Eastern Massachusetts Street Railway Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1963 (N.L.R.B. 1954)

EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1963 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 thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By maintaining a rule forbidding solicitation on company property during non- working time, and by discriminatorily applying its no-solicitation rule by denying to the Union, upon its timely request, equal opportunities to reply to Respondent's speeches concerning the Union and the election or to distribute union literature in the plant under circumstances comparable to its own distribution of literature concerning said subjects, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), affecting commerce within the meaning of Section 2 (6) and (7). THE REMEDY It having been found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. [Recommendations omitted from publication.] EASTERN MASSACHUSETTS STREET RAILWAY COMPANY and THE GEN- ERAL CONFERENCE COMMITTEE OF BOSTON, AFFILIATED WITH AMAL- GAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL and LOCAL DIVISION 280, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL, PARTY TO THE CONTRACT EASTERN MASSACHUSETTS STREET RAILWAY COMPANY and DOUGLAS HOLDER, LYNWOOD M. HYDE, DONALD M. GAGNON, RAYMOND F. MCCARTHY, FRANCIS T. SHANNON, ERNEST Z. MARCOTTE EASTERN MASSACHUSETTS STREET RAILWAY COMPANY and LOCAL Di- VISIONS 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, AMAL- GAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL and LOCAL DIVISION 280, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL, PARTY TO THE CONTRACT EASTERN MASSACHUSETTS STREET RAILWAY COMPANY and LEROY F. LAPHAM AND LAWRENCE F. CLARK LOCAL 235, AMALGAMATED ASSOCIATION-OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, AFL and LEROY F. LAP- HAM AND LAWRENCE F. CLARK . Cases Nos.1-CA-1390,1-CA-1374, 1-CA-187, 1-CA-1335, and 1-CB-213. December 16, 1954 Decision and Order On September 18, 1953, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- 110 NLRB No. 235. 1964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the Respondent Company had engaged in and was engaging in certain unfair labor practices affecting commerce within the mean- ing of Section 8 (a) (1), (2), (3), (4), and (5) of the Act, and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices, and recommended dismissal of such allegations. Exceptions were thereafter filed only by the Company. Briefs were filed by the Company, the General Counsel, and The General Con- ference Committee of Boston. The Company also requested oral argument, which was held before the Board at Washington, D. C., on October 14, 1954; the Company, the GCC, and the General Counsel participated. The Board has reviewed the rulings of the Trial Examiner made 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, the briefs, the oral argument, and the entire record in the case, and hereby adopts the'Trial Examiner's findings, conclusions, and recommendations with the following modifications : 1. The Company admitted in its answer, and the Trial Examiner found, that the Company was engaged in commerce within the mean- ing of the Act. No exception was filed to this finding. Exceptions were filed, however, to the further finding that the Company had engaged in unfair labor practices affecting commerce. Thereafter, the Board reopened the record for the purpose of receiving further evidence, if any, as to the effect of the Company's operations on com- merce, and a hearing was duly held from March 9 to 11 and on May 3, 1954. Thereafter, briefs were duly filed by the Company and the GCC. At the reopened hearing the Company was allowed to amend its answer to deny that it was engaged in commerce, and it then moved to dismiss the case for lack of jurisdiction. For the reasons set forth below, the motion is denied. The record shows that the Company is a public utility. Its princi- pal business is the transportation of passengers almost entirely with- in the Commonwealth of Massachusetts. Both for the year 1951 and for the year 1952 its total revenue was more than $6,000,000; the population of the area served by the Company is more than 1,500,000. On the entire record we are satisfied that the Company's operations have a pronounced effect on commerce within the meaning of the Act EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1965 and warrant our assertion of jurisdiction inasmuch as its operations meet the $3,000,000 gross receipts standard for public utilities.' 2. The principal issues of this case are whether the Company, by dealing with its Lowell Division employees separately from all its other employees and by entering into a contract with the Lowell Local on behalf of the employees of that single division, unlawfully refused to bargain, in violation of Section 8 (a) (5) of the Act, with the bargaining representative of all its employees, and unlawfully as- sisted the Lowell Local, in violation of Section 8 (a) (2). For the many reasons set forth by the Trial Examiner in his Intermediate Report, and particularly the long history of collective bargaining prior to 1952 and the many significant facts incident thereto, we agree with the Trial Examiner that there had come into existence a single com- panywide bargaining unit and that the Company had bargained on that single, overall unit basis. In the light of that basic factual find- ing, we find, as did the Trial Examiner, that the Company could not lawfully fragmentize the existing bargaining unit by dealing sepa- rately with its Lowell Division employees.' A very significant aspect of the appropriate unit issue in this case, and indeed the one which may fundamentally have brought into existence the companywide bargaining unit, is the highly integrated nature of the operations of the Company's business . As a public transportation company and public utility, the bus system here involved criss-crosses the entire eastern portion of the Commonwealth of Massachusetts and is charac- terized by a unity of function and control. The Board has long recog- nized that public utility operations of this type are basically so integrated that the ultimate appropriate bargaining unit is coex- tensive with the Employer's entire operations.' It is clear on the basis of firmly established Board precedent that had the Company in June 1952 itself petitioned this Board for establishment of a separate unit of its Lowell Division employees, the Board would have refused to do so because of this very integrated nature of its operations and the bargaining history on an overall basis 4 Just as the bargaining unit which governs the collective-bargaining activities of all the Company's employees was companywide, in like fashion the bargaining agent which represented all those employees, whether referred to in terms of the 11 locals acting as one or in terms of the Association, was a single bargaining entity. In fact, as the 1 See Greenwich Gas Company and Fuels Incorporated, 110 NLRB 564. s See American Potash and Chemical Company, 107 NLRB 1418 ; Owens -Illinois Glass Company, 108 NLRB 947 3 See Southwestern Bell Telephone Company, 108 NLRB 1041, and cases there cited 4 In fact, when another labor organization (the IAM) filed a representation petition for a part of the companywide unit, the Regional Director dismissed the petition. On appeal, the Board on January 22, 1952, found that the appropriate unit was companywide in view of the long history of collective bargaining on that basis, and accordingly sustained the Regional Director's dismissal of the petition (Case No. 1-RC-2534). 1966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner found, and as the record fully shows, from the time this Company took over the operation of the entire transportation operation in about 1919, up to June 25, 1952, when it bargained sepa- rately with the Lowell employees, it uninterruptedly recognized the Association as representative of all its operating and maintenance employees, regardless of the division where they worked .5 Over the years, the Association established various subordinate organizations or locals to achieve the most effective representation of the employees involved, following the management-established pattern of opera- tional divisions. This internal arrangement within the bargaining agent was for union convenience, did not obscure the desires of the majority of employees to be represented in a single appropriate com- panywide unit, and in no way affected the Company's recognition of the Association as the "other party" in its collective-bargaining re- lations. For the purposes of collective bargaining, the Association required these subordinate groups to act as a single labor organiza- tion, through a formal organization known originally as the Joint Conference Board and since about 1923 as the GCC (the change in name involved no substantial functional change). Although the• GCC did not itself sign the various contracts it negotiated with the Company, the record clearly shows and the Trial Examiner found that the Company was fully aware that a single labor organization was representing all its employees on a companywide basis.6 More- over, the record is entirely devoid of evidence that the GCC was not genuinely representing the Lowell Division employees. No question arose respecting the Association's status as the ma- jority representative on the basis of a companywide bargaining unit.. It follows, as the complaint alleges, that when the Company dealt- with the Lowell Local as representing a mere fraction of this appro- priate unit, at the very time when the Association had the right, and in fact was insisting upon exercising it, to represent all the Company's 6 Although the Company argues that reference to the Association now creates ambiguity, we, like the Trial Ixaminer, use the word in the sense it was used by the Company itself in its many contracts in evidence , which stated that the "party of the second part ," consisting of the locals , was called the "Association " and was recognized as the sole and exclusive bar- gaining "agent" of all the operating and' maintenance employees . Indeed , section 9 (1) of the most recent contract specifically states that the Association may refer to either the locals or the International , and section 11 (1), like its predecessors since 1948 , requires mem-- bership in the "Association" as it condition of employment after 30 days 9 For example , the Company refused in 1942 to discuss a certain request for time and a half by one of the Association locals ( Lawrence ) on the ground that the matter should be- negotiated by the overall organization and not by a component local. In 1948 the Company- agreed to a single companywide union -authorization election under Section 9 (e) (1) of the Act as it then existed , with but a single candidate on the ballot On October 30, 1951, the- Company wrote a letter to the GCC reciting that its current agreement with the Associa- tion was about to expire, and requesting continuation of the agreement with certain stated modifications relating to the terms and conditions of employment generally , without refer- ence to divisional lines. And in November 1951 , when another labor oigamzation ( the IADI) requested recognition for the maintenance employees , the Company refused on the ground that such employees were but part of a single bargaining unit covered by contract with the- Association. V EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1967 employees , its conduct constituted a refusal to bargain with the nma- jority representative in the appropriate unit and therefore a viola- tion of Section 8 (a) (5) of the statute.' Similarly , the recognition which it accorded the Lowell Local as bargaining agent in the inap- propriate grouping of a minority of the employees , at a time when it was under obligation to bargain with the duly designated majority representative in the appropriate unit, was unlawful assistance to the Lowell Local and therefore a violation of Section 8 (a) (2).11 In effect, the Company, in the midst of companywide negotiations with the GCC, disturbed the established pattern of collective bargaining by assisting the Lowell Division to split off from the appropriate unit. Its action in contracting with a labor organization other than the statutory representative of its employees was in derogation of the exclusive representative status of the GCC. In contrast , during the preceding year the Company had properly refused to grant the request of another Association local ( Lynn) for separate recognition, and instead had taken the position , consistent with the long-established recognition of a single companywide unit, that the Lynn Local should turn to the Board in a representation proceeding for determination of an appropriate bargaining unit other than the existing one. While the Company refused to continue recognizing the GCC as the repre- sentative of all its employees , including those at Lowell , it also con- tinued its unlawful assistance of the Lowell Local . And finally, in the fall of 1952, it gave further implementation to its unlawful deal- ing with the Lowell employees , apart from all the other employees in the companywide unit, when it recognized the Transit Workers as the successor to the Lowell Local and awarded it the union-security contract previously made with the Lowell Local . This, despite the fact that the Transit Workers was not then in compliance with the filing requirements of Section 9 (f), (g), and ( h) of the statute and therefore , within the meaning of the proviso to Section 8 (a) (3), was not entitled to any union -security provision , even if it were the proper bargaining representative. 3. A subsidiary aspect of this case is the charge that the Company unlawfully discriminated against 11 employees , 8 in the Lowell Divi- sion and 3 in the Haverhill Division , because of their activities on behalf of the Association? As to the 8 Lowell employees , a 2-fold dis- crimination is charged : first, in the discharge or suspension of each employee , and second , in the Company's insistence that they process 7 See N. L R B v. Jones it Laughlin Steel Corp , 301 U. S. 1, 44; Medo Photo Supply Corp. v. N L. R. B , 321 U S.678,683-4 Sid See also N L R B v. Bradford Dyeing Assn, 310 U. S 318, 337-8; Harrison. Sheet Steel Company v N L R. B., 194 F 2d 407 (C A. 7). 9 The complaint also alleges unlawful discrimination against McCabe, but the Trial Ex- aminer found that he was discharged for cause and not in violation of the statute No, exceptions were filed to this finding and we therefore adopt it. 1968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the resulting grievance through the Lowell Local or its successor, the Transit Workers, rather than the Association. We agree with the Trial Examiner's conclusion that the Company discriminated against O'Neill and Marcotte, discussed separately be- low. As to the remaining nine complainants, we are not satisfied that the record as a whole supports the inference, urged by the General Counsel and made by the Trial Examiner, that the Company in dis- ciplining them was motivated by union animus rather than, as the Company asserts, just cause. Thus, Kelley was absent from work on August 10, 1952, without himself notifying his foreman, in violation of a company rule against taking time off for personal reasons, and was indefinitely suspended for that stated reason. McNamara violated a company rule against interviewing witnesses about an accident in- volving the bus he was driving, and was indefinitely suspended for that reason. Crow violated a company rule requiring a full stop before a railroad crossing, and for failing to connect with a certain train and to pick up passengers, and was indefinitely suspended be- cause of the violations. Ralph McCarthy violated a company rule against deliberately permitting a passenger to ride free, and was ac- cordingly indefinitely suspended.10 Holder and Hyde engaged in certain work-rule infractions and were indefinitely suspended or dis- charged therefor." Cox was absent from work and was suspended for a day; and he later engaged in certain working-rule irregularities and was suspended for 2 days. McLean also engaged in certain rule infractions and was suspended for 5 days; and later he engaged in similar infractions and was suspended for 10 days. Halloran repeat- edly engaged in misconduct of various types and was suspended for periods of 5, 10, and 3 days. There can be no question that in the case of each of the foregoing nine employees, the Company's operational rules were in fact broken by them. The disciplinary action taken therefore cannot on its face be said to have been improper or unlawful. It is true that the Com- pany's favored treatment of the Lowell Local and its rejection of the Association's continued efforts to represent all the employees may bear some relationship to the Company's treatment of these specified employees. Equally significant, however, is the fact that in no in- stance does the record show direct evidence of antiunion motivation on the part of the various supervisory officials who dealt with these employees. Indeed, the entire long record is barren of any direct proof of opposition by this Company to the basic statutory rights of its employees to engage in union activities, as guaranteed by the 10 we note that at about the same time Lowell Division Manager Markham revoked a 5-day suspension of McCarthy allegedly for not completing a trip, when McCarthy was able to prove to Markham 's satisfaction that he had completed the trip. 11 Grievance appeals were being presented on their behalf by the Haverhill Local at the time of the hearing EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1969 statute. In these circumstances, we are not satisfied that the affirma- tive burden resting upon the General Counsel to prove unlawful dis- crimination in the initial suspension of these employees has been satisfied. Apart from the disciplinary action, there stands the allegation that after suspending the Lowell employees named in the complaint, either for fixed short periods or indefinitely, the Company discriminated against them in their tenure of employment because it refused to per- mit them to process their grievances through Association representa- tives. After the suspensions these employees found themselves in a position which was a very common occurrence in the Company's day- to-day operations. The record shows amply and the Company does not deny that in the case of indefinite suspensions, following infrac- tion of any one of a great many operational rules, the normal experi- ence was for the individual employee to appeal his suspension by means of a grievance under the contract, and that in almost all in- stances the suspension was reduced to a disciplinary action of a fixed number of days, seldom exceeding 10. It is clear, as the Trail Exam- iner found, that had the 4 indefinitely suspended Lowell employees been permitted to proceed as in the past in appealing for reconsidera- tion, they would have been restored to the payroll. We agree with the Trial Examiner's finding that the Company made it clear that these employees could have had their suspensions reduced only if they were willing to utilize the services of the Lowell Local. Thus, before the suspensions the Company refused to continue to rec- ognize the GCC as the representative of any of the Lowell Division employees, even those expelled by the Lowell Local for remaining loyal to the GCC. And when McNamara, after his suspension, asked a GCC representative to prosecute his grievance, the Company refused to entertain it, on the ground that the regular channels were through the Lowell Local. Moreover, McCarthy was told by Manager Mark- ham that the only way to get back on the job was through the Local. And Halloran was likewise told that if he wished to appeal his 5-day suspension, he should take it up with the Lowell Local. Furthermore, in requesting leaves of absence, both O'Neill, who we have already found was discriminated against by the Company, and McCarthy were told that their requests would be granted only if presented by the Local. In addition, the Company, ever since recognizing the Lowell Local, had refused the GCC's request for continued recogni- tion of the Lowell employees. Indeed, Kelley knew of the Company's consistent position so well that, after his suspension, he immediately sought the assistance of the Lowell Local without even bothering to approach the Company; but he was turned away with a statement that the Lowell Local was not available unless he abandoned the GCC. 338207-55-vol. 110-125 1970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have found the Company's very recognition of the Lowell Local as a bargaining agent for the Lowell employees was a viola- tion of the statutory duty to bargain only with the Association, it necessarily follows that insistence upon any particular employee's co- operation in this unlawful objective of the Company was a further encroachment upon his right to utilize the services of the exclusive bargaining representative. It matters not that the Company in this case was not opposed to the basic rights of its employees to engage in concerted activities or to utilize the services of a labor organization. The illegality of its conduct in this respect does not involve, and we do not find it to be, inherently antiunion motivation. Its refusal to deal with the proper bargaining representatives of these employees was, nonethelf,ss, an inseparable part of its unlawful refusal to bargain with the Association and its unlawful recognition of the Lowell Local. In the case of each of the four indefinitely suspended Lowell em- ployees, this adamant position of the Company resulted in discrimina- tion in their tenure of employment which would otherwise not have been visited upon them, and we find that the Company violated Sec- tion 8 ( a) (3) as to each of them. However, the record does not establish the number of days that each indefinite suspension would have been reduced to if it had, been appealed. In these circumstances, where the Company has clearly discriminated against the four employees over and above the disci- pline which it properly imposed on a nondiscriminatory basis, we have searched the record to arrive at a rule which would be fair and rea- sonable to all those involved for determining how much of the sus- pension was nondiscriminatory. We find that a 10-day suspension would have been fair and reasonable, and that suspension beyond that period was discriminatory and in violation of Section 8 (a) (3) of the Act.12 As for the other Lowell employees (Cox, McLean, and Halloran), they were suspended for definite periods from 1 to 10 days for their various infractions. The record shows only that definite suspensions were sometimes reduced on appeal; it fails to establish that the par- ticular suspensions here involved would have been reduced at all. In these circumstances we are not satisfied that these employees were discriminated against when the Company took the position that it would entertain grievances only from the Local.13 The date of the discrimination against each. of the four employees is thus as follows: ]Kelley ------------------------------------------------ August 24, 1952 McNamara ----------------------------------------- August 31, 1952 Crow ----- ----------------------------------------- September 4, 1952 Ralph McCarthy ----------------------------------- January 31, 1953 '- Member Murdock disagrees that they were not discriminated against , but In view of the determination above that 10-day suspensions would be treated as reasonable, no, remedy would follow. