
2 Because, in our opinion, the record, exceptions, motions, and brief adequately set forth
the issues and positions of the parties, this request is hereby denied.
138 NLRB No. 94.