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1971 We agree with the Trial Examiner's conclusion, on the basis of the entire record, that in the case of O'Neill, whose employment was terminated at the Lowell Division, and Marcotte, who was terminated at Haverhill, the Company discriminated against them in violation of Section 8 (a) (3) of the Act. O'Neill notified the Company on August 17 or 18, 1952, that he'was under doctor's orders not to drive a bus. Lowell Division Manager Markham thereupon told him that he would be granted sick leave, and that a company rule prohibited employees from accepting other employment while on sick leave. Markham added that a leave of absence, permitting O'Neill to work elsewhere without jeopardizing his employment with the Company, would be granted only if the Lowell Local approved. On August 19, Markham learned that O'Neill was employed elsewhere at a desk job, and dropped his name from the employment roster. On August 28, the Company learned that charges of discrimination had been filed on O'Neill's behalf. On August 30, after O'Neill asked to return to work for the Company in view of his doctor's advice that he could again drive a bus, Markham told O'Neill that he could not return because of the charges filed with the Board, and that he would have to wait until the Board put him back to work. It is clear on these facts that had O'Neill yielded to the Company's request that he accept the Lowell Local as his collective-bargaining representative apart from the Association, he would not have been refused a leave of aMence or removed from employment. Thus, as the Trial Examiner correctly found, the Company in effect discharged O'Neill on August 19, 1952, because of his refusal to join in a collec- tive-bargaining arrangement which, from its inception, constituted an unfair labor practice on the part of the Company. The Company's recognition of the Lowell Local being a violation of the statute, it follows that the Company's insistence that O'Neill become a party to the unlawful arrangement, on pain of discharge, was a discrimination in violation of Section 8 (a) (3) of the Act. We further agree with the Trial Examiner that the Company on August 30 refused O'Neill's application for reinstatement because of the charges filed with the Board, in violation of Section 8 (a) (4) of the Act. Marcotte was a spare operator at the Haverhill Division. When a majority of the Haverhill employees abandoned the strike late in June 1952 and returned to work, he remained loyal to the concerted strike activity of the GCC, the companywide representative. The Company knew of Marcotte's adherence to the cause of the Association and, as appears in the record, this persistence by Marcotte displeased the Haverhill Divison manager, Withrow, who admitted that he felt that the strikers should return to work. When the companywide strike was officially terminated on July 15, Marcotte returned to work. He had contracted a recurrent kidney ailment as the result of a war injury, 1972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and his doctor had ordered him to take it easy for awhile. Early in 1952, Manager Withrow had told Marcotte that it was permissible to continue his easier part-time job with United Shoe and Leather Com- pany so long as he remained available to the Company when needed for work and did not cost the Company overtime for another opera- tor. Withrow repeated this statement at a conference with Marcotte on October 20, emphasizing that Marcotte should report sick the night before if his health did not permit him to drive a bus. On the evening of October 22, Marcotte accordingly phoned in, learned that his services would not be needed the next day, and re- quested sick leave. On the next day, October 23, he worked at United Shoe, and again phoned the Company that night to see whether he would be needed the following day. However, he was told that he was discharged for having worked at United Shoe while on sick leave. Somewhat later he was refused the customary conference with With- row about the discharge. By way of contrast, the Company permitted other employees, and particularly spare operator O'Brien (who had abandoned the GCC strike in June and returned to work), to con- tinue working while holding outside jobs. On the entire record, we agree with the Trial Examiner that the Company discharged Mar- cotte on October 23, 1952, because of his union activity, in violation of Section 8 (a) (3) of the Act. 4. We agree with the Trial Examiner that by the foregoing and other unfair labor practices set forth in the I4ermediate Report the Company violated Section 8 (a) (1) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Eastern Massachusetts Street Railway Company, Boston, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with The General Confer- ence Committee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, as the exclusive representative of all bus operators and collec- tors employed by the Company and all employees in the Company's mechanical and miscellaneous departments, regardless of the operat- ing division to which they are assigned and specifically including those employed in the Lowell Division, but excluding office and clerical employees, guards, and supervisors as defined in the Act, with respect to wages, rates of pay, hours of employment, or other conditions of employment. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1973 (b) Rendering support or assistance to Local Division 280, Amal- gamated Association of Street, Electric Railway and Motor Coach Employees of America, or its successor, Transit Workers Local No. 1, as the representative of any of its employees for the purpose of deal- ing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Performing or giving effect to its contract of June 25, 1952 with Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, which Transit Workers Local No. 1 was permitted to assume about November 1, 1952, or to any modification, extension, supplement, or renewal there- of, or to any superseding agreement with such organizations. (d) Discouraging membership in The General Conference Com- mittee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, or any labor organization affiliated therewith, or any other labor organi- zation of its employees, or encouraging membership in Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, or Transit Workers Local No. 1, or any other labor organization of its employees, by in any manner dis- criminating in regard to hire or tenure of employment or any term or condition thereof because of their union membership or activity or because charges in their behalf have been filed with the Board. \ (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist The General Conference Com- mittee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, or any labor organization affiliated therewith, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with The General Confer- ence Committee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, as the exclusive representative of all bus operators and collectors employed by the Company and all employees in its mechanical and miscellaneous departments, regardless of the operating division to 1974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which they are assigned and specifically including those employed in the Lowell Division, but excluding office and clerical employees, guards, and supervisors as defined in the Act, and if an understand- ing is reached embody such understanding in a signed agreement. (b) Offer to Daniel E. O'Neill, Ernest Z. Marcotte, Dustan B. Kelley, Frederick J. McNamara, John Crow, and Ralph J. McCarthy immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suf- fered by reason of the discrimination against them, in the manner set forth herein and in the section of the Intermediate Report entitled "The Remedy." (c) Withdraw and withhold recognition from Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, or its successor, Transit Workers Local No. 1, as the representative of any of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (d) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amounts of back pay due under the terms of-this Order. (e) Post in its offices at Boston, Massachusetts, and at its various operating divisions, copies of the notice attached hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for the First Region, after being duly signed by the Company shall be posted by the Company immediately upon receipt thereof and be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Company has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that either the Company or Local 235, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, violated the Act in any other respect than herein found. 14 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1975 MEMBER BEESON , dissenting in part : I do not believe that by executing a contract with the Lowell Local on June 25, 1952, and thereafter refusing to recognize the GCC as the representative of the Lowell employees, the Company violated Sec- tion 8 (a) (5) of the Act. I find that a unit confined to the Lowell employees was appropriate at the time the contract with the Lowell Local was signed and that such contract was therefore not unlawful and justified the Company's subsequent refusal to bargain with the GCC with respect to the employees already covered by such contract. As the basic issue is, therefore, the appropriateness of the Lowell unit, it may be well to refer to the only provision in the statute which is directly relevant to this question. Section 9 (b) of the Act provides : The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guar- anteed by this Act, the unit appropriate for the purposes of col- lective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. . . . [Emphasis supplied.] When the issue, as here, is single-plant versus multi-plant unit, the Act leaves the Board free to select that unit which it believes will as- sure to the employees the "fullest freedom in exercising their rights." In the absence of a substantial history of collective bargaining the Board has held that in the transportation industry either a system- wide or divisionwide unit may be appropriate.15 However, where there has been a substantial history of bargaining on a multiplant basis, the Board has consistently rejected petitions for single-plant units.1e In the case at bar, the history of bargaining is not in my opinion conclusive that the parties intended to, or did in fact, bargain on the basis of a systemwide unit. I am satisfied that the Company con- sidered the various locals to be separate parties to the contract, as wit- ness, for example, the fact that, in bringing suit on its contract in a State court, the Company named the locals individually as defendants. But, even if under past Board precedents the Lowell unit was not appropriate, those precedents are not based on any mandatory lan- guage in the Act. In fact, the Act specifically permits "plant" units (see supra). Additionally, it seems that American Potash, in permitting sever- ance of a department despite a history of bargaining in a larger unit, lends support to the proposition that the Lowell unit might appropri- ately be severed. While the position of Potash with regard to craft units has some basis in the legislative history of Section 9 (b) (2), 15 Central Greyhound Lines, 88 NLRB 13 ; Smith's Transfer Corporation of Staunton, 97 NLRB 1456 ; Associated Transport, Inc., 93 NLRB 1569. 16 E. g., International Paper Company, 97 NLRB 764; American BusUne8, Inc., 79 NLRB 329. 1976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is no such statutory basis for the severance of departments. Moreover, the Board has consistently refused to give controlling weight to bargaining history in permitting the severance of office clerical employees from a plantwide unit." Also, a long history of bargaining on a multiemployer basis has been held not to prevent a finding that a unit limited to the employees of a single employer is appropriate, provided only that such employer has shown his desire to bargain separately in the future.18 It is thus clear that the Board has not been consistent in its treatment of bargaining history as a factor in its unit findings, and it seems that only when the issue has been single-plant versus multi-plant unit has the Board held that past bargaining on the basis of the larger unit precluded severance of the smaller unit. This disparity of treatment is particularly marked when one contrasts the Board's policy of per- mitting severance of production departments from a plantwide unit with its policy of denying severance of individual plants from a multi- plant unit (even though a plant unit is specifically approved in the Act). While it is true that employees in such departments generally have different training and duties from other production employees, it would nevertheless seem that they would normally have a closer community of interest with other employees in the same plant than would exist between employees in separate plants. Yet, the Board will permit severance of the department but not of the plant. Where, as here, the several plants (or divisions) are in different communities, there may well be differences in economic conditions af- fecting the employees in a particular plant (division) which would militate against community of interest between such employees and those in other plants (divisions). Thus, a particular wage increase may be of such vital concern to employees in a community with rela- tively high living costs that they would be willing to endure the hard- ships of a protracted strike to obtain such an increase. However, em- ployees in a community with lower living costs might well prefer to accept a compromise offer by the employer. If we place both these groups of employees in the same bargaining unit, requiring them to bargain through the same representative for a uniform contract, we force them to make common cause despite diverging economic interests. In the usual situation involving a multiemployer bargaining unit, we find, on the one hand, a group of employers voluntarily associated together to bargain through a common representative, and, on the other hand, a single union representing all the employees. Conversely, in the instant case, a group of autonomous local unions have voluntarily associated together to bargain through a common representative (the 17 E. g., The Texas Company, 104 NLRB 197, 198. v E. g., Coca-Cola Bottlrong Works Company, 93 NLRB 1414. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1977 GCC) with a single employer. It is well settled that, in the former situation, the Board will permit any of the employers to "fragmentize" the unit by indicating a desire to bargain separately in the future, regardless of the desires of the common representative, the other em- ployers, or the union. Why, therefore, cannot a union, such as the local at Lowell, withdraw from common bargaining with other unions? The Board has never advanced any reason for such a distinction and I am aware of none. A finding that, in view of past bargaining, the systemwide unit is alone appropriate would freeze the bargaining unit for an indefinite period, thereby frustrating the basic objectives of Section 9 (b) of the Act. It should not be overlooked that the joint bargaining agency in this case-the GCC-is not the representative of the employees but was established by the 11 locals to represent them and discharge their functions as the bargaining agents of the employees. The GCC is thus merely an agent of the locals with authority to act for them in bar- gaining. Should all 11 locals, or a majority of them, in the future de- sire to revoke such agency and to bargain separately with the Com- pany (as did the Lowell Local), what would the situation be? If the locals are confronted with a Board ruling that the systemwide unit is alone appropriate, the Company would not be required to deal with any one of the locals unless it could show that it alone represented a ma- jority of the employees throughout the system. Thus, the effect of a finding that the systemwide unit is alone appropriate is to make it vir- tually impossible for any of the locals to engage in separate, direct dealing with the Company, even though all the locals and all the em- ployees of the Company may prefer such direct dealing. Does it in- sure to the employees in this case the fullest freedom in the exercise of their rights to self-organization and collective bargaining to hold that the locals have locked themselves together irrevocably in a systemwide unit which cannot be dissolved, however many of the locals or the employees may desire such dissolution? I think not. It seems to me that the only alternative to such an unpalatable re- sult is to say in the case at bar that any of the constituent locals may withdraw at an appropriate time (i. e., when there is no contract bar) from the systemwide unit and bargain separately for the em- ployees in its division, so long as it continues to represent a majority of such employees. Moreover, apart from the foregoing considerations, there is a spe- cial reason , in my opinion, for finding the Lowell unit appropriate- namely, the fact that the Company had already bargained to an im- passe with the GCC as the representative of the systemwide unit before it accepted the overtures of Local 280. In that respect the instant case is analogous to the Morand case.'9 In that case the Board 19 Morand Brothers Beverage Co., 91 NLRB 409, 417-418, affd. 190 F. 2d 576 (C. A. 7). 1978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that a union had not violated Section 8 (b) (3) (the counter- part of Section 8 (a) (5)) where, after bargaining to an impasse with a long-established multiemployer group, the union sought a separate contract from one of the employers. The Board said, in effect, that, the parties having failed to reach agreement on the basis of the his- toric multiemployer unit, a single-employer unit became appropriate, as such unit was the only feasible basis for further collective bargain- ing.20 So, here, I believe that, as the Company had bargained to an impasse with GCC, and the Lowell unit was the only feasible basis for further collective bargaining, the Board should give less weight to evidence of a systemwide bargaining history than it otherwise would do and it should find the Lowell unit appropriate. Such a view would conform to the overriding policy of the Act to encourage collective bargaining. As, therefore, it is my opinion that the Lowell unit was appropriate when the June 25 contract was signed, I find that such contract did not violate Section 8 (a) (5) and afforded a valid basis for the Com- pany's subsequent refusal on September 2, and thereafter, to negoti- ate with the GCC for a contract covering the Lowell unit. I accord- ingly find no violation of Section 8 (a) (5) by the Company. Nor would I find that the Company's recognition of the Lowell Local on June 25, 1952, violated Section 8 (a) (2) of the Act. Under the Board's Midwest Piping doctrine'21 an employer violates Section 8 (a) (2) when he undertakes to resolve a representation question raised by conflicting claims of competing unions by granting exclu- sive recognition to one of the unions. However, this doctrine has no application here, because the claim of GCC could not and did not, at the time the contract was signed, raise a representation question cog- nizable under the Act, for GCC was not at that time in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act. As the GCC could not, therefore, have raised a representation question by filing a petition with the Board, its naked claim to repre- sent the Lowell employees could hardly be any more effective to raise such a question. Having found that the Company's contract with the Lowell Local was valid, I cannot agree that the Company violated Section 8 (a) (3) or any other provision of the Act by insisting that the four in- definitely suspended Lowell employees appeal their suspensions through the Lowell Local, and by failing to reduce the term of their 40 See Intermediate Report herein , p. 1994 . The Trial Examiner sought to distinguish the Morand case from the instant case on the ground that there the historical unit was" multiemployer rather than multiplant and, in turning from joint to separate bargain- ing, the union in Morand was merely doing what the employers in that case would have been free to do under settled Board policy. However , while the Board in its opinion in Morand referred to this consideration , there is nothing in the decision which, in my opinion, forecloses the extension of the principle of the Morand case to the instant case. ' Midwest Piping d Supply Co., Ino., 63 NLRB 1060. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1979 suspensions in the absence of such an appeal. In directing the em- ployees to invoke the aid of the Lowell Local, the Company was merely requiring that they follow the grievance procedure prescribed in a contract legally binding on all parties concerned . So far as appears from the record, except in the case of Kelley, none of these suspended employees made any effort to process their suspension through the contractual grievance machinery. Even in the case of Kelley, there is no evidence that the Company knew that the Lowell Local would refuse to process his case unless he abandoned the GCC. In the absence of such evidence, there is no basis for charging the Company with an unlawful motive in requiring the suspended em- ployees to resort to a contractual remedy which, so far as it knew, was uniformly available to all the Lowell employees. As I agree that the initial suspension of these four employees was not discrimina- tory, and as it was not unlawful for the Company to refuse to reduce such suspensions until the employees had filed an appeal in the cus- tomary manner through the channels prescribed by the contract, I would dismiss the allegations of the complaint as to these employees. Appendix NoTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE wiLL bargain collectively on request with The General Conference Committee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, AFL, as the exclusive representative of all our employees in the following appropriate collective-bargaining unit, regardless of the operating division to which they are as- signed and specifically including those employed in the Lowell Division, and, if an understanding is reached, we will embody such understanding in a signed agreement. The appropriate col- lective-bargaining unit is : All bus operators and collectors and all employees in the mechanical and miscellaneous departments, exclusive of office and clerical employees, guards, and supervisors as defined in the Act. WE wmL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and we will make them whole for 1980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any loss of pay suffered by reason of our discrimination against them : Daniel E. O'Neill Frederick J. McNamara Ernest Z. Marcotte John Crow Dustan B. Kelley Ralph J. McCarthy WE WILL withdraw and withhold recognition from Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, or its suc- cessor, Transit Workers Local No. 1, as the representative of any of our employees for the purposes of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment. WE WILL NOT perform or give effect to our contract of June 25, 1952, with Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of Amer- ica, which we permitted Transit Workers Local No. 1 to assume, or to any modification, extension, supplement, or renewal thereof or to any superseding agreement with such organizations. WE WILL NOT discriminate in any manner against any employee because of charges filed against us under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist The General Conference Committee of Boston, any labor organization affiliated therewith, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of The General Conference Com- mittee of Boston, or any labor organization affiliated therewith, or any other labor organization, except to the extent that this right may be affected by a union-security agreement authorized in Section 8 (a) (3) of the Act. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, 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. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1981 Intermediate Report STATEMENT OF THE CASE Upon charges filed by Local Divisions 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, herein called the Association, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint, dated December 22, 1952, in Case No. 1-CA-1287 against Eastern Massachusetts Street Railway Company, herein called the Company, alleging that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Company and the Association and upon Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, which was a party to a contract with the Company executed on June 25, 1952, and which is herein referred to variously as the Lowell Local, the Transit Workers, and the Intervenor. On January 13, 1953, the Company filed an answer to the complaint in Case No. l-CA-1287. However, before proceeding to a hearing on this complaint, the General Counsel determined that the General Conference Committee of Boston, herein called the GCC, with which the above-named locals were affiliated, was a labor organization whose compliance with the affidavit and filing requirements of the Act was a necessary prerequisite to the issuance of a complaint. The GCC was not in compliance at that time. Accordingly, the General Counsel withdrew the complaint in Case No. 1-CA-1287, but did not dismiss the charges. Thereafter, charges alleging that the Company had engaged in unfair labor practices in violation of the Act were filed by the General Conference Committee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, herein called the GCC, in Case No. I-CA-1390, and by Douglas Holder, Lynwood M. Hyde, Donald M. Gagnon, Raymond F. McCarthy, Francis T. Shannon, and Ernest Z. Marcotte, herein called the Complainants, in Case No. 1-CA-1374. On January 30, 1953, the Regional Director for the First Region issued an order consolidating Cases Nos. 1-CA-1390 and I-CA-1374 and a notice of hearing upon a complaint in such cases, issued on January 30, 1953, by the Regional Director for the First Region in behalf of the General Counsel of the National Labor Relations Board against the Company. The complaint alleged that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), (4), and (5) and Section 2 (6) and (7) of the Act. Copies of the charges, complaint, order consolidating cases, and notice of hearing were duly served upon the Company, the GCC, the Complainants, and the Intervenor. Upon charges filed by Leroy F. Lapham and Lawrence F. Clark, herein called the Charging Individuals, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region, issued (1) a complaint, dated February 4, 1953, in Case No. 1-CA-1335 against the Company, alleging that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act, and (2) a complaint, dated February 4, 1953, in Case No. 1-CB-213, against Local 235, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, herein called the Brockton Local, alleging that the Brockton Local had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) and (2) and Section 2 (6) and (7) of the Act. On February 4, 1953, the Regional Director issued an order consolidating Cases Nos. 1-CA-1335 and 1-CB-213 and a notice of hearing upon the complaints in such cases. Copies of the charges, complaints, order con- solidating cases, and notice of hearing were duly served upon the Company, the Brockton Local, and the Charging Individuals. Pursuant to notice, a hearing was held from February 16 to March 24, 1953, at Boston, Massachusetts, before Frederic B. Parkes, 2nd, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the AFL Unions, the Company, and the Intervenor were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the outset of the hearing, the Trial Examiner granted the motion to intervene filed by Transit Workers Local No. 1, which was successor to Local Division 280, 1982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, herein called the Lowell Local. The Company's motion for specifications with respect to certain allegations of the complaint in Cases Nos. 1-CA-1390 and 1-CA-1374 was granted in part and denied in part. The Company also moved for the consolidation of Cases Nos. l-CA-1335 and 1-CB-213 with Cases Nos. l-CA-1390 and 1-CA-1374. The General Counsel and the AFL Unions opposed the motion. The motion was denied at that time. Early in the hearing, the General Counsel filed a motion to amend the order consolidating Cases Nos. 1-CA-1390 and 1-CA-1374, issued by the Regional Director on January 30, 1953, and the notice of hearing and the complaint in such cases so as to consolidate with those cases Case No. 1-CA-1287, to show that such further consolidated and amended complaint was based upon the charges filed by the Association in Case No. 1-CA-1287, and to add certain allegations to the complaint issued on January 30, 1953, in Cases Nos. 1-CA-1390 and 1-CA-1374. The Company objected to the motion on various grounds. The motion was granted., Later in the hearing, the General Counsel upon further consideration withdrew his objections to the Company's motion for the consolidation of Cases Nos. 1-CA-1335 and 1-CB-213 with the other cases. The AFL Unions at this time did not oppose such consolidation. The Trial Examiner granted the Company's motion for the consolidation of Cases Nos. 1-CA-1335 and 1-CB-213 with the other cases in the instant matter. During the course of the hearing, motions by the General Counsel to dismiss certain allegations of the complaint that the Respondent had discriminated in regard to the hire and tenure of employment of various employees in violation of both Section 8 (a) (3) and (4) were granted without objection. At the close of the General Counsel's case-in-chief, the Trial Examiner granted a motion by the General Counsel to amend the complaint so as to allege that the Company had engaged in conduct violative of Section 8 (a) (4) of the Act in respect to employee Patrick Cox. With respect to the unfair labor practices, the ultimate allegations of the com- plaint, as amended, in Cases Nos. 1-CA-1390, l-CA-1374, and 1-CA-1287 were that the Company: (1) On or about September 2, 1952, refused to bargain collec- tively with the GCC, although the GCC had requested that the Company bargain with it as the statutory representative of a majority of the Company's employees in an appropriate bargaining unit composed of all bus operators and collectors employed by the Company and all employees of its mechanical and miscellaneous departments, exclusive of office and clerical employees, guards, and supervisors; (2) on specified dates between August 14, 1952, and January 23, 1953, discrimina- torily discharged or indefinitely suspended employees Frederick J. McNamara, Dustan B. Kelley, John Crow, John McCabe, Daniel E. O'Neill,2 Douglas Holder, Lynwood M. Hyde, Ralph J. McCarthy, and Ernest Z. Marcotte and thereafter refused and failed to reinstate them; (3) beginning on or about July 27, 1952, on several occasions did discriminatorily suspend from employment Archie MacLean, Patrick Cox, and Martin E. Halloran; (4) discriminated against the employees named in (2) and (3), above, because they adhered to or assisted the GCC or Amalgamated or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (5) discriminated against O'Neill and Cox for the further reason that they filed charges or charges on their behalf were filed under the Act; (6) from July 27, 1952, to the present has dominated, assisted, contributed to the support of, and interfered with the administration of, "Insofar as the Company's objections to the amendment related to a revival of the charges in Case No. 1-CA-1287, upon which a complaint had earlier been issued and then withdrawn because the GCC was not in compliance with the filing requirements of the Act, see N. L. R. B. v. Dant d Russell, Ltd., 344 U. S 375; L. G. Everist, Inc., 103 NLRB 308. See also Trial Examiner Ralph Winkler's Intermediate Report in The Magee Carpet Company, 91 NLRB 103, and the Board's affirmance of the rulings of the Trial Examiner on similar issues. However, cf. N. L. R. B. v. Atlanta Metallic Casket Company, 205 F. 2d 931 (C. A. 5). On its facts, the latter case is distinguishable from the instant pro- ceeding. To the extent that the Company's objections related to the addition of further allegations that the Respondent engaged in conduct violative of Section 8 (a) (3) of the Act, see Cathey Lumber Company, 86 NLRB 157, and the succeeding line of cases. 2 It is hoped that the correct spelling of names has been followed in this report. There are variations in the spelling of some names in the record . Thus, the names of Crow, MacLean, O'Neill, and Casserly are sometimes spelled Crowe, McLean, O'Neil, and Casser- ley. The spelling used in this report is that given by the official reporter at the time these individuals testified as witnesses. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1983 the Lowell Local, in that the Company (a) dealt and negotiated with it as the exclusive representative of the Company's employees in its Lowell Division in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment while the GCC was such representative of these employees together with the other employees in the unit set forth above, (b) executed a collective-bargaining contract with the Lowell Local as the statutory representative of the Company's employees in its Lowell Division in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment while the GCC was such representative of these employees together with the other employees in the unit set forth above, (c) observed, gave effect to, and administered such contract while the GCC was the statutory representative of the employees in the Lowell Division together with the other employees in the unit set forth above, (d) refused employment to employees unless they joined or assisted or supported the Lowell Local, (e) discharged em- ployees because they refused to join or assist or support the Lowell local, and (f) threatened employees with reprisal or loss of employment unless they joined, assisted, or supported the Lowell Local; (7) beginning on or about June 27, 1952, (a) threatened its employees with reprisals, loss of employment, or loss of employ- ment benefits if they continued to adhere to the Amagamated or the GCC, (b) asserted that it would support and did support candidates for office in local unions affiliated with the Amalgamated who opposed the policies of said Amalgamated or GCC, (c) asserted that it would refuse and did refuse employment to employees if they continued to oppose the policies of the Lowell Local, (d) disciplined em- ployees with greater severity because they continued to adhere to the GCC or Amalgamated, and (e) discriminatorily discharged the following 19 employees because they adhered to or assisted the Association or Amalgamated or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8 (a) (1) of the Act: Archie T. MacLean, Frank Shannon, Frederick J. McNamara, Daniel E. O'Neill, John R. Crow, Donald M. Gagnon, John J. McCabe, Ralph J. McCarthy, J. Lawrenson, P. Fell, T. Crowley, J. Barbieri, H. Heafy, T. Kilmartin, O. Ange, Patrick Cox, Fred R. Leibold, Dustan B. Kelley, and Raymond McCarthy. The complaint further alleged that by the foregoing conduct the Company had engaged in violations of Section 8 (a) (1), (2), (3), (4), and (5) of the Act. Thereafter, the Company and the Intervenor duly filed answers, admitting certain allegations . However, the Company denied that it had engaged in any of the alleged unfair labor practices and advanced certain affirmative defenses to the com- plaint's allegations. The Intervenor denied that the Company had engaged in vio- lations of Section 8 (a) (2) and (1) in respect to its relationship to the Intervenor, joined the Company in denying the complaint's allegations as to the appropriate unit and the GCC's majority status, and alleged certain affirmative defenses to the complaint's allegations. - With respect to the unfair labor practices, the complaints in Cases Nos. 1-CA-1335 and 1-CB-213 alleged that: (1) About October 20, 1952, after the termination of a strike of its employees, the Company failed to reinstate Leroy F. Lapham and Lawrence F. Clark to their former or substantially equivalent positions, pursuant to the request of the Brockton Local, at a time when there was in existence no valid collective-bargaining agreement between the Company and the Brockton Local requiring membership in the latter as a condition of employment; and (2) since about October 20, 1952, the Brockton Local has caused and/or attempted to cause the Company to discriminate against its employees and prospective employees in regard to hire or tenure of employment, and other terms or conditions of employment by (a) requiring the discriminatory treatment of Clark and Lapham on or about October 20, 1952, and (b) thereafter compelling and continuing to compel the Com- pany to refuse to reinstate Clark and Lapham to their former or substantially equiva- lent positions or employment, which the Company was ready and able to do, in violation of Section 8 (a) (3) of the Act, at a time when there was in existence no valid collective-bargaining agreement between the Brockton Local and the Com- pany requiring membership in the Brockton Local as a condition of hire or employ- ment . The complaints alleged that by the foregoing conduct the Company had engaged in violations of Section 8 (a) (1) and (3) of the Act and the Brockton Local had engaged in violations of Section 8 (b) (1) and (2) of the Act. The Company and the Brockton Local each filed an answer, admitting certain allegations of the complaint but denying the commission of any of the alleged unfair labor practices. At the conclusion of the hearing the Trial Examiner granted the General Counsel's motion to conform the pleadings to the proof in all formal mat- ters such as names and dates . Counsel for the Company, the AFL Unions, and 1984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel briefly stated their respective positions as to several issues at the close of the hearing , but otherwise waived the opportunity to engage in exten- sive oral argument . Thereafter counsel for the Company , the AFL Unions, and the General Counsel each filed a brief with the Trial Examiner. On May 19, 1953, counsel for the General Counsel, the Company, and the Intervenor filed with the Trial Examiner a stipulation whereby they indicated their agreement to a stipulation proposed upon the record . The stipulation is received into evidence , has been marked as Trial Examiner 's Exhibit No. 1, and has been inserted in the official exhibit file. On August 20, 1953 , the Trial Examiner issued an order correcting transcript. Upon the entire record in the case, and from his observations of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Eastern Massachusetts Street Railway Company , a Massachusetts corporation with its principal office at Boston , Massachusetts , is engaged in the transportation of passengers by motorbus in and between communities within the Commonwealth of Massachusetts and in and between communities outside the Commonwealth of Massachusetts . In the course of its operations , the Company provides public bus transportation service for approximately 75 cities and towns within the Common- wealth of Massachusetts and carries a substantial number of passengers to and from work for firms engaged in interstate commerce . Its gross revenues are currently running at an annual rate of about $9,000 ,000, of which a negligible percent is derived from furnishing interstate bus service on a daily trip from Taunton , Massa- chusetts , to Providence , Rhode Island, and from charter rights which cover Massa- chusetts , Connecticut , New Hampshire , and Rhode Island and on which the Company runs infrequent service out of Massachusetts . The Company admits that it is a substantial user of gasoline , tires, and buses, some of which are purchased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts . The Company admits and it is found that the Company is engaged in commerce as defined by the Act. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL, is a labor organization admitting employees of the Company to membership. Local Divisions 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, Amal- gamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL, are individual labor organizations admitting employees of the Com- pany to membership. Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL (the Lowell Local) was, and its suc- cessor, Transit Workers Local No. 1, is, a labor organization admitting employees of the Company to membership. The General Conference Committee of Boston , affiliated with Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL, is a labor organization participated in by employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Cases Nos. 1-CA-1390, 1-CA-1374, and 1-CA-1287 1. The refusal to bargain ; illegal support and assistance to the Lowell Local; inter- ference, restraint , and coercion a. The setting; general statement of the facts giving rise to the proceeding The Company operates a bus transportation system within and between a number of towns and cities which, generally speaking , are in the vicinity of Boston, Massachu- setts. The Company 's operations are divided into 11 divisions and there are separate locals of the Amalgamated at each division . For some 40 years, the Company and its predecessors have had a contractual relationship with the Association as the collective- EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1985 bargaining representative of the Company's employees . In October 1951 , the Com- pany and the Association commenced negotiations for a new agreement but reached an impasse in respect to proposed changes in the pension plan. When the Company refused to arbitrate this issue, the Association launched a strike which commenced on March 10, 1952. On June 22 , 1952, most of the employees of the Company 's Lowell Division aban- doned the companywide strike of the Association and returned to work. On June 25, 1952, the Company and the Lowell Local executed a collective -bargaining contract. Two days later 19 employees of the Lowell Division who had not abandoned the strike were "suspended indefinitely by the Company ." After negotiations , a referen- dum by the remaining strikers to return to work, and agreement by the Company to reinstate the 19 Lowell employees , the strike ended and the employees returned to work on July 15, 1952. Meanwhile , the Amalgamated had appointed a trustee to take charge of Local Division 280 and ultimately nearly all the membership of the Lowell Local withdrew from the Amalgamated . At this point , it might be appropriate to emphasize the fact, hereinafter more fully detailed, that Local Division 280, Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America , AFL, refers to two groups of employees in the Lowell Division , each group constituting a labor organization . The term "Lowell Local" refers to the group which returned to work on June 22 and executed a separate contract with the Company on June 25 . The term "Local Division 280" refers to the group which maintained their adherence to the Amalgamated , the Association , and the GCC. In July 1952, and thereafter , the Company took the position that its contractural relationship with the Association in the past was based upon individual contracts between the Company and each of the 11 Locals. The Company offered to sign a contract with the remaining 10 locals, exempting the Lowell Local . The Association argued that in the past a single contract had covered the Company 's employees in all 11 divisions on a systemwide basis, urged the Company to execute a contract with the Association covering the employees of all divisions , including Lowell , and refused to sign a contract for the employees of 10 divisions . The principal issue thus posed is whether the appropriate unit was systemwide in scope and whether the Company violated the Act by refusing to bargain with the Association on the basis of a bargain- ing unit systemwide in scope. In other words, the first issue to be determined is the scope of the appropriate unit. b. The appropriate unit (1) Contentions of the parties The complaint alleged that all bus operators , collectors , and employees of the mechanical and miscellaneous departments employed in the Company 's 11 divisions, excluding office and clerical employees , guards, and supervisors as defined by the Act, constitute an appropriate unit. The Company contends that the foregoing employees constitute 11 separate appropriate units, 1 for each of the Company 's divisions. In sum, the issue is whether the appropriate unit should be determined upon a system- wide or divisionwide basis. (2) The Company's operations The Company 's divisions fall into two groups: those north of Boston and those south of Boston . The principal office and headquarters of the Company, however, are in Boston . Prior to 1911 , the transportation system of the Company was operated by two separate companies , namely, the Boston and Northern Street Railway Com- pany, which operated the divisions north of Boston , and the Old Colony Street Rail- way Company , which operated the divisions south of Boston . In 1911 these companies were consolidated under the name of the Bay State Street Railway Com- pany , which operated the system until it went into a receivership in 1917 . In 1919 "it emerged from receivership in the form of a new Company, the Eastern Massachu- setts Street Railway" Company. The northern group of the Company's divisions consists of (1) the Lynn Division which is 8 or 9 miles from Boston , ( 2) the Salem Division which is about 5 or 6 miles northeast of Lynn, ( 3) the Melrose Division which is approximately 10 miles north of Boston , ( 4) the Lowell Division which is some 25 or 26 miles northwest of Boston, (5) the Lawrence Division , which is about 25 miles north of Boston , and (6) the 338207-55-vol. 110-126 1986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haverhill Division which is approximately 7 or 8 miles east of Lawrence. The southern group embraces (1) the Quincy Division which is 7 or 8 miles from the center of Boston, (2) the Brockton Division which is about 9 miles southwest of Quincy, (3) the Taunton Division which is approximately 7 miles southwest of Brock- ton, and (4) the Fall River Division which is some 18 miles southwest of Taunton. The 11th division is Norwood which is also southwest of Boston but whose lines are not connected to the other southern divisions. Throughout its operations the Com- pany employs between 1,700 and 1,800 employees. The Company's central office in Boston is divided into three departments, namely, general administrative, purchasing, and legal departments. These departments em- ploy 26 or 27 employees, including the officers of the Company. The general ad- ministrative department includes the president and general manager, the assistant general manager, the treasurer, and various assistants to these officials. An execu- tive committee, consisting of the president of the Company and between 3 and 5 other members designated by the board of directors, manages the Company during inter- vals between the meetings of the board of directors. In Boston, records for the Company's entire operations relating to such matters as finances, personnel, accidents, purchases, and labor relations are kept. Although pay- rolls for each division are prepared by its local manager, the paychecks are made out in Boston , where the Company's only machine for writing paychecks is located, and are signed by the Company's treasurer and the local manager. The Company's re- ceipts in each division are deposited in a local bank and the paychecks for employees of that division are drawn upon such account of the Company. The payroll records are retained by the local managers but they submit to the Boston office a weekly analysis thereof. Each division transmits also a monthly income statement to the Boston office, where central financial records are kept and where annual income taxes of the Company are prepared. Although local division managers have au- thority to make certain purchases, such as gasoline, there is a limit on the amount of such purchases which they may make; and major items, such as the purchases of buses, are made by the central purchasing department in Boston. The transporta- tion department provides experts to assist division managers in the preparation of bus schedules and is responsible for the proper coordination of schedules throughout the system. In each of the 11 divisions, the principal supervisor is the manager. The larger divisions have an assistant manager or superintendent, a garage foreman, an assistant garage foreman, a claim agent, and an auditor in charge of employees performing the clerical operations. In the Haverhill and Taunton Divisions, the supervisory per- sonnel consists of the manager and two street inspectors. In the Norwood Division, the supervisors are the manager and the auditor. Since Haverhill and Taunton have no clerical employees, the clerical work for those divisions is performed by the Lawrence and Brockton Divisions, respectively. A garage in each division houses the buses of that division and performs certain maintenance work upon them. In addition, the Company operates at Campello, in the Brockton Division, a general shop where buses from all divisions are brought for more serious repairs, such as rebuilding motors and complete reconditioning of buses. Buses are brought to the Campello shop and reclaimed by personnel of the division to which the bus is assigned. When a bus from one division breaks down while operating on a route in the territory of another division, it is replaced by a bus from the latter division and may be repaired in the garage of the latter division. Each of the adjacent divisions has "historical" boundaries which, according to As- sistant General Manager Wilkinson, went "back to street car days, that [were] used as the basis for the determination of the amount of work that would be performed by the employees within that divisional limit." The record reveals that the Company's bus operations among its several divisions are integrated to a considerable degree, since it provides transportation service not only within a local division but between divisions. Thus, bus lines run from one division into and through other divisions over routes which connect with and cross each other, and which in some instances involve identical routes operated by busdrivers assigned to different divisions. For example, the Company operates one route on which a bus runs from Fall River through Taunton into Boston. Another direct interdivisional schedule is a bus running from Lowell through Melrose to Boston. A line from Salem runs through the Lynn division directly to Boston. Buses from Taunton connect at Brockton with another bus bound for Boston. There are numerous other examples of the coordination of bus schedules of two or more divisions so as to enable passengers to transfer and reach their ultimate destination in a division different from the one EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1987 in which their trip originated. However, there are no lines which run from north- ern divisions through to southern divisions. Further integration among the divisions is revealed by those schedules for trips between two cities where the buses are operated by drivers from one division and in part by drivers from another-as in the run between Salem and Lawrence, where the buses are operated by drivers from both the Lawrence and the Salem divisions. In addition, on various routes drivers from two divisions exchange buses so that each may end the day in his own division. In one instance, a driver ends his run of the bus and is relieved by a driver of another division without an exchange of buses. There does not appear to be a considerable amount of permanent transfer of employees from one division to another. However, instances of such transfers were cited in the past, the most recent being the shift of a group of maintenance employees from the Melrose Division to the Campello shops in the Brockton Divi- sion . When these transfers of work and employees have been effected, the em- ployees carry over their seniority to the new division, as provided in the collective- bargaining agreement. Assistant General Manager Wilkinson described the divisional seniority as established by contract as follows: There are three separate seniority categories. The seniority in the operating department confines itself to operators; and seniority in the divisional garages, that only involves mechanics and maintenance men engaged in the divisional maintenance of equipment. If there happened to be a shop in that particular division, there would be separate seniority for the men in the shop that wasn't transferable to either of the other two departments. Under the collective-bargaining agreement, wages and other terms and conditions of employment, including hours of work, guarantees, insurance, pensions, holidays, vacations, and allowances, are uniform throughout the system. The general labor relations policy for the Company is formulated in its Boston headquarters. The assistant general manager has among his duties those of per- sonnel director for the Company. He advises the Company's officials on labor rela- tions policy and serves on the Company's bargaining committee in contract negotiations with the Association. Assistant General Manager Wilkinson testified that "labor relations" is his "chief function" and that all divisional managers report to him concerning such matters. The Boston office exercises a considerable amount of control over the hiring of new bus operators. When additional drivers are needed. in a division, the local manager informs the Boston office and a subordinate of the assistant general man- ager-and sometimes Wilkinson, himself-goes to the division and gives applicants certain standardized aptitude tests which emanate from the Boston office. With the assistance of the local manager, he reviews the tests, interviews applicants passing the tests, and determines whom to hire. The latter determination is subject to one exception, however: under the Company's rules, the hiring of employees at a salary of more that $50 a week must be approved by the Company's executive committee in Boston. All employees throughout the system are issued the same rule book which is formu. lated in the Boston office. All divisions except Norwood have regularly assigned starters or inspectors who report to the local manager any infractions of the rules by operators. If the operator is from another division, the local manager in whose division the infraction occurred relays the information to the operator's division manager. In addition, the Company employs a system of secret spotters or safety men whose headquarters are in the Boston office but who are assigned throughout the system without regard to divisional lines. Division managers initially impose discipline for infraction of rules, although on one occasion, due to the somewhat unusual circumstances of the case, Assistant General Manager Wilkinson notified an employee in one of the divisions of his discipline. Since the managers of "the local divisions are pretty much their own bosses," there is not complete uniformity among them in the type of discipline meted out for the infraction of the rules. However, under the grievance procedure, an employee who has been disciplined may, if not satisfied with the decision reached on his grievance by his local manager, appeal his case to the assistant general manager and ultimately to the Company's executive committee, and it appears that at these levels a certain degree of uniformity or standard of discipline is achieved by the modification or revocation of the initial discipline. 1988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Collective-bargaining history (a) The local divisions of the Association; and The General Conference Committee of Boston Corresponding to each division of the Company is a local division of the Asso- ciation, of which employees are members, as follows: Local Division Division of Company of Association Fall River--------------------------------------------------- 174 Brockton ---------------------------------------------------- 235 Lynn------------------------------------------------------- 238 Melrose----------------------------------------------------- 240 Taunton---------------------------------------------------- 243 Salem------------------------------------------------------ 246 Quincy----------------------------------------------------- 253 Lawrence--------------------------------------------------- 261 Lowell----------------------------------------------------- 280 Norwood--------------------------------------------------- 373 Haverhill--------------------------------------------------- 503 It appears that each of the locals has a charter from the Amalgamated, bylaws, and officers. Dues for each local are checked off by the Company and paid to the local's financial secretary. Each local pays its per capita tax to the International. Section 84 of the Amalgamated's constitution and general laws contains the following provisions: The International Association and the [Local Division] in which a member holds membership shall be his exclusive representative for the purpose of col- lective bargaining as to wages, hours, working conditions, pensions, union se- curity and check-off, and other conditions of employment, and for the negotia- tion and execution of contracts with employers pertaining to such matters. Both the International Association and the [Local Division] in which a mem- ber holds membership are by him irrevocably authorized to act for him before any committee, board of arbitration or arbitrator, court or other tribunal in any matter affecting his status as employe and to represent and bind him in the presentation, prosecution, adjustment and settlement of all grievances, com- plaints, or disputes arising out of his employment relationship. The grievances, complaints or disputes of members shall be taken up by and through the [Local Division] of which they are members for presentation, prosecution, adjustment or settlement in all cases of grievances, complaints or disputes with the respective companies, and can be taken up by the Interna- tional Association only by the request of the [Local Division] as specified in these laws. As appears hereinafter the foregoing provisions are not necessarily inconsistent with those of section 168 of the constitution and general laws, which reads as follows: Where members of the [Amalgamated Association of Street, Electric Rail- way and Motor Coach Employees of America] belong to different Local Divi- sions and are employed by the same company they shall negotiate contracts or agreements jointly and if strike action is necessary, they shall take a strike vote jointly. Pursuant to the above provisions, the locals organized a Joint Conference Board around 1910 for the purpose of representing them jointly in contract and other negotiations with the Company's predecessors, and in addition, the locals employed a business agent to assist them in their negotiations with the Company. Upon a change in the Company's operations and a reduction in number of personnel, the method for joint negotiations on the part of the locals was reorganized by the inter- national president of the Amalgamated; and The General Conference Committee of Boston, hereinafter called the GCC, was established. It appears that its organ- ization and operation was in essence the same as that of the Joint Conference Board. The GCC is composed of a delegate from each of the locals-in practice, the president of the local-and a delegate representing the mechanical and miscellaneous employees in all divisions, who is annually elected by a vote of all of the mainte- nance employees of the Company. The 12 delegates who compose the GCC an- nually elect from their group a chairman, a vice chairman, and a secretary. In addition, a Wage Committee is chosen from among the delegates for the purpose EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1989 of conducting collective-bargaining negotiations for a contract with the Company. By virtue of their offices, the chairman and secretary of the GCC and the mechani- cal delegate are automatically members of the Wage Committee. From their mem- bership, the delegates choose another to serve on the Wage Committee.3 In negotiating the annual contract between the Company and the Association, the following procedure has been followed: Shortly before the expiration of the contract, each local submitted to the GCC changes the local's membership desired in the contract . The GCC considered all changes suggested by the 11 locals and rejected those it deemed unimportant or inappropriate and drafted the contract demands to be served upon the Company. Thereafter, the Wage Committee, on behalf of the GCC, conducted the negotiations with the Company. During nego- tiations, the Wage Committee referred to the GCC for consideration and advice proposals of the Company. Sometimes, upon the decision of the GCC, these pro- posals of the Company were submitted to the membership at large for their approval or rejection, which was expressed through the medium of a ballot counted on a systemwide and not a divisional basis. The Wage Committee advised the GCC of the progress of the negotiations and the delegates to the GCC in turn relayed this information to the locals. Upon the conclusion of negotiations for an agree- ment by the Company and the Wage Committee and upon the GCC's approval of such agreement, the proposed agreement was submitted to the locals for ratifica- tion by their membership by ballots counted on a systemwide and not divisional basis. If during the course of negotiations (or at any other time) the GCC deter- mined that strike action was necessary in order to enforce its demands, a strike vote was conducted among the membership in all divisions and their ballots were counted on a systemwide basis. The same method was followed in determining to end such an authorized strike. An international officer of the Amalgamated has participated in all contract- negotiating sessions. In these conferences, the Company has been represented by a committee comprised of the assistant general manager , counsel , president and general manager, and other individuals not identified in the record. It does not appear that any of the Company's division managers served on the committee. Funds to defray the expenses of the GCC are obtained by assessment levied upon the membership of the locals. The Company deducts these assessments from em- ployees' pay through a checkoff arrangement and until 1950 it uniformly paid the assessments thus checked off to the secretary of the GCC. Since 1950 the Company has paid the checkoff assessments to the locals, which in turn remit them to the GCC. The record reveals that in the past incidents have occurred and dissension has arisen among the various locals reflecting upon the nature of the GCC as the instru- ment of the 11 locals for joint action. Thus, between 1943 and 1945, there were 4 strikes in the Melrose Division, 3 in the Lynn Division, 4 in the Salem Division, 1 in the Lawrence Division, 1 in the Quincy Division, 3 in the Taunton Division, and 1 in the Fall River Division which were confined to employees of 1 or more divisions but which were not systemwide. These strikes were not approved by the GCC and did not have the sanction of the Amalgamated. The latter accordingly paid these strikers no strike benefits. In 1945 presidents of the Fall River, Melrose, Salem, and Quincy Locals notified the GCC that their locals were seceding from the GCC because of their dissatisfac- tion as to the manner of apportioning delegates to the Wage Committee. Within a short time, however, John F. O'Brien, first international vice president of the Amalgamated, consulted with the presidents of the four dissident locals and the dispute was resolved within a short time by giving the locals with a larger member- ship a greater representation on the Wage Committee and by the election of the president of Quincy to the post of chairman of the GCC and of the Wage Com- mittee. Minutes of the Lynn Local reveal that in January 1953 the membership passed a motion to "notify the International office that we shall withdraw from the [GCCI until such time as they make changes to our satisfaction." However, the record does not reveal whether the Lynn Local effectuated its withdrawal from 3 From the contracts introduced into evidence , it appears that the Wage Committee consisted of three members until 1941 . Possibly the mechanical delegate was not a mem- ber of the committee until then . The bylaws of the GCC in effect from 1923 until 1946 provide for a Wage Committee of three-the chairman , secretary , and a third member chosen by the delegates. However, the practice appears to have arisen in 1941 of mak- ing the mechanical delegate an ex officio member of the Wage Committee . The bylaws under which the GCC operated after 1946 provide for his inclusion on the Wage Committee. 1990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the GCC. The GCC was never informed of such action and in February 1953 the delegate from the Lynn Local participated in a meeting of the GCC. (b) The contracts and their enforcement It appears that in 1906 the Association negotiated the first contract for the employees in the transportation system presently operated by the Company and that another contract was executed in 1910. The 1910 contract, according to the credible and uncontraverted testimony of International Vice-President O'Brien, in a single agreement covered the employees of the entire system which was then operated by two separate companies, as set forth above. Copies of contracts between the Company and the Association executed between 1924 and 1950 were introduced into evidence. These contracts reveal that until 1948 the Amalgamated was a signatory to the contracts, and the testimony was that such was the practice between 1906 and 1924. The introductory provisions of the contracts executed between 1924 and 1947, inclusive, are substantially identical and read as follows in the 1947 agreement: Entered into by and between the EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, its successors and assigns, hereinafter called the "Com- pany", party of the first part, and the AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA 4 . . and the several divisions thereof, numbered respectively, 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, 503,5 and hereinafter called the "Association", which term shall include both the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America and each of the several divisions thereof enumerated above, party of the second part. The concluding paragraphs of these agreements are the same with but little variance from each other and are in the following form: IN WITNESS WHEREOF said Eastern Massachusetts Street Railway Company has caused this agreement to be signed by [the named chairman of its board of public trustees], hereunto duly authorized, and the said Association has caused the same to be signed by [a named official of the Association] and the said local divisions have generally caused the same to be signed by a committee consisting of [the named Wage Committee of the GCC], duly selected for that purpose by said divisions, all hereunto duly authorized this [specified date]. Then follow the signatures of the representatives of the contracting parties there- tofore specified. The signatures appearing on behalf of the various locals of the Association were headed by that of the chairman of the Wage Committee and followed by the signatures of the remaining members of such committee. Changes in the form of the foregoing provisions were made in the 1948 contract since the Amalgamated ceased being a signatory party to the contracts at that time. The contracts executed in 1948, 1949, and 1950, bear the following introductory provisions: Entered into by and between the EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, its successors and assigns, hereinafter called the "Company", party of the first part, and local divisions numbered respectively, 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, of the AMALGA- MATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA .. , hereinafter called the "Association", party of the second part. The concluding paragraphs of these contracts are identical in form with the fol- lowing from the contract executed in 1950: IN WITNESS WHEREOF said Eastern Massachusetts Street Railway Company has caused this agreement to be signed by John I. Donovan, President and Gen- eral Manager, hereunto duly authorized, and the said local divisions have gen- erally caused the same to be signed by a committee consisting of Norman Branden , Chairman, John H. Cullen, George W. Jiannetti, and Robert Jeffrey, * During this period of time, the name of the Amalgamated was changed and the earlier contracts bear Its original name. 5 Prior to 1947 there were more locals ; it appears that in the reorganization and con- solidation of its operations , the Company reduced the number of its operating divisions and consequently locals of the Amalgamated corresponding to such divisions were abolished. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1991 duly selected for that purpose by said divisions, all hereunto duly authorized this 14th day of June, 1950. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY. By John I. Donovan President and General Manager LOCAL DIVISIONS 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, 503. By Norman Branden, Chairman John H. Cullen George W. Jiannetti Robert Jeffrey As was the case in the earlier contracts, the representatives signing these contracts in behalf of the locals were the Wage Committee of the GCC. The contracts executed in 1948, 1949, and 1950 contain the following provisions relating to union security and recognition: All present employes covered by this Contract shall become members of the Association not later than thirty (30) days following its effective date and shall remain members as a condition precedent to continued employment. This section shall apply to newly hired employes thirty (30) days from the date of their employment with the Company. The foregoing section shall become effective after certification by the National Labor Relations Board issued in accordance with Section 8 (a) (3) of the National Labor Relations Act as amended. The Company recognizes Divisions numbered 174, 235, 238, 240, 243, 246, 253, 261,' 280, 373, and 503 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America as the sole and exclusive bargaining agent of all employes in the classifications listed in Section 16 and 17 of this Contract .7 The employees referred to in sections 16 and 17 of the contract are all bus oper- ators and collectors and all employees of mechanical and miscellaneous departments. In respect to grievance procedures, the following provisions from the 1950 con- tract are contained, in substance with little material variance in language, in the contracts dating back to 1924: (1) When any employee who is a member of the Association has been sus- pended or discharged and his division of the Association feels that an injustice has been done him, or when a division of the Association has any other grievance affecting that division only, the division shall have the right to take the matter up through its officers with the division manager, if it applies to a person in the manager's organization, and with the general foreman at the Chelsea Shop or the Campello Shop, if the man is employed at one of these places. If a satisfactory adjustment cannot be reached with the manager, the division of the Association shall have the right to appeal the case to the Com- pany's Personnel Assistant to the General Manager [this position is now termed Assistant General Manager], whenever the man involved is a member of the manager's organization. If the man involved is an employee at the Chelsea Shop or the Campello Shop, the division of the Association shall have the right to appeal the case to the head of the department and then to the Company's Personnel Assistant to the General Manager. (2) As to general matters, they may either follow the same procedure as taken in the local matters until the local Association representative and the Company's Personnel Assistant to the General Manager have disagreed, in which case they must be referred to the Association taken collectively, who may take them up through their authorized representatives with the Personnel Assistant to the General Manager.8 [Emphasis supplied.] *In this section of the copy of the contract executed in 1948 and introduced into evi- dence, no reference is made to Local 261. It appears that the omission is an inadvertent typographical error inasmuch as 261 is listed along with the other locals in other por- tions of the contract. 7 The contracts prior to 1948 contained maintenance-of-membership provisions. They did not specifically state that the Association was recognized by the Company as the statutory representative of its employees. However, considering the terms of the con- tracts as a whole, it is obvious that such was the intent of the parties. 8 In the contracts executed from 1924 to 1937 these provisions were set forth in a sec- tion dealing with operators and again in another section covering employees of the me- chanical and miscellaneous departments . The contract for 1938 consolidated these pro- visions into one section. 1992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract outlines further steps for the appeal of grievances not settled in nego- tiation with the "Personnel Assistant to the General Manager," by appealing to the Company's executive committee. If the matter is not settled at that point, it is submitted to arbitration. Usually, the GCC dealt with the Company on general matters affecting the em- ployees as a whole or affecting employees of more than one division ; 9 and as to local matters, grievances were adjusted between representatives of the Company and the local, in accordance with the foregoing terms of the contract. However, it is clear that the GCC lent assistance to the presidents of locals in-processing their local grievances. Numerous letters, introduced into evidence, addressed from the Com- pany to the GCC or to International Vice-President O'Brien in his capacity of rep- resenting the employees collectively, show the scope of the general matters discussed with the GCC-for example, the length of probationary period for new employees, seniority, charter work, overtime, meal tickets, pensions, and vacations to name only a few. The correspondence also illustrates local matters taken up by the GCC such as grievances of individual employees. That the Company understood and relied on the fact that it was dealing with the GCC as the collective representative of its employees is demonstrated by the correspondence. Thus, the Company sought to ascertain the wishes of the GCC as to matters such as seniority and meal tickets. Moreover, when the Lawrence Local sought to obtain from the Company time and one-half on certain days for garage employees, the Company wrote the president of that local that "this is a matter involving an amendment to the working agreement, and therefore could not be properly settled in any other way than through the me- dium of the Wage Committee, appointed by the Joint Conference Board, with whom the Trustees conduct such negotiations." Then, writing to the GCC on the same subject, the Company stated that "if this should be a subject of further discussion, the negotiations ought to be between your Wage Committee and them instead of with the representatives of a single local union." (c) Miscellaneous considerations In support of its position that "it has a contract with each of the 11 locals," the Company relies upon pleadings in a proceeding in the State courts of Massachusetts instituted by the Company on March 22, 1951, for a declaratory judgment inter- preting a provision of the contract executed by the Company and the Association in 1950. Reliance was specifically made upon the following clause of the Company's bill of complaint which was admitted by the 11 locals which were respondents to that proceeding: Complainant has in each year negotiated contracts pertaining to wages, work- ing conditions and related matters with said local unions through their duly authorized representatives and bargaining agents. In view of the fact that in the paragraph immediately preceding the one quoted above, an allegation was made that "the employees of complainant . . have been for many years, and now are organized in local unions," and of the other references, in the singular, to the contract in the bill of complaint, the meaning of the fore- going paragraph is somewhat obscure and cannot be said, in the opinion of the Trial Examiner, to substantiate completely the Respondent's contentions. Thus, later in the bill were the following statements: (1) "The contract now existing dated June 14, 1950, was so negotiated . Section 22 of said contract provides '; (2) "In Section 12 of the present contract between complainant and said local unions, it is provided ..."; (3) "Upon information and belief complainant avers that in all contracts heretofore negotiated by it with the respondent local unions since the enactment of said St. 1913, C. 833, ."; (4) "Complainant be- lieves and asserts that the provisions of section 12 of said contract above referred 6 The record reveals one possible exception to this practice. In 1950 the Lowell and Lawrence Locals were involved in a dispute with the Company over the interpretation of a clause in the contract. The matter finally was submitted to arbitration, the expenses for which were paid not by the GCC but by the two locals involved. It was the testimony of the Association officials, however, that the GCC considered that the chief general issue was the refusal of the Company to arbitrate the dispute, that the GCC insisted that the dispute be arbitrated and in support of that position threatened to take a systemwide strike vote, that the Company thereupon agree to arbitrate, and that the GCC was satis- fied to abide by the results of the arbitration once the general question of the obligation to arbitrate had been resolved and accordingly did not formally appear in the arbitra- tion proceeding. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1993 to are in accordance and consistent with the provisions of G. L. (Ter. Ed.) C. 161, s. 103 , and that the entire contract is in full force and effect and binding upon all parties thereto . . "; (5) "Respondents on the other hand, assert that the provi- sions of section 12 of said contract are not consistent with said law, but in violation thereof, and that the alleged illegality of said provisions has so tainted the contract as a whole as to make the entire agreement of no force and effect , and no longer binding upon said respondents. Upon information and belief, complainant avers that respondents are threatening and proposing to call a strike of the members of said local unions upon the ground that said contract is illegal and of no effect for the reasons above referred to"; (6) "Wherefore your complainant prays . . . that this Court issue a declaratory judgment or decree determining whether the provi- sions of section 12 of the contract above referred to are in violation of G. L. (Ter. Ed.) C. 161, s. 103, and, if said section is found to be illegal as in violation of said G. L. (Ter. Ed.) C. 161, s. 103, what effect, if any, such may have on the remaining portions of said contract." In view of these considerations, the paragraph of the bill of complaint in question lends little, if any, support to the Company's contentions. Turning to other matters relating to positions taken by the parties in the past on the unit issue, consideration must be given to the proceedings arising out of a peti- tion for a union-authorization election filed by "Local Divisions 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL," and signed by "Martin L. Earley, Sec. Treas." 10 in Case No. 1-UA-2554 in October 1948. On October 10, 1948, the petitioner and the Company executed, with the approval of the Regional Director, an agreement for consent election. The agreement read as follows in regard to the appropriate collective -bargaining unit: All bus operators and collectors, and employees of the mechanical and miscel- laneous departments in the following Divisions: Fall River, Brockton, Lynn, Melrose, Taunton, Salem, Quincy, Lawrence, Lowell, Norwood-Dedham, Haver- hill and Chelsea, Massachusetts; but excluding part-time and temporary em- ployees, office help, guards, watchmen and supervisors as defined in the Act. The foregoing is intended to describe the appropriate collective bargaining unit as set forth in Section 11, Paragraph 2, of the collective bargaining agree- ment at present in force between the employer and the Union.ii On the basis of the foregoing systemwide unit, the election was conducted on October 21, 1948, and was won by the Association. On October 29, 1948, the Re- gional Director certified the Association as authorized to make a union-shop agreement. In January 1951 officers of the Lynn Local conferred with officials and counsel of the Company and requested that the Company "bargain with the Lynn Local separately." According to the credible and undenied testimony of Norman Branden, who at that time was president of the Lynn Local, the Company's counsel "said he would advise that the Lynn committee go to the National Labor Relations Board and find out if they could, then he would answer us yes or no." After consultation with the Board's Regional Office, the Lynn Local dropped the matter. By letter dated November 15, 1951, the International Association of Machinists, herein called the JAM, notified the Company of its claim to represent a majority of the Company's employees in the "Mechanical and Maintenance Department" and re- quested that arrangements for a meeting to negotiate a contract for such employees be made. On November 21, 1951, the Company sent the JAM the following letter: This will acknowledge receipt of your letter of November 15th in which you state you represent a majority of this company's employees in the Mechanical and Maintenance Department, and ask us to bargain with you concerning their conditions of employment. The employees whom you claim to represent are part of a bargaining unit which has been certified by the National Labor Relations Board and which includes all of our operators as well as the employees in the Mechanical and Miscellaneous Department. This company has a contract with various local di- visions of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America which covers the working conditions of all of the employees in the bargaining unit referred to above. 10 Earley was secretary -treasurer of the GCC. 11 This paragraph is discussed in the foregoing section of this report. 1994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We therefore respectfully advise you that we are unable to bargain with you for the employees you claim to represent until you have been certified as their bargaining agent by the National Labor Relations Board. The following minute of Board action taken on January 22, 1952 , upon appeal by the IAM from the Regional Director 's dismissal of its petition in Case No. 1-RC-2534, details the determination made in respect to that petition: The Regional Director 's dismissal of the appellant 's petition is sustained on appeal. On November 16, 1951 , the appellant , International Association of Machin- ists, AFL, filed a petition seeking a unit of all employees in the mechanical maintenance department of the Employer . On December 28, 1951 , the peti- tion was dismissed by the Regional Director upon the ground that the unit sought was inappropriate because of the long history of collective bargaining on a company-wide basis between the Employer and the Amalgamated Asso- ciation of Street , Electric Railway and Motor Coach Employees of America, AFL. Arguing against the dismissal of its petition , the appellant asserts that the latest contract between the Employer and the Association provided for "mem- bers-only" bargaining and that the existing bargaining unit was never formally established by the Board. The Board finds no merit in either of these conten- tions. The sole and exclusive recognition accorded by the Employer to the As- sociation is unqualified and covers all the non-supervisory operator and main- tenance job categories in the company -wide unit. Moreover , the ambiguity in contract language which the appellant construes as indicating "members only" representation , is clearly resolved by the presence of a valid union-shop clause in the contract . The appellant does not deny the existence of the approximately 40 year history of collective bargaining on a company -wide basis, but states that evidence of such history is not properly before the Board until introduced as evidence at a formal hearing. To accept this latter contention , however, would curtail drastically the investigatory powers of the Board. The Board decided to sustain the action of the Regional Director upon the ground that the unit was inappropriate for the reasons stated in Mt. Hood Stages, Inc., d/b/a Pacific Trailways, 91 NLRB 559, and the cases cited therein. (4) Conclusions as to the appropriate unit (a) General considerations As previously mentioned, one of the chief issues arising out of the complaint's al- legations that the Company has engaged in violations of Section 8 (a) (5) is the na- ture of the unit appropriate for the purpose of collective bargaining. The General Counsel and the Association contend that such unit is systemwide in scope, encom- passing all operators and collectors and employees of the mechanical and miscel- laneous departments employed in the Company's 11 divisions. The Transit Work- ers contends that a unit of such employees employed in the Company's Lowell Di- vision is appropriate. The Company also asserts that such employees in each of its 11 divisions constitute 11 separate appropriate units. In order to reach a determination as to the precise nature of the issue regarding the appropriate unit, it might be helpful to discuss some general considerations and to review pertinent Board precedent and principles. In the Morand case,12 the Board made some observations which are, in part, applicable to the issue under discussion. It will be recalled that the Morand case arose from a history of col- lective bargaining between a union and an employer association and after unsuc- cessful negotiations for a new contract, the union sent to each of the employers a proposed contract which was rejected. After reaching an impasse in further negotiations, the union launched strike action against a single employer and pro- posed separate negotiations for a contract with that employer. Thereafter the remaining employers in the association terminated the employment of their em- ployees. In respect to a contention that by requesting separate bargaining of one employer, the union had in effect violated Section 8 (b) (3) of the Act, the Board made the following observations: There remains for consideration the issue of whether the Local' s proposals for separate bargaining, with or without the intervention of the Associations, "Horand Brothers Beverage Co., et at., 91 NLRB 409. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1995 violated its duty under Section 8 (b) (3) to bargain on the basis of an appro- priate unit. We cannot agree with the dissenting opinion that the association- wide unit was the only appropriate unit in this case and that single-employer units would necessarily be inappropriate where, as in the instant case, the parties have exhausted the possibility of reaching agreement on the basis of a multiemployer unit. There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act requires only that the unit be "appropriate." 13 It must be appropriate to ensure to employees, in each case, "the fullest freedom in exercising the rights guaranteed by this Act." 14 Balancing the instability resulting from the collapse of negotiations on a multiemployer basis against the benefits to be derived from further collective bargaining on a single-employer basis, we conclude that, in this case, to ensure the fullest freedom in exercising the collective bargaining rights guaranteed to employees single-employer units could be found appropriate. 13 Appropriate is a word with a well-defined meaning. Webster's International Dictionary defines it as : "Suitable for the purpose and circumstances ; befitting the place or occasion." It carries with it no overtones of the exclusive or the ultimate or the superlative. To convey such thoughts, the words "only" or "ultimate" or "most" must be conjoined with the word "appropriate " The statute does not con- join them. See also Garden State Hosiery Co., T4 NLRB 318, 324. 14 Section 9 (b). In another case where the issue as to an alleged violation of Section 8 (a) (5) turned upon the appropriateness of the unit, the Board posed the issue as follows: the Respondent's refusal to recognize Local 2519 for a unit of employees already covered by the contract with Local 193 would violate the Act only if we were to conclude that at that time a separate unit of the firemen was inappropriate, that only their inclusion in the unit of sawmill employees would have been appropriate, and that the Respondent's belief as to the appropriate unit was not based on good faith.13 In view of the foregoing principles, the issue for determination as to the appro- priate unit is (1) whether at the time the Company executed the contract with the Lowell Local, the employees of the Lowell Division could have constituted a unit appropriate for the purposes of collective bargaining, and (2) if the Lowell Division employees did not constitute an appropriate unit, whether the systemwide unit urged by the General Counsel and the Association is appropriate. Other issues in respect to the Company's alleged violation of Section 8 (a) (5), such as its good faith in negotiating on the basis of the unit limited to the Lowell Division employees, will be discussed later in this report. (b) Could the Lowell Division employees have constituted an appropriate unit on June 25, 1952? The following general observations of the Board in a recent case 14 are pertinent to the issue at hand: On its face, the unit requested is appropriate because it is coextensive with the entire Company. A unit of such scope is the first one called appropriate in Section 9 (b) of the Act, upon which the Board's authority to establish collective bargaining units rests 23 Apart from situations controlled or affected by special statutory requirements, it is also the basic unit recognized by the Board since its earliest days.24 Indeed, it may be stated as a general rule that, absent any statutory considerations, the Board does not refuse to grant a 23 The pertinent language of Section 9 (b) reads as follows : "The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act , the units appropriate for the purposes of collective bargaining shall be the employer unit , craft unit, plant unit, or sub-division thereof. .. .' (Emphasis supplied.) 84 Tovrea Packing Co ., 12 NLRB 1063, 1083. 13 Siler Mill Company, 92 NLRB 1680 . See also A. S. Beck Shoe Corporation , 92 NLRB 1457; the opinion of Board Member Reynolds in International Union, United Mine Workers of America, at al ., 83 NLRB 916. . 14 Western Electric Company, Incorporated , 98 NLRB 1018, 1032. 1996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company-wide unit to a labor organization unless it is affirmatively shown that a smaller one is more appropriate. The close integration of the Company's operations among its 11 divisions, the central control of the operations in its Boston office, the interchange of employees among the divisions, the central maintenance shop at Campello performing major repair work on equipment from all divisions, the inspection network operating on a' systemwide basis and independent of the divisions, and the uniformity of working conditions in regard to hours, wages, and privileges-all detailed above-point to the appropriateness of a single systemwide unit . However, in comparable factual situations as to a company's operations, "in cases involving bus transportation com- panies, this Board has found appropriate divisionwide and systemwide units of operating and maintenance employees." 15 Accordingly, under certain circumstances, it must be conceded that the unit limited to the employees of Lowell Division could be appropriate. An examination of cases involving the transportation industry and multiplant units generally reveals that when there has been a long history of col- lective bargaining, such history is "entitled to controlling weight,"16 when factors indicate that a single-plant unit, as opposed to a multiplant unit, might be appropriate. Turning then to the history of collective bargaining between the Company and Association, the issue for determination is whether the bargaining has been on the basis of a systemwide unit, comprising employees of the 11 divisions, or on a divisionwide basis. The history of the relationship between the Company and the Association has been set forth previously and there is little in the record to support the contentions of the Company and the Transit Workers, aside from testimony in the nature of an opinion or conclusion voiced by witnesses for the Company and the Transit Workers to the effect that they considered the contractual rela- tionship to be between the Company and each local of the Association and that locals were completely autonomous.17 Since 1906 the contractual relationship between the Company and the Association has been on the basis of a single agreement for each contract period covering the employees of all 11 divisions of the Company. Pursuant to the requirements of the Amalgamated's constitution, the various locals have merged their separate identi- ties for the purpose of negotiating a contract in the medium of the GCC, which, with its subordinate, the Wage Committee, has been the representative of the locals in negotiating the annual contracts. Significantly, the Company's representatives in such negotiations have been a committee on which local managers do not appear to have been represented. Uniformly, the Wage Committee of the GCC has signed the contracts on behalf of the various locals. Significantly, the preamble of the earlier contracts specified that the contract was between the Company, as party of the first part, and the Amalgamated and its specified locals, "hereinafter called the `Association' . party of the second part." The same use of the term "Asso- ciation" in the collective sense was demonstrated in the 1948 and later contracts, setting forth the specified locals of the Amalgamated, "hereinafter called the 'Asso- ciation,' party of the second part." The recognition clause of the later contracts read as follows: The Company recognizes Divisions number 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America as the sole and exclusive bargaining agent of all employees in the classifications listed in Sections 16 and 17 of this Contract. Although each local of the Association was identified in the foregoing provision, the contract did not provide for their separate recognition but on its face referred to them as the "sole and exclusive bargaining agent." The use of the singular, as well as the practice of the parties in negotiating and administering their contracts, demon- strated that the various locals were recognized in a joint and collective sense as the statutory representative of the Company's employees on a systemwide basis.18 Throughout the years, the contracts were ratified not by the vote of the membership of each local but on the basis of the systemwide vote of the membership. Each con- tract set forth uniform terms and conditions of employment for employees through- 18 Central Greyhound Lines, Division of the Greyhound Corporation, 88 NLRB 13. 19 International Paper Company, Tonawanda Mill, 97 NLRB 764. 11 Such testimony and opinions are offset by the equally probative testimony of other witnesses that they deemed the contractual relationship to be between the Company and the GCC and that all locals were subordinate to the GCC and were never autonomous. 28 Northern Greyhound Lines, Inc., 80 NLRB 280. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1997 out the system and the record indicates that the GCC was vigilant in enforcing •the terms uniformly throughout all divisions. Moreover, on grievances and questions which affected employees of more than one division or which were considered to be of a general nature, the GCC was the joint representative of the various locals in negotiations with the Company as provided in the contract. It is clear that even as to local grievances, the GCC lent assistance to the local division in settling such matters. In the union-authorization proceeding in 1948, the petition was filed on behalf of the Association by the secretary-treasurer of the GCC; and the Company and the Association stipulated that the appropriate collective-bargaining unit was the system- wide one alleged to be appropriate by the instant complaint. Moreover, they further stated that such stipulation described the unit of the agreement between them in effect at that time. In 1951 the Company declined to bargain with the Lynn Local separately until assurance of the propriety of such negotiations was given by the Board. Similarly, later in the year, in refusing the IAM's request for recognition as the statutory repre- sentative of the mechanical and maintenance employees until the IAM was certified by the Board, the Company stated: The employees whom you claim to represent are part of a bargaining unit which has been certified by the National Labor Relations Board and which includes all of our operators as well as the employees in the Mechanical and Miscellaneous Department. This company has a contract with various local divisions of the Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America which covers the working conditions of all of the employees in the bargaining unit referred to above. Upon the foregoing and the entire record, the Trial Examiner is impelled to con- clude that the history of collective bargaining between the Company and the Associa- tion has been on the basis of a systemwide unit resulting in a single agreement for each contract term in which the Association, collectively, has been recognized as the statutory representative for all employees of the Company.19 The fact that the locals negotiated grievances concerning matters which related to that division alone, that the union-security provisions of the contract were administered and enforced at the local level, and that dues were checked off by the Company and sent to the treasurer of each local are not inconsistent with a finding of systemwide bargaining.20 Fur- thermore, it is found that even if the evidence sustained the Company's contentions that each agreement constituted, in fact, individual contracts between it and each local of the Association, the conclusion that the collective-bargaining negotiations were on the basis of a single systemwide unit would be the same?' In view of the history of collective bargaining upon the basis of a single unit comprising all divisions of the Company for more than 40 years, the Trial Examiner is of the opinion that at the time the Company executed the contract with the Lowell Local on June 25, 1952, a unit confined to the employees of the Lowell Division could not be deemed to be appropriate. Although the quotation from the Morand case, set forth above, lends some support to the Company's argument, it is to be noted that there are salient distinguishing features between the facts of that case and those of the instant proceeding. There, against a collective-bargaining history on an employer-association basis, the Board found that the union's proposal for separate negotiations and contracts after an impasse was reached in negotiations on the associationwide basis did not violate the union's duty under Section 8 (b) (3) to bargain on the basis of an appropriate unit. In so holding, the Board pointed out that it had customarily permitted "employers unlimited freedom unilaterally to fashion the scope of, or to completely destroy, multiemployer bargaining units 19Goebel Brewery Company, et al, 105 NLRB 698; A. & M. Karagheusian, Inc., 100 NLRB 917; Northland Greyhound Lines, Inc., 80 NLRB 280. See also cases cited in foot- note 20, infra. 20 The Goodyear Tire and Rubber Company, 105 NLRB 674; International Paper Com- pany, Southern Kraft Divisions, 101 NLRB 759; Bigelow-Sanford Carpet Company, Inc., 100 NLRB 1021; Harris Products Company, 100 NLRB 1036; International Paper Com- pany, Tonawanda Mill, 97 NLRB 764; St. Regis Paper Company, 97 NLRB 1053; Sterling Pulp and Paper Company, 77 NLRB 63. Hence, sections 86 and 168 of the Amalgamated's constitution, set forth above, are not mutually inconsistent. 21 See Los Angeles Paper Box & Board Mills, Inc., 101 NLRB 1026 ; Underwood Cor- poration, 99 NLRB 416; Kraft Foods Company, 97 NLRB 1097; Basalt Rock Company, Inc., 96 NLRB 1058. 1998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by simply withdrawing at any time from such units at their will or fancy.... Our colleague's unwillingness to accord even a semblance of such treatment to a union, under the limited circumstances where negotiations on a multiemployer basis have broken down, would seem to contradict his declaration, with which we are in wholehearted accord, that the same principles be applied to labor organizations as are applied to employers in determining whether there has been compliance with the statutory duty to bargain collectively." However, we are concerned with a multiplant unit question and not a multiemployer unit problem. An examination of Board precedent has failed to disclose any cases where the Board has granted the request of a union or employer to establish as an appropriate unit a single plant which has been a portion of a multiplant bargaining unit for a long period of time. This circumstance is vital and distinguishes the Morand case. The factual situation in Standard Brands, Incorporated,22 is similar to that Ole instant proceeding. In that case, for a number of years the employer and the union had negotiated periodically a master contract covering all plants of the employer throughout the nation. At each of the employer's plants, the union had a separate local. When the contracting union determined to affiliate with a national organiza- tion , the employees of the local at the employer's Oakland plant objected and joined another organization, which filed a 9 (c) petition seeking certification in a separate unit for the Oakland employees. The Board found that "Inasmuch as we have fre- quently held that where, as here, there has been a long continued bargaining his- tory among employees at like plants on the basis of a multi-plant unit, a unit limited to employees of one of such plants is not appropriate for the purposes of collective bargaining, we are of the opinion that a unit limited to employees of the Oakland yeast plant is inappropriate." 23 In view of the long history of collective bargaining between the Company and the Association on the basis of a systemwide unit and of the foregoing Board prin- ciples, it is found that at the time the Company executed the contract with Local Division 280, a unit limited to the employees of the Lowell Division was inappro- priate 24 The Company's suggestion that a Globe election should be conducted to determine the desires of the employees as to the scope of the unit could relate only to the Lowell Division, in view of the issues framed by the pleadings. The follow- ing language from the Board's decision in Spokane United Railways 25 is diapositive of this argument: The Amalgamated has diligently represented all categories of employees cov- ered by its contracts with the Company during the entire period of its service as representative. Stability acquired through the experience of such collective bargaining relations cannot be lightly sacrificed to the desire of a craft or mis- cellaneous group of employees who subsequently seek separate bargaining rights against the will of other employees, who, through long comprehensive bargaining on a broad scale, have gained substantial rights in their common employment. In view of this long bargaining history, and the interests accru- ing to the company's employees therefrom, we are of the opinion that to at- tempt to carve out from the established unit a bargaining group of such em- ployees as the Machinists claims to represent would not insure to employees as a whole the rights guaranteed under the Act 26 The Trial Examiner finds that the record establishes that all bus operators and collectors employed by the Company and all employees of its mechanical and miscellaneous departments exclusive of office and clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. It is further 22 75 NLRB 394. ss Marginal references have been omitted from this quotation. "American Suppliers, Incorporated, 98 NLRB 692 ; Lever Brothers Company, 97 NLRB 1240; Central Greyhound Lines, 88 NLRB 13; American Buslines, Inc., 79 NLRB 329. See also cases cited in footnote 20, supra. ' 60 NLRB 14, 20. 20 Accord : Mt. Hood Stages, Inc., 91 NLRB 559 ; Lincoln Transit Co ., Inc., 47 NLRB 1325. Since the Board has declined to carve out a unit of maintenance employees in cases where there has been a history of collective bargaining on an employerwide basis, it would appear that on the facts of the instant proceeding a Globe election for employees of the Lowell Division or for all divisions would not be ordered if this were a represen- tation instead of an unfair labor practice proceeding. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 1999 found that such unit will insure the fullest freedom in exercising the collective- bargaining rights guaranteed employees by the Act 27 (c) The majority status of the GCC The complaint alleged that the GCC was the statutory representative of the employees in the unit found above to be appropriate for the purposes of collective bargaining. It might be noted that the earlier complaint in Case No. 1-CA-1287 averred that such representative was Local Divisions 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL. One may infer, therefore, that the reference in the latest complaint to the GCC as the statutory representative was in the collective sense of the Association, as alleged in the original complaint. Accord- ingly, it is in this meaning that reference to the GCC is made in this section. Since 1948 the contract between the Company and the Association has contained union-security provisions which have been enforced, as hereinafter detailed. At the time of the commencement of the strike on March 10, 1952, there were approx- imately 1 , 850 employees in the appropriate unit . It appears that all participated in the strike . Stipulations of the parties as to the number of employees in the appro- priate unit in each division and the number of employees whose dues were checked off and given to the various locals having jurisdiction over the employees in the respec- tive divisions of the Company for the weeks ending September 6, 1952, and Feb- ruary 7, 1953, were as follows: ivision Number of employees in untt 9-6-52 Number of employees ' dues checked off 9-6-52 Number of employ ees ^ umt 2 7-53 Number of employees' dues checked off 2-7-53 Melrose________________________________________________ 125 86 89 79 Lowell ------------------------------------------------ 1 180 ------------ 170 - Lawrence______________________________________________ 166 157 123 111 Haverhill ---------------------------------------------- 7 39 ------------ 35 -- ---------- Lynn -------------------------------------------------- 309 292 254 224 Salem----------------- --------------------------------- 116 106 85 78 Norwood----------------------------------------------- 36 29 31 25 Quincy--------- ---------------------------------------- 225 198 193 180 Brockton _______________________________________________ 233 196 209 193 Taunton----------------------------------------------- 41 31 37 30 Fall River --------------------------------------------- 244 208 190 164 Totals____________________________________________ 1,714 1,303 1, 416 1,084 I On September 6, 1952, and February 7, 1953, the number of dues deducted for employees of the Lowell Division totaled 157 and 150, respectively. In view of the fact that the Lowell Local eventually withdrew from the Amalgamated, these dues deductions have not been counted in ascertaining the 0CC's majority. 3 On September 6, 1952, and February 7, 1953, the number of dues deducted for employees of the Haverhill Division totaled 36 and 11, respectively . However, since certain members of the Haverhill Local were suspended , but not expelled, by the Amalgamated , as discipline for their returning to work prior to the official end of the strike , the dues deducted for the Haverhill Local have not been counted ; for the purpose of this report, it is unnecessary to determine whether they should be counted or not. It is found that at all times material herein , including September 1, 1952, and thereafter, the GCC has been and is now the exclusive representative of all em- ployees in the unit found above to be appropriate for the purposes of collective bargaining in respect to rates of pay, wages , hours of employment , and other con- ditions of employment within the meaning of Section 9 (a) of the Act. 27 See St . Louis Publio Service Company , 77 NLRB 749 , 754, wherein the Board stated: "We have frequently found that in a public transportation system such as this, all main- tenance employees compose a homogeneous group with mutual interests and closgly re- lated functions ; and that a system-wide unit, including both operating and maintenance employees , is the most appropriate unit." 2000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Sequence of events On October 31, 1951, the Wage Committee of the GCC delivered to the Com- pany the Association's requests for changes in the contract which the Company and the Association had executed in 1950. Between October 31, 1951, and January 30, 1952, numerous collective-bargaining sessions were held between the Company and the Wage Committee but no agreement was reached. Although the record does not reveal precisely the area of disagreement between the Company and the Associa- tion, it is clear that an impasse arose over the Association's requests for changes in the existing pension plan. When the Company refused to arbitrate the dispute as to pensions, the Association's counsel, O. David Zimring, informed the Company's president, John Moran, at the meeting on January 30, 1951, "You may be faced with a strike." On February 4, 1952, the Association conducted a strike vote of its membership throughout the Company's system. The ballot was worded to the effect, "the Com- pany has refused to arbitrate, do you want to strike, yes or no." The ballots were counted on a systemwide basis and the result was "almost a unanimous vote to go on strike." On March 10, 1952, the strike began. During the early part of the strike, picket lines were established only in the Quincy, Fall River, and Lawrence Divisions where the Company attempted for a time to operate with replacements. The parties continued to bargain during the strike. Between February 6 and April 18, 1952, there were some 25 meetings between the Company and the GCC, most of which occurred in the State House under the auspices of the Massachusetts Commissioner of Labor and Industries. On April 29, 1952, there was a hearing, participated in by representatives of the Company and the Association, before a fact- finding commission appointed by the Governor of Massachusetts. Further meetings on May 28, June 10, and June 12, 1952, failed to resolve the dispute. About this time, it appears that in several locals a feeling arose among the mem- bership that the -strike should be ended. On June 21, 1952, the Lowell Local held a meeting of its membership, of whom approximately 150 attended. A motion that the members of that local should terminate the strike and return to work on June 22, 1952, either with or without the other locals, was unanimously approved. The recording secretary of the Lowell Local informed the manager of the Lowell Division of this determination and the employees of that division returned to work on June 22, 1952. However, 19 of the members of the Lowell Local continued the strike and did not resume their employment on June 22, 1952. From June 22 to 24, 1952, picket lines were formed by the Association at the Company's Lowell operations. On June 22, 1952, the employees of the Fall River and Taunton Divisions also re- turned to work, but at the request of officers of the GCC rejoined the strike later the same day. On June 24, 1952, the GCC sent the following letter to A. L. Spradling, international president of the Amalgamated: The General Conference Committee voted unanimously on Monday, June 23, to request that the Lowell Division return to strike status within twenty-four hours or be suspended automatically from the General Conference Committee of Boston. The Lowell Division, failing to comply with this demand, leaves us no alternative but to request that the International Union immediately suspend and revoke the charter of the Lowell Division in order that the morale of the remain- ing ten divisions, who are loyal to the International Union, shall not be affected in their fight to maintain the right of arbitration. Although the testimony of George Casserly, who was president at that time of the Lowell Local, was somewhat confused, it appears that the Lowell Local was notified on June 23 of the GCC's action taken on June 23, and summarized in the letter quoted above, whereby the members of the Lowell Local "were expelled from the [GCC]. They were told they were on their own and that we were scabs and all that stuff." Thereupon, the executive board of the Lowell Local determined on June 23 "that we should have a contract to protect the membership." It appears that they voted to accept the last contract offer made by the Company during the strike. On June 25, 1952, representatives of the Lowell Local met with the officers of the Com- pany. According to Casserly's testimony, he told them, "I was sent down by the men for the contract. . . All I told them is what happened, and about the Board meeting, and we wanted the contract; I told them for the protection of the men." The Company then drafted a short agreement. Its preamble stated that it was between the Company and "Local Division numbered 280 of the Amalgamated Asso- ciation of Street, Electric Railway and Motor Coach Employees of America," and contained the following substantive provisions: EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2001 1. That the terms and provisions of the agreement , heretofore entered into under date of June 14, 1950 , between the Company and eleven local divisions of said Amalgamated Association , are hereby continued in force , so far as they are applicable to the Lowell Union, until July 1, 1953, subject to the follow- ing changes: (a) The hourly rate of wages as set forth in said agreement shall be increased by fifteen cents (15¢) per hour, retroactive to January 1, 1952. (b) Wherever in said agreement the word "Association" is used , it shall be understood to refer to and mean the Lowell Union. On June 27, 1952, Thomas Markham, who at that time was acting manager of the Lowell Division and later became permanent manager, sent to each of the 19 employees who did not return to work with the other Lowell Division employees on June 22, and who continued to strike, the following letter: I am taking this means of informing you that because of your failure to return to work on June 22, 23 and 24th you have terminated your employment with this Company. Such termination is not because you failed to go through the picket line, that is your business, but because, of your own accord, you made yourself unavail- able for work when needed. Such absence from duty is considered a triple miss, therefore you are sus- pended indefinitely by the Company. On the same date, June 27, the GCC met with officers of the Company. John Costello, who as president of the Brockton Local was a member of the GCC, asked John Moran, president of the Company, whether the Company would reinstate the 19 strikers at Lowell who had that day been indefinitely suspended if the Union accepted the Company's wage offer of an increase of 15 cents an hour and returned to work. President Moran replied that the status of the 19 strikers was no concern of the GCC and that "he wouldn't recognize [the GCC] as speaking for them." When John O'Brien, a vice president of the Amalgamated assigned to assist the GCC, sought to discuss the suspension of the 19 strikers, Moran stated that the Company would deal only with the Lowell Local concerning those strikers and that "anything that was done concerning these 19 men would have to be done through [Casserly, president of the Lowell Local], and that he was their representative." Meanwhile, a back-to-work movement had started in the Haverhill Division and was led by Joseph Willett, who was a bus operator of the Company and also mayor of Haverhill. On June 28, 1952, between 32 and 35 of the less than 40 employees of the Haverhill Division abandoned the strike and returned to work. Under date of June 30, 1952, A. L. Spradling , international president of the Amalgamated, wrote the following letter to Casserly, president of the Lowell Local, and sent copies to the GCC and International Vice-President O'Brien: I am advised by Vice President John F. O'Brien and by telegram received from Jesse A. Levin, Secretary-Treasurer of the General Conference Committee of Boston that you and a majority of the members of Division 280 have broken ranks with the other Local Divisions on the Eastern Mass. Street Railway property, comprising the General Conference Committee of Boston, have gone through the picket line established by the General Conference Committee of Boston, and have returned to work. Over the years our Local Divisions 174, Fall River; 235, Brockton; 238, Lynn; 240, Melrose; 243, Taunton; 246, Salem; 273, Quincy; 261, Lawrence; 280, Lowell; 373 [Norwood]; and 503, Haverhill, whose membership is com- posed of the employes of the Eastern Mass. Street Railway Company, have negotiated contracts or agreements jointly, and where strike action has been necessary they have taken such strike votes jointly, in conformity with our Constitution and General Laws. In the present instance this procedure was followed, and I am reliably informed that you were one of the most outstanding among the members of the General Conference Committee of Boston in urging the present strike on the Eastern Mass. Street Railway property. I was shocked to learn that you had lead your men back to work through the picket line established by the General Conference Committee of Boston and, most certainly, you and the membership of Division 280 could not help but realize that by such action in breaking ranks with your sister divisions and returning to work you were weakening the rest of the morale of the membership on the Eastern Mass. Street Railway property and playing directly in the hands of the employing company in their efforts to destroy our Union on that property. 338207-55-vol. 110-127 2002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am further advised that the General Conference Committee of Boston unanimously voted on Monday, June 23, to request the membership of Division 280, Lowell, to return to strike status within twenty-four hours, and that they have failed to comply with this request. As stated above, the General Conference Committee of Boston represents the employes included in the bargaining unit as defined in the labor agreement between the Eastern Mass. Street Railway Company and the Joint Council representing all of such employes in our eleven divisions, and no membership of a single division can properly or legally under our laws determine for itself when or whether to go out on strike, or when or whether to return to work. Because of the illegal action which some of your membership have taken, and because such action has been condoned by yourself as President of Division 280, and because the rights and obligations of the membership of Division 280 have been misrepresented and not properly guided, and by virtue of the power vested in me by the Constitution and General Laws of this Association, I am as of this date directing Vice President John F. O'Brien to take over Division 280, to the end that the interests of our membership in Division 280 as well as the rest of the membership of our divisions on the Eastern Mass. Street Railway property will be protected as our laws provide. With kindest regards, I am, Fiaternally yours, On July 2, 1952, Norman Branden, who at that time was chairman of the GCC, and International Vice-President O'Brien conferred with Company President Moran. O'Brien again requested Moran to reinstate the suspended strikers at Lowell and informed Moran, according to Branden's undenied and credible testimony, that O'Brien "had been appointed trustee for the Lowell Division by International Presi- dent Spradling . . . and that Casserly was no longer representing that division." Moran refused to recognize O'Brien as trustee.28 However, Moran suggested that "possibly, if a ballot vote was taken containing his offer of fifteen cents an hour increase, and worded to the effect that the men would be taken back in their seniority, that that might settle the strike." After reporting the latter suggestion to the GCC, the Wage Committee of the GCC conferred with the Company later in the afternoon of July 2. Moran agreed, according to Branden, that "if a vote was taken that it would probably end the strike and all of the men would be returned that were needed, in their senior- ity. . . . Mr. O'Brien again asked to be allowed to speak for those men in Lowell, and was again refused by both Mr. Moran and Mr. Mulcahy,29 who said they had a contract with eleven separate divisions and not any one division." On July 3 or 4, 1952, O'Brien sent telegrams to Casserly and John Quinn, who was the financial secretary of the Lowell Local, stating that O'Brien intended to hold a meeting of the Lowell Local on July 7, and requesting the use of the union hall. According to Quinn, on July 7, he received another telegram from O'Brien, request- ing that Quinn bring the financial records to the meeting. Upon receipt of the tele- grams of July 3 or 4, and of July 7, the executive committee of the Lowell Local met on each occasion and decided neither to answer O'Brien's telegram nor to turn the records over to him. Pursuant to notices inserted in a Lowell newspaper, O'Brien conducted two meetings for the members of the Lowell Local on July 7, 1952. He read a copy of the letter from International President Spradling to Casserly, set forth above, stated that O'Brien had taken over the administration of the Lowell Local, and an- nounced that Casserly and all other officers of the Lowell Local were suspended from office. Archie MacLean, an employee of the Lowell Division and one of the strikers indefinitely suspended by Manager Markham on June 27, was appointed as O'Brien 's assistant.30 as Tt was O'Brien's recollection that at a meeting held about this time, he showed Moran and his counsel a letter from Spindling authorizing O'Brien to be administrator of Local Division 280 20 Char les \V' Mulcahv was counsel for the Company OThe findings as to the occurrences at the meeting of Jul% 7 are based upon the testi- mony of O'Brien who impressed the Trial Examiner as a forthright and reliable witness Raymond Farris testified that he attended the meeting and that "O'Brien didn't really say much at that meetreg He just get up on the rostrum and spoke to the men, really to try to get the men to go back . on strike " Paul J Fournier's recollection of O'Brien's remarks was likewise vague According to Fournier, O'Brien "didn't say much of anything except to argue with a few that were out of older It lasted about 15 min- PASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2003 Having determined that the employees should be balloted on the question of terminating the strike, the GCC had ballots prepared, asking for a vote on whether the employees wished to return to work on the following three conditions: (1) That the existing agreement would be continued with the addition of 15 cents an hour in the basic wage rates; (2) that all 19 of the indefinitely suspended Lowell em- ployees would be reinstated; and (3) that the Company would continue to recognize the GCC. A systemwide vote among the locals still on strike was held on July 8, 1952, and by a slight majority the membership voted to terminate the strike under the conditions named in the ballot. On July 9, 1952, the Wage Committee and O'Brien met with representatives of the Company. As shown by the credible and undenied testimony of Branden, the, following occurred: Mr. O'Brien was the spokesman, he told Mr. Moran and Mr. Mulcahy that the, vote had been taken and that the men had by majority voted to return to, work, and he asked him if everything was all right, and that meant the men: in Lowell would be returned to their jobs. Mr. Moran said, "No. . . . I didn't write the ballot. . . . I'm afraid you're trying to pull something sneaky on me. . You've got a trick up your sleeve. What you're trying to do is force me to hire back all the men that were on the payroll previous to March 10." Mr. O'Brien told him that wasn't true, the ballot had been worded, and he had been informed of the content of the ballot previous to the men voting on it, and Mr. Moran then said as far as he was concerned he didn't word the ballot, he wasn't satisfied with it, and he wouldn't return the men in Lowell. On July 11, 1952, the GCC, accompanied by International Vice-President O'Brieiii and their counsel, I. J. Gromfine, conferred with representatives of the Company. The credible and uncontraverted testimony of Gromfine revealed that the following occurred at this conference: I opened the discussion by stating to Mr. Moran that I had asked for that meeting. I had asked Mr. O'Brien to contact the Company and request the meeting that Friday afternoon. I told Mr. Moran that the reason I had done so, even though I had not participated in any of the previous negotiations, was that I could not believe that the Company had refused to reinstate these nine- teen men who had been indefinitely suspended at Lowell, and that I was sure there was some misunderstanding of the Union's position. So I stated to Mr. Moran as follows: "Let us be clear. On July 8th, the Union conducted a systemwide ballot, and a majority of the men voted to return to work provided, (a), that the Company reinstated the nineteen men at Lowell; and, (b), that the Company continued its practice of dealing with the General Conference Committee on that and all other general issues." I stated that "in my opinion, on the basis of long precedent of the National Labor Relations Board, the discharge of the nineteen Lowell strikers was a vio- lation of the law." Our position was that these men should be reinstated, and that certainly, in any event, the issues should be discussed with the General Conference Committee. I stated that when that issue was settled with the General Conference Committee, the men would return to work. I told him that in support of our position, we had filed a charge with the National Labor Relations Board. At that point, Mr. Moran said, "If you have filed a charge with the National Labor Relations Board, why do we have to discuss it? Why don't you just let the Board decide it?" I told him that the nineteen men had to eat, and that they could not wait for the slow process of vindicating their rights before the National Labor Relations utes When we left the meeting we didn't know anything more than we did when we went Into the meeting " Fournier denied that O'Brien read the letter from Spradling to Casserly or leferied to the lettei, that O'Brien informed them that the officers of the Lowell Local were suspended, that O'Brien stated that he was trustee or administrator of that local, or that O' Brien appointed any assistants at that meeting Faris also de- nied that O'Brien stated that the officers of the Lowell Local were suspended, that O'Brien mentioned Casserly and other officers, and that O'Brien appointed assistants . Upon the, entire recoid and the Trial Examiner's impression of the witnesses, the Tiial Examiner credits the testimony of O'Bilen as to the occurrences at the meeting on July 7 and ie- lects the testimony of Fournier and Fariis, except to the extent that it was in accord' with the ciedited testunonv 2004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board ; and that in addition to filing the charges, and wholly apart from the filing of the charges, we were here as the General Conference Committee to negotiate for their reinstatement. At this point, Mr. Mulcahy said that he had stated the Company position before , to wit : That the issue was not an issue which he was willing to discuss with the General Conference Committee, that the issue of the reinstatement of the nineteen men was purely a local problem which the Company would consider only through the grievance machinery and upon the negotiations with the Lowell Division , through Mr . Casserly. He stated , further, that in any event , he regarded the discharge of the nineteen men as lawful , on the theory that the strike at Lowell was over when a majority of the members of the Lowell Division returned to work , and that, therefore , at that point, the nine- teen men were no longer strikers and were not being discharged as strikers. I stated to Mr. Mulcahy, first , that the Union could certainly not agree that the issue of the reinstatement of the nineteen men was a purely Local issue; that, indeed , it was a strike issue-in fact the only strike issue that existed at that time. The issue of whether . . . the men who refused to follow a strike -breaker back to work . . . can be discharged , I said to Mr . Mulcahy, is an issue that the General Conference Board regards as a general issue-the strike issue- and an issue which must be discussed and negotiated about with the agency that represents a majority of the men in the systemwide bargaining unit. At this point , Mr. Moran stated that he did not regard the situation as being one in which there was any systemwide bargaining unit , that he regarded the Company as having always dealt with eleven separate Locals. The fact, he said , that they were embodied in a single agreement was merely for the con- venience of the parties.. . I stated to him that my impression was that for forty years or more, the Company had been bargaining in a single unit , and they intended to bargain on that issue in that manner with respect to this strike issue of the reinstatement of the men. At this point , Mr. Mulcahy said the position of the Company and the Union was quite clear , and no further discussion was necessary. I believe the meeting ended with Mr. O'Brien stating to the Company as follows : "That if you regard this as a purely Local issue , and even though we can't agree with you, in the interest of ending this strike , which is costing every- body a great deal , let's settle the question of whether these men are entitled to return to work right now. I have been appointed . . . as Trustee of the Lowell Division by the International . All the parties necessary to discuss this issue, under whatever theory you follow, are here . Can't we discuss it?" Mr. Moran said "no." He said that Mr. O'Brien had no authority, that Mr. Moran was not interested in what the International had done. He regarded Mr. Casserly as the only bargaining agent with whom he would talk concerning any Lowell problem, and he suggested to Mr. O'Brien that he go to Lowell and straighten out any internal differences that may exist. I, at that point , stated to Mr. Moran that the internal problems of the Union, the way in which the International or the General Conference Board conducted its internal problems was no concern of Mr. Moran , and that I considered it highly improper that he should even suggest to Mr. O'Brien what the Interna- tional should do. Mr. O'Brien then stated that we were going to take this matter to the Na- tional Labor Relations Board . Mr. Mulcahy stated he was not intimidated by any charges filed with the National Labor Relations Board ; and the meeting ended on that note. On July 13, 1952, Assistant General Manager Wilkinson informed International Vice-President O'Brien that the Company had decided to reinstate the 19 Lowell strikers . The GCC met on July 14 and agreed that the strike should be terminated on the following day. On July 15, 1952 the employees returned to work. On July 21, 1952, the Wage Committee met with Assistant General Manager Wil- kinson and his assistant , Harney, and discussed the required number of hours em- ployees should work during a year before they should be entitled to vacations. A portion of Branden's undenied testimony attributed statements to Wilkinson which the General Counsel and the Union contended were violative of Section 8 (a) (1) of the Act. In order to make a determination as to these contentions , the entire conversation , of which they were a part , will be set forth . Branden testified that the following occurred at the outset of the meeting: EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2005 When I took a chair, Mr. Harney was sitting side of me. . Mr. Wilkinson said , "I see you're sitting beside `Tokyo Rose.' Did you give him that name?" And I said, "No, I would have a better name if I gave him a name." . . I then asked Mr. Harney why he spread the story I had bought a house for $17,000 in Lynn. Mr. Wilkinson said, "Don't feel bad about that, Norm, I said the house cost $27,000 down in the Brockton area." I informed them that it was way above what I had paid for it. It had caused quite a lot of reflection on, not only myself, but my family; and I told him it was a story that never should have been told, and it was the wrong thing to do. We then had a discussion concerning the required number of vacation hours, which are 1280, or thirty-two weeks at forty hours a week, before a man is entitled to a vacation. Mr. Wilkinson, while talking, said: "Some of you presidents will have long vacations." He pointed to Mr. Harney and he said: "You'll find it out, so that I might as well tell you, Mr. Harney has a job for the next few months as cam- paign manager for Charlie Buchanan"-who was then going to run against me for president in Lynn. . . We asked them if they would arbitrate the question of vacations. Mr. Wilkinson said that he would give us the answer later. Branden further testified that in the election subsequently held in the Lynn Local, employee Ladner ran against him for the office of president, that Branden had chal- lenged Buchanan's right to be on the ballot, had "ruled him off the ballot and was upheld by the International office," and that Ladner won the election. Although Wilkinson was a witness in the instant proceeding, he was not questioned with respect to the foregoing remarks attributed to him by Branden. The latter was a reliable witness and his testimony is credited. Although it is possible that Wilkinson's re- marks to Branden were made in jest, nevertheless, in the absence of any expla- nation by Wilkinson in his testimony for the statements attributed to him by Branden, the Trial Examiner is impelled to find that Wilkinson's statements that his assistant would be the campaign manager for an opponent of Branden in a forthcoming elec- tion campaign for officers of the Lynn Local constituted unlawful interference, vio- lative of Section 8 (a) (1) of the Act. On August 14, 18, 21, and 25, 1952, respectively, employees Dustan Kelley, John McCabe, McNamara, and Crow were indefinitely suspended and on August 19, 1952, O'Neill was constructively discharged. All were employees of the Lowell Division and all were among the group of 19 who refused to abandon the strike on June 27. About August 25, 1952, International Vice-President O'Brien took a petition signed by these 19 employees and presented it to Assistant Manager Wilkinson, asking the latter if "on the basis of the situation of the men that were involved in Lowell and who were members of our organization, would he then recognize me as the admin- istrator for these people." Wilkinson made copies of the petition and replied that he could not do so and that the "Company would not recognize either the General Conference Committee or the Amalgamated to do business with" the Lowell Local. Under date of August 25, 1952, Assistant General Manager Wilkinson wrote the GCC the following letter: With reference to the signing of a new contract, in accordance with the settle- ment agreement arrived at a few weeks ago, and about which you have talked with myself and Mr. Harney, will you kindly let me know when it would be convenient for your committee to meet with us to execute such an agreement covering the local divisions which you represent, and we will be glad to make arrangements accordingly. Thereafter arrangements for a meeting were made and the GCC, accompanied by International Vice-President O'Brien, met with the Company's representatives on September 2, 1952. The Company offered for signature by the Wage Committee a proposed contract whose preamble stated that it was between the Company and "Local Divisions numbered 174, 235, 238, 240, 243, 246, 253, 261, 373, and 503 of the Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, party of the second part." It provided that the terms of the 1950 contract should be continued in force until July 1, 1953, subject to the fol- lowing changes: (a) The hourly rates of wages as set forth in said agreement shall be in- creased by fifteen cents (15¢) per hour, retroactive to January 1, 1952. (b) The words "nineteen-month period ending January 1, 1952" appearing in Section 21 (1) shall be changed so as to read "eighteen-month period ending July 1, 1953." 2006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After examining the proposed contract, O'Brien stated that no reference was made therein to the Lowell Local-Local Division 280. The Company representa- tives stated, according to Branden's testimony, that "they had signed a contract with Division 280 and, therefore, they were omitting it from this particular con- tract that we were there ready to sign." This was the first time that the GCC had been informed of the separate agreement between the Company and the Lowell Local. O'Brien stated that the GCC would not sign any agreement which did not cover all employees in the 11 divisions. Company President Moran replied that the Association "had a case before the National Labor Relations Board, and it could be determined there as far as he was concerned." Not long thereafter, apparently on or about September 8, 1952, a committee appointed by the general executive board of the Amalgamated came to Lowell and tried Casserly and the other officers of the Lowell Local As a result, the general executive board of the Amalgamated expelled Casserly and Kelley, who had been a member of the Lowell Local's executive board on October 23, 1952. The other officers were exonerated. The minutes of a meeting of the Lowell Local held on September 12, 1952, reveal that the following motion was approved: That the members who did not return to work with the majority and are acting against the best interests of this Local be suspended from this Local and barred from the Union Hall until such time as they file grievance blanks with the Secretary and make public apologies to the officers and members. . . . Casserly testified that the employees to whom the above motion was addressed had been publicly vilifying Casserly and that the grievance blanks referred to in the motion were forms which members customarily filled out when they desired to file charges against officers of the Lowell Local for improper conduct. On October 3, 1952, the last meeting between the Company and the GCC took place. The record does not reveal the occurrences at this meeting. The minutes of the Lowell Local show that at a meeting held on October 21, 1952, the membership adopted the following resolution: That the International President be notified by Treasurer Quinn that if Presi- dent Casserly and Board Member Kelly are suspended, the division will resign as of November 1st, 1952, and no further per capita tax will be sent as of that date. On November 1, 1952, the Lowell Local severed its connection with the Amal- gamated, following the expulsion of Casserly and Kelley on October 23, 1952, and about the same time approximately 161 employees signed a petition to the effect that they were withdrawing from membership in Local Division 280. On November 1, 1952, they organized a new unaffiliated union, the Transit Workers Local No. 1, with the same officers as in its predecessor, the Lowell Local In November Casserly advised the Company of the formation of the Transit Workers. Assistant General Manager Wilkinson then informed Lowell Division Manager Markham, according to the latter's testimony, "that the Transit Workers were the bargaining agent for the Lowell Division," Apparently, the contract originally executed by the Company and the Lowell Local in June 1952 has been continued in effect and administered by the Transit Workers. Subsequent to the expulsion of Casserly and Kelley, International President Spradling appointed Robert Stack; a member of the Amalgamated's general execu- tive board, to act as coadministrator with International Vice-President O'Brien of the affairs of the Lowell Local. Despite the disaffiliation of a large portion of the Lowell employees and their formation of the Transit Workers, the Amalgamated has preserved Local Division 280 (i. e. the Lowell Local) as an entity and that division has persisted in its claim to represent the Lowell employees on local matters. Some of the 19 employees who refused to abandon the strike in June 1952, and others, have continued their adherence to the Amalgamated and Local Division 280, have held meetings, and have elected temporary officers to operate under the direction of the trustees The record shows that the Company has been aware of the action taken by the Amalgamated in this regard and of the repre- sentation claims of Local Division 280 but the Company has refused to recognize or deal with either the trustees-or the temporary officers of Local Division 280. On November 13, 1952, the Transit Workers posted the following notice on the bulletin board at the Lowell Division garage where notices were customarily posted by the Lowell Local: You have received letters from the Amalgamated, confirming our withdrawal from the International Union. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2007 In the near future, notices will appear signed by Robert Stack and John F. O'Brien calling meetings in Lowell by the Amalgamated. An attempt will be made to turn this local over to suspended members. At the last regular meeting it was voted by the membership to suspend any member who might attend any such meeting or be in contact with any of the above Attend only those meetings as posted and signed by your local officers. On January 23, 1953, the GCC wrote the following letter to the Company: As the majority representative of all the employees in the eleven divisions of the Company, the General Conference Committee of Boston requests again that you sign the contract agreed upon after the strike but not signed, and that you recognize and deal with the Committee as the exclusive bargaining representative of the employees in these eleven divisions. We wish to remind you again that until you announced that you had signed a separate contract with the Lowell division it had been your practice to execute contracts covering all the employees in the eleven divisions as a single unit. We request you again to resume this practice and to name a date when you can meet with the Committee as the exclusive bargaining representative of all the employees in these eleven divisions, including Lowell.. . . On January 27, 1953, the Company replied with the following letter to the GCC: Receipt is acknowledged of your letter dated January 23rd, which was received in the mail this morning, and which I note was postmarked January 26th, in which you request that your committee be recognized as the exclusive bargaining representative of all of the eleven different divisions of the system. The position of the company in this matter has been repeatedly stated to you and to your committee; namely, that our contract is with the several locals, and that your committee acts in an entirely representative capacity, deriving its authority from the locals themselves. To the extent that some, or all, of these locals wish to appoint a committee or agent to represent them, we, of course, will be glad to recognize the same. However, we cannot recognize your committee, or any other, as the bargain- ing agent for any local which has not authorized such representation. We will be glad to meet with your committee at your convenience for the purpose of executing a contract covering such of the locals as you may have authority to represent. (e) Conclusions as to the Company's refusal to bargain with the GCC As set forth in detail above, the Company had bargained collectively with the Association on the basis of a single unit of employees in all divisions of the Com- pany for more than 40 years, and the result of the contract negotiations had been a series of agreements-a single agreement for each contract term since 1910, if not 1906. The last collective-bargaining conferences for a new agreement began on October 31, 1951. On March 10, 1952, the Association launched a strike throughout the Company's operations in support of its economic demands. Throughout the strike the Association's Wage Committee and GCC continued to negotiate with the Company's representatives. On June 12, 1953, was held the last of these confer- ences before the united front presented by the Association's locals in their strike ac- tion was broken by the Lowell Local's abandonment of the strike and return to work on June 22, 1952. Thereupon, the Association picketed the Company's Lowell oper- ations. Despite the long history of collective bargaining on the basis of a single unit of all the Company's employees, despite the fact that throughout the negotiations for a new contract-from October 31, 1951, through June 12, 1952-the Company had continued to negotiate on the basis of such a single unit, and despite the Company's knowledge of the provisions of the Amalgamated's constitution requiring the locals in the Company's operations to "negotiate contracts or agreements jointly," 31 the Company at the mere request of the Lowell Local on June 25, 1953, under cir- cumstances more indicative of haste than good-faith bargaining, speedily drew up and executed a contract with the Lowell Local covering only the employees of the Lowell Division. As found in an earlier section of this report, this unit was obviously in- appropriate for the purposes of collective bargaining. On June 27, 1952, the Com- 11 Assistant General Manager Wilkinson had in the past been president of the Brockton Local, had been a member of the GCC and of the Wage Committee, and clearly was ta- miliar with the constitution of the Amalgamated. 2008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany "suspended indefinitely" 19 employees of the Lowell Division who had de- clined to follow the back-to-work movement at Lowell and had continued the strike. Later that day, when the GCC met with the Company and sought to discuss the suspension of the 19 Lowell strikers, the Company took the position that the issue was local in nature and one which it would discuss bnly with the Lowell Local and not with the GCC. At succeeding conferences with the GCC, the Wage Committee, or its representatives, on July 2, 9, and 11, 1952, the Company adhered to this posi- tion and refused to discuss the suspension of the 19 Lowell strikers with either the GCC or with International Vice-President O'Brien, who, in the meantime, had been appointed trustee for the Lowell Local. The Company remained adamant in hold- ing to its position in this regard despite the fact that the suspension of the 19 Lowell strikers was considered by the Association to become a strike issue and despite the Company's knowledge that the Association so regarded the matter. Ultimately, the Company determined to reinstate the 19 strikers and the strike in other portions of the Company's system ended on July 15, 1952. On August 25, 1952, the Company refused to recognize International Vice-Presi- dent O'Brien as administrator for the Lowell Local or the representative of the em- ployees who had signed a petition. In fact, Assistant General Manager Wilkinson stated that the "Company would not recognize either the General Conference Com- mittee or the Amalgamated to do business with" the Lowell Local. On September 2, 1952, when the GCC met with the Company to execute a con- tract, the Company submitted an agreement covering employees in only 10 of its divisions and excluding from its scope the employees of its Lowell Division. O'Brien mentioned the omission of the Lowell employees and the Company stated that the reason therefor was that it had signed a separate contract with the Lowell Local. This was the first time that the GCC had been informed of the separate agreement for the Lowell Local. The GCC refused to sign an agreement which did not cover all employees in the Company's I1 divisions. Company President Moran replied that the Association "had a case before the National Labor Relations Board, and it could be determined there as far as he was concerned." In response to the GCC's last request that the Company meet with the GCC and execute a contract with the GCC for all employees in the 11 divisions, the Com- pany replied as follows on January 27, 1953, for the first time raising the issue of the authorization by the various locals of the Association given to the GCC to act as the locals' representative in collective bargaining with the Company: The position of the Company in this matter has been repeatedly stated to you and to your committee; namely, that our contract is with the several locals, and that your committee acts in an entirely representative capacity, deriving its authority from the locals themselves. To the extent that some, or all, of these locals wish to appoint a committee or agent to represent them, we, of course, will be glad to recognize the same. However, we cannot recognize your committee, or any other, as the bar- gaining agent for any local which has not authorized such representation. In support of his contentions, the General Counsel points to the following state- ment of policy made by the Board in its Eleventh Annual Report at pages 45 and 46: In addition to making a determination that the union represents a majority of the employees, the Board must also determine whether the unit, in which the union represents such a majority, is appropriate for purposes of collective bar- gaining before it may hold that the employer has violated Section 8 (5) of the Act. An employer may not justify his refusal to bargain with a union on the ground that he has a contract with another labor organization, where the con- tract covers an inappropriate bargaining unit .70 [Emphasis supplied.] 70 Matter of Graham Ship Repair Company, 63 N. L. R B. 842. If the above statement is still Board policy 32 in circumstances such as those revealed by the instant proceeding, it would follow that since the contract between the Company and the Lowell Local, executed on June 25, 1952, covered an in- appropriate bargaining unit, the Company violated Section 8 (a) (5) and (1) of the Act on September 2, 1952, when, in reliance upon such contract with the Lowell Local, it refused to execute with the Association a single contract covering employ- ees in the appropriate unit, which, as previously found, was systemwide in scope. e2 In this regard see also Albert Love Enterprises, at at., 66 NLRB 416; Foote Bros. Gear and Machine Corporation, 14 NLRB 1045; Shell Oil Company, 2 NLRB 835. . EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2009 Moreover, since the Company executed the contract for an inappropriate unit with the Lowell Local, in the face of the Association's demands and in the midst of negotiations for a contract covering the appropriate systemwide unit, the Company's initial violation of Section 8 (a) (5) would date from June 25, 1952, when the contract with the Lowell Local was signed. Assuming that the principle of the Graham case is still controlling, the Trial Examiner finds that on June 25, 1952, and thereafter, the Company refused to bargain collectively with the GCC 33 as the exclusive representative of its employees in the appropriate unit in violation of Section 8 (a) (5) and (1) of the Act. On the other hand, it may be argued that the principle of the Graham case has been modified somewhat by more recent decisions of the Board, such as those in the Morand 34 and the Siler Mill 35 cases. In the latter case, the employer's opera- tions covered two appropriate collective-bargaining units, for which the employer had separate contracts with Local 2635 and Local 193. When the employer later added a dry kiln and boiler to its operations, it entered into a contract with Local 193 for the employees of the new operation. Later, Local 2519 demanded recognition and when the employer declined its requests, Local 2519 filed refusal-to-bargain charges against the employer. The Board held that in the absence of unlawful assistance to Local 193, "the Respondent's refusal to recognize Local 2519 for a unit of employees already covered by the contract with Local 193 would violate the Act only if we were to conclude that at that time a separate unit of the firemen was inappropriate, that only their inclusion in the unit of sawmill employees would have been appropriate, and that the Respondent's belief as to the appropriate unit was not based on good faith." Applying the foregoing statement of the Board to the facts of the instant pro- ceeding, a finding that the Company had violated Section 8 (a) (5) of the Act. would be justified only if, on June 25, 1952, when the contract with the Lowell Local was executed, the record establishes an affirmative answer to each of the following three criteria: (1) A separate unit of the employees of the Lowell Division was inappropriate, (2) only their inclusion in the systemwide unit of employees in all 11 divisions would have been appropriate, and (3) the Company's belief as to the appropriateness of the unit limited to the Lowell Division employees was not based on good faith. Considering the entire record, the Trial Examiner is convinced that the evidence affirmatively fulfills the foregoing three criteria of the Siler Mill case and demonstrates that the Company haLunlawfully refused to bargain with the GCC. As found above in the section determining the appropriate unit , the issues posed by the first two of the foregoing criteria have been answered in the affirmative. That is, it has been found that under the circumstances of this proceeding, on June 25, 1952, a unit limited to the employees of the Lowell Division was inappro- priate and only their inclusion in the systemwide unit composed of employees of all 11 divisions of the Company would have been appropriate. There remains for consideration the third issue, i. e., whether on June 25, 1952, when the Company executed the contract with the Lowell Local, the Company in good faith believed that a unit limited to employees of the Lowell Division was appropriate. The conclusion that the Company could not have held such a belief bona fide is impelled by the following circumstances connected with the bargaining history and the Company's actions in the past in regard to the bargaining unit , all detailed fully above: (1) The more than 40-year bargaining history between the Company and the GCC on the basis of a single systemwide unit, resulting in a single contract for each term ; 1(2) the Company's insistence in the past that general matters and contractual issues be negotiated by the GCC and not by representatives of the various locals; (3) the Company's denial , in January 1951, of the Lynn Local's request that it be allowed to bargain separately with the Company, unless sanctioned by the Board; (4) the Company's refusal to accord the IAM recognition as repre- sentative of the maintenance employees until certified by the Board, because the employees whom the IAM desired to represent were part of the systemwide bar- gaining unit under a single contract with the Association; (5) the Company's knowledge of the requirements of the Amalgamated's constitution for joint negotia- tions on the part of the various locals throughout the Company's system in respect As noted in section (c) above, reference to the GCC is in the collective sense as applied to the term "Association" herein. That is, it refers to all locals, the Amalga- mated, and the GCC taken in a collective sense. U Mo, and Brothers Beverage Co., et at., 91 NLRB 409. 65 Siler Mill Company, 92 NLRB 1680. 2010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to collective-bargaining contracts; and (6) the fact that the Company had never before, until January 1953, raised the issue of the authorization by the locals for the GCC to act as their collective-bargaining representative, despite the occurrence of instances when the Company could have raised that issue, such as in the attempt of locals to secede from the GCC. Any doubt as to the existence of a good-faith belief on the part of the Company as to the appropriateness of the bargaining unit limited to Lowell Division employees is dispelled when one considers the treatment accorded by the Company to the 19 employees who did not return to work with the other Lowell Division employees on June 22, but who remained on strike. Two days after the execution of the con- tract between the Company and the Lowell Local, the Company "indefinitely suspended" the 19 employees of that division who continued to strike. As found below, this action by the Company was patently unlawful and violative of the Act. Moreover, the Company adamantly refused to discuss the suspension of these employees with the GCC and insisted that it would deal with the Lowell Local as to the matter, thus lending illegal support to the Lowell Local and compounding the Company's violations of Section 8 (a) (2) of the Act, as related below. Further reflection upon the Company's bona fides as to the issue in question is cast by the Company's acts of discrimination, detailed below, against 8 Lowell employees who adhered to Local Division 280 and the Association, 7 of whom had been among the 19 unlawfully suspended by the Company in June 1952, and against 3 Haverhill employees who led the opposition to a back-to-work movement in that division and supported the Association's strike. Upon the foregoing, the Trial Examiner is convinced and finds that the Com- pany did not in good faith believe that employees of its Lowell Division constituted a separate and appropriate collective-bargaining unit on June 25, 1952, when the Company signed the contract with the Lowell Local. The considerations enumerated above belie the Company's argument upon the issue first raised in January 1953, as to the authorization given by the locals to the GCC for the latter to act as the former's collective-bargaining agent and demonstrate that the raising of such issue was no more than an afterthought to meet the exigencies of the instant proceeding.36 It is found that the Respondent violated Section 8 (a) (5) of the Act by ignoring the GCC's collective-bargaining demands in behalf of the employees in the appro- priate unit and executing the contract with the Lowell Local covering an inappro- priate unit on June 25, 1952, by refusing to discuss the indefinite suspension of the 19 Lowell strikers with the GCC on June 27, July 2, 9, and 11, 1952, by refusing on August 25, 1952, to recognize International Vice-President O'Brien as adminis- tor for the Lowell Local or the representative of the employees who had signed a petition, and by refusing to sign a contract with the GCC covering the employees in the systemwide unit found appropriate above on September 2, 1952, and there- after. In sum, the Trial Examiner concludes that on June 25, 1952, and thereafter, the Company refused to bargain in good faith with the GCC as the exclusive repre- sentative of the Company's employees in the appropriate systemwide unit in viola- tion of Section 8 (a) (5) of the Act and thereby interfered with, restrained, and "The General Counsel points out that even if the Company's position as to the appro- priateness of the Lowell Division unit "was taken in sincere reliance on a belief sincerely arrived at ," the following statement of the Iioaid in its decision in Albert Love Enter- prises, 66 NLRB 417, 420 , is controlling under such assumed circumstances : Undisputed credible testimony reveals that [the Company ] was aware of the Board's jurisdiction to ascertain the appropriate unit and to designate a bargaining repre- sentative , and that it was cognizant of its right in the circumstances to petition the Board to resolve the conflicting claims of representation which had been made . . . Having taken matters into its own hands with full knowledge of the Board 's function and the right to invoke the Board 's processes , [ the Company ] may not avoid the con- sequences of its actions Had the Company filed a petition under Section 9 of the Act , it is clear , upon the con- clusions as to the unit made above, that the petition would have been dismissed for the reason that a unit limited to the Lowell Division employees was inappropriate It might also he rioted that the Lowell Local' s request for a separate contract covering only the Lowell Division employees did not raise a real question concerning representation because the unit sought was inappropriate . Wslliam Penn Broadcasting Company , 93 NLRB 1104 Accordingly, the doctrine enunciated in I Sprewak it Sons, 71 NLRB 770 , is inap- plicable to the instant complaint 's allegations respecting the Company 's violations of Section 8 ( a) (5) of the Act. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2011 coerced its employees in the exercise of, the rights guaranteed in Section 7 of the Act.37 (f) Conclusions as to the suspension of the 19 Lowell strikers When the Lowell Local abandoned the strike and most of its membership returned to work on June 22, 1952, the Association immediately set up picket lines at the Company's Lowell operations . The picketing continued through June 24, and was manned by employees throughout the Company's system. On June 27, 1952, 2 days after the Company executed the contract with the Lowell Local for an inap- propriate unit, Acting Manager Markham sent each of the 19 employees of the Lowell Division who did not abandon the strike on June 22 the following letter: I am taking this means of informing you that because of your failure to return to work on June 22, 23 and 24th you have terminated your employment with this Company. Such termination is not because you failed to go through the picket line, that is your business , but because , of your own accord, you made yourself unavail- able for work when needed. Such absence from duty is considered a triple miss , therefore you are sus- pended indefinitely by the Company. It appears that the term "indefinite suspension " is one that has evolved from the grievance procedure established by the long line of contracts between the Company and the Association . Customarily an indefinite suspension would be taken up as a grievance through the steps of the procedure . Various results might ensue-it might be revoked , reduced to a certain period of days, or sustained . In the event the indef- inite suspension was sustained in the last step of the grievance procedure , the sus- pension was tantamount to a discharge and a complete termination of the employee's employment with the Company. On the other hand , if an indefinite suspension was not appealed by the employee involved, the ultimate result was that of a severance of employment and discharge , for, as Manager Markham testified , "an indefinite suspension could go on for life if the operator or individual involved never took the steps or the means at his disposal to reinstate himself with the Company." From June 27 until July 14, 1952, the Company refused to discuss the suspension of these 19 strikers with the GCC or International Vice-President O'Brien, who 37 The complaint alleged that the Company's refusal to bargain with the GCC dated from September 2, 1952. At the close of the hearing, the General Counsel's motion to conform the pleadings as to the proof in respect to dates, names, et cetera , was granted. The Trial Examiner deems that this motion was designed to correct the date on which the complaint alleged that the Company' s violation of Section 8 (a) (5) commenced; and since the issues in respect to such allegation were fully litigated , the Trial Examiner finds that the Company's unlawful refusal to bargain with the GCC began on June 25, 1952 See Weaver Wintark, 87 NLRB 351 ; Benson Produce Company, 71 NLRB 888, 899. The date of June 25 , 1952, is within the 6-month period of limitation in Case No. 1-CA-1287, in which the initial charge was filed with the Board on August 26, 1952, and served upon the Company on August 27 or 28, 1952 As set forth above , at the outset of the hearing the Trial Examiner granted the General Counsel 's motion to amend the order consolidating cases and notice of hearing and the complaint so as to consolidate Case No 1-CA-1287 with the previously consolidated Cases Nos. 1-CA-1390 and 1-CA-1374. In the opinion of the Trial Examiner this ruling was in accord with present Board policy enunciated in cases cited previously in the margin However, it should be noted that June 25 , 1952, was not within the statutory period of limitation in Cases Nos . 1-CA-1390 and 1-CA-1374. The earliest of the charges in these cases was filed on January 9, 1953, and served upon the Company on January 9 or 10, 1953. Had Case No. 1-CA-1287 not been consolidated with the other two cases , the findings as to the Company 's conduct prior to July 10, 1952, would have been considered as background and its violations of Section 8 (a) (5) of the Act would have been held to have commenced on July 11, 1952, and continued thereafter Although the GCC, as a separate entity, was not in compli- ance with the filing requirements of Section 9 (f), (g), and (h) of the Act until after December 22, 1952 the Company never relied upon such noncompliance on the part of the GCC as the reason for the Company 's refusal to bargain with the GCC, and accordingly the noncompliance of the GCC cannot afford a defense to the Company to the instant complaint 's allegations New Jersey Carpet Mills, Inc, 92 NLRB 604. However, after it carne into compliance , the GCC renewed its demands upon the Company on January 23, 1953 , and the Company again refused to bargain with it as shown in its letter of January 27, set forth above 2012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the trustee or administrator for Local Division 280, even though the suspension of these strikers had become a strike issue, but insisted that it would deal only with the contracting Lowell Local about the matter. Markham's testimony as to his knowledge on June 27 that the 19 employees in question had not returned to work because of their adherence to the Association's strike was contradictory. One version of his testimony in this regard was that at the time he sent the letter, he did not know the reason for the 19 employees' failure to return to work with the other Lowell employees, that he did not observe them on the Association's picket lines between June 22 and 24, that he first saw them on a picket line at Lowell during the first week in July for a portion of a day, and that subsequent to June 27, he learned that they did not return to work because they were still on strike. However, he also testified that shortly after the first strikers returned to work on June 22, other employees who had not appeared for work were sought out to ascertain whether they would be returning and that "some of them said they would come, and they never came; and others said they didn't like the terms and conditions that others had returned-there were all kinds of excuses." At another point, Markham testified as follows: Q. (By Mr. Kowal.) Did you, at any time, either before or after June 27, 1952, discover that these nineteen men opposed the back-to-work movement led by Mr. Lyddy or Mr. Casserly7 A. It was quite evident they opposed it. They didn't return to work. Q. That was evident- A. Public knowledge that they didn't return; they opposed it. Q. It was evident on or about this time, on June 22, 23, and 24, why they didn't return to work, wasn't it? A. Not to my knowledge. Q. . . Well, when did it become public? A. When the other Locals picked the issue up and made it public.. . Sometime between June 26th or 27th, whatever it was, and July 15th, when they returned to work. Markham's testimony in this regard was unconvincing, as was his following ex- planation for the inclusion of the second paragraph in his letter of June 27: Q. (By Mr. Gromfine.) Why, then, Mr. Markham, in this letter of June 27th, in the second paragraph, did you find it necessary to-and I quote- say, "Such termination is not because you failed to go through the picket line-that is your business-but because of your own accord, you made yourself unavail- able for work when needed." Why was the picket line incident at all relevant to what you were saying in this letter if, for all you know, they were all sick? A. Well, just to clarify the situation, to make sure that they didn't misunder- stand, nor I didn't misunderstand them . it was just to impress upon them, as well as myself, that I wasn't interested in their problems, whether they were on the picket line, whether they were working elsewhere, whether they were sick, or what. The mere fact that they had three misses, they didn't report for work-that was it. [Emphasis supplied.] Contrasting Markham's unconvincing testimony with other evidence in the record indicating that at least some of the 19 employees in question must have partici- pated in the picketing from June 22 to 24, 1952, at Lowell-such as testimony of some of these strikers that they continued on strike until July 15, and the fact that the Association gave MacLean, one of the 19 strikers and acting president of Local Division 280, a check, dated June 26, 1952, in the amount of $50 to cover the ex- penses incurred by the Lowell Division employees who picketed the Company's Lowell operations from June 22 to 24, and also paid additional strike benefits to the 19 Lowell strikers-the Trial Examiner rejects Markham's testimony that on June 27 he was not aware that the 19 employees in question were continuing the Association's strike against the Company. Upon the foregoing and the entire record, it is inferred and found that the 19 employees were indefinitely suspended by Mark- ham with the realization that their failure to appear for work was due to the con- tinuance of their strike action against the Company. Moreover, the Company's refusal to discuss the suspension of the 19 strikers with the Association and insist- ence that the matter could be handled only by the contracting Lowell Local demon- strated that the suspension of the strikers was not intended as a tactical maneuver. The Trial Examiner concludes and finds that on June 27, 1952, by indefinitely suspending from the Company's employ Archie T. MacLean, Frank Shannon, Fred- erick J. McNamara, Daniel E. O'Neill, John R. Crow, Donald M. Gagnon, John EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2013 Joseph McCabe, Ralph J. McCarthy, J. Lawrenson, P. Fell, T. Crowley, J. Barbieri, H. Heafy, T: Kilmartin, 0. Ange, Patrick Cox, Fred R. Leibold, Dustan B. Kelley, and Raymond McCarthy, because they did not follow the back-to-work movement of the Lowell Local but instead continued to support the Association's strike, the Company 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).38 (g) Conclusions as to the Company 's unlawful assistance to the Lowell Local and its successor the Transit Workers It is too clear for extended argument that on June 25, 1952, by executing the con- tract with the Lowell Local for an inappropriate unit-in the face of the Association's demands, and during the negotiations between the Company and the Association, for a contract covering all employees of the Company in the appropriate unit-the Company lent the Lowell Local unlawful assistance and support. Moreover, the Company afforded the Lowell Local additional assistance when it indefinitely sus- pended the 19 strikers because of their refusal to abandon the strike of the Asso- ciation and join the back-to-work movement of the Lowell Local and when it took the adamant position that it would discuss the matter of reinstating the suspended employees only with the Lowell Local and not with the Association or the GCC. The Company thus indicated that the only manner in which the suspensions might be rescinded was through the intervention of the Lowell Local in behalf of the 19 strikers and thereby greatly enhanced its already entrenched position as the collec- tive-bargaining representative of the employees of the Lowell Division. By the fore- going and by other statements and acts, hereinafter related , the Company contrib- uted support and assistance to the Lowell Local in violation of Section 8 (a) (2) and (1). When the Transit Workers was formed as the successor to the Lowell Local, the latter's contract with the Company was assumed by the Transit Workers. As this contract was unlawful, the Transit Workers was the beneficiary of support from the Company. Moreover, since the contract contained union-security provi- sions and since the Transit Workers has never complied with the filing requirements of Section 9 (f), (g), and (h),39 the Transit Workers' succession to the contract was also violative of Section 8 (a) (2) of the Act 40 2. The Company's alleged violations of Section 8 (a) (3) and (4) of the Act in respect to employees of the Lowell Division a. General considerations The complaint alleged that after the conclusion of the strike on July 15, 1952, the Company had unlawfully discriminated against six employees of the Lowell 88 National Gas Company, 99 NLRB 273; Patterson Steel f Forge Company, 96 NLRB 129. The suspensions would be violative of Section 8 (a) (1) even if it were assumed that they were a tactical maneuver designed to induce the strikers to abandon the strike and resume work. See Aldora Mills, 79 NLRB 1, and cases cited therein as The Trial Examiner has been administratively informed that the Transit Workers is not in compliance with Section 9 (f), (g), and (h) of the Act. ie Knickerbocker Plastic Co ., Inc., 104 NLRB 514. As set forth in the introductory section of this report, the complaint alleged that by certain specified acts, including the execution and administration of a contract with the Lowell Local, the Company engaged in violations of Section 8 (a) (2) of the Act. For the reasons set forth in footnote 39, supra, it is found that the General Counsel's motion to conform the pleadings to the proof, which was granted , was designed to correct the date on which the complaint alleged that the Company 's violation of Section 8 (a) (2) commenced ; and since the issues in respect to such allegations were fully litigated , the Trial Examiner finds that the Com- pany's contribution of unlawful support and assistance to the Lowell Local began on June 25, 1952 . As noted in the margin above, this date is within the period of limita- tion in Case No. 1-CA-1287 ; and had this case not been consolidated with Cases Nos. 1-CA-1390 and 1-CA-1374, the findings as to the Company's conduct prior to July 10, 1952, on which date the statutory period of limitation in the latter two cases commenced to run, would have been consideredoas background and the Company's violations of Sec- tion 8 (a) (2) would have been held to have commenced on July 10, 1952, and continued thereafter by its refusal to discuss with the Association or the GCC matters relating to the reinstatement of the 19 suspended strikers , administration of the unlawful contract with the Lowell Local, and continued recognition of the Lowell Local , and its successor, the Transit Workers, as the collective -bargaining representative of the Lowell Division employees , and by other acts and statements related below. 2014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Division by discharging or indefinitely suspending them and against employees MacLean, Cox, and Halloran by suspending them for various periods of time on several occasions. All but Halloran were among the group of 19 strikers whom, as found above, the Company illegally suspended on June 27, 1952, because of their refusal to abandon the strike. However, at the end of the strike, all of the group of 19 strikers except Kilmartin, who apparently did not choose to resume his em- ployment with the Company, returned to work in the Lowell Division, pursuant to the strike-settlement agreement. As detailed above, the intraunion dissension between the employees who had originally opposed the back-to-work movement of the Lowell Local and the adher- ents of the latter organization continued after the strike was ended. On September 8, 1952, a trial of Casserly and other officers of the Lowell Local was conducted by a committee appointed by the Amalgamated and on October 23, 1952, Casserly and Kelley were expelled from the Amalgamated. In the meantime, on September 12, 1952, the membership of the Lowell Local had voted to suspend from membership and bar from their union hall "the members who did not return to work with the majority and are acting against the best interests of this Local" until they filed "grievance blanks with the Secretary" and made public apologies to officers and members of the Lowell Local. On November 1, 1952, the Lowell Local severed its affiliation with the Amalgamated and formed the Transit Workers. Meanwhile, the Amalgamated had appointed International Officers Stack and O'Brien as trustees to take over the affairs of the Lowell Local and to preserve the identity of Local Division 280. To these trustees and Local Division 280 the above discriminatees adhered. On November 13, 1952, the Transit Workers posted a notice in the garage of the Lowell garage stating in part: In the near future, notices will appear signed by Robert Stack and John F. O'Brien calling meetings in Lowell by the Amalgamated. An attempt will be made to turn this local over to suspended members. At the last regular meeting it was voted by the membership to suspend any member who might attend any such meeting or be in contact with any of the above. Against this general background of dissension among the two groups of employees of the Lowell Division, the facts relating to the Lowell employees whose suspensions the complaint alleged were discriminatory will be set forth, seriatim. Conclusions as to the legality of the Company's action taken against the employees, McCabe excepted, will be detailed after the facts as to the entire group of suspended em- ployees are determined. b. Employees indefinitely suspended (1) Dustan B. Kelley Kelley had been in the Company's employ as a bus operator for 16 years prior to his indefinite suspension on August 14, 1952. On July 24, 1952, Thomas Markham, manager of the Lowell Division, posted the following notice on the bulletin board at the Lowell garage: I have received a letter from Mr. Wilkinson [assistant general manager of the Company], dated July 23, 1952, calling to my attention the number of men taking time off for personal reasons . Because of the personnel situation being what it is at the present time, no employee will be granted time off for personal reasons. Every employee reporting sick will be investigated, and if the em- ployee is found to be lying, drastic action will follow. The discipline card signed by Kelley on August 14, 1952, read as follows and described the incidents leading to his indefinite suspension on that date: On . . . Sunday, August 10, 1952, a lady called and left word at the garage prior to the day foreman's arrival that you would not be in for work, but that you would be in on Monday. A notice was posted recently that no employee was to be out for personal reasons. You were told on Monday, August 11th, to see Mr. Markham, which you did not do. On Wednesday, August 13th, you had to be told again to go to the front office. - In the future, you are not to have anyone call or call yourself to get off. You are to report for work each day. Suspended indefinitely, August 14, 1952. In regard to the apparent inconsistency between the statements on the card setting forth on the one hand standards of conduct which Kelley should follow in the future and on the other hand asserting that Kelley was indefinitely suspended from the EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2015 Company's employ , Markham testified that he expected Kelley to process a grievance through the various steps of the grievance procedure . Accordingly , Markham must have anticipated that the indefinite suspension of Kelley would be rescinded or re- duced to a number of days and that Kelley would be reinstated ultimately. Kelley's credible and uncontroverted testimonial version of his conference with Markham on August 14 , 1952, was that Markham "showed me a discipline card and specified I shouldn 't be getting off for personal reasons . Markham was burned up because I didn't come in to see him before , and I told him that [ Foreman] Tremblay didn 't specify any specified time to see him. So [Markham ] said, `There has been a new school formed here today, . I hate to do this but you can work today but Friday and Saturday are your regular days off and that you are suspended indefinitely .' " Kelley told Markham that he had been ill on August 10 and had had a friend telephone the Company and report that he would be absent , but Mark- ham told Kelley that the latter "should have called the foreman " himself. Ac- cording to Kelley, "I had been off before with somebody else calling and it was all right." Consonant with the notations on Kelley's discipline card quoted above, Markham testified that Kelley was indefinitely suspended because he took a day off without permission and because he did not report to Markham when told to come to Mark- ham's office and discuss the matter of Kelley 's missing work on August 10. In re- spect to the latter ground , Markham admitted that he knew that Kelley was working from August 11 to 14. Markham further admitted that the gist of Kelley's offense was his absence from work on August 10, that the Company had notice of Kelley's prospective absence prior to the time he was due to report for work, and that Kelley's absence did not cause the Company to omit any of its scheduled bus operations that day. Later in his testimony , Markham recalled another reason for the imposition of the suspension, namely, that on August 14, 1952, Kelley admitted that on the pre- vious Friday and Saturday , when he was off duty, "he had been drinking, and he wasn't able to come to work on Sunday morning, and he had this lady call up." Kelley, on the other hand , specifically denied making these statements to Markham and testified that Markham "accepted what I told him in the office that I was sick; he went no further ." Upon the entire record, the Trial Examiner 's observation of the witnesses , and the significant fact that the notations on the discipline card, which was prepared by Markham , failed to buttress the latter 's testimony in regard to Kelley's alleged admission that drinking was the reason for his absence on August 10, the Trial Examiner finds Markham's testimony as to Kelley 's statements regarding his drink- ing to be unentitled to credence and credits Kelley's denials. Markham testified in answer to a question of the General Counsel as to the nature of Kelley's employment record that "it wasn't too good" and that such record might have been considered by Markham in reaching the determination to suspend Kelley indefinitely for missing on August 14.41 Kelley's personnel records indicated that he had been disciplined in the past by the following suspensions - In 1938, a 1-day suspension for being absent from work; in February 1945, a half -day suspension for being absent 3 days from work; in December 1945, a half -day suspension for failing to stop his bus and pick up 4 passengers ; in 1947, a half-day suspension for failing to take on passengers of a disabled bus; in 1948 , a half-day suspension for an 41 For many years, the contract between the Association and the Company has con- tained the following provisions as set forth in the latest agreement executed in 1950 : If any employee has gone nine ( 9) consecutive months without eiror, his record shall be considered clear , and if it is not clear , his recoid shall be consideied from the last nine ( 9) months clear period, and in no event shall a man 's record be considered for a longer period than eighteen ( 18) months prior to the suspension or discharge. Counsel for the General Counsel and for the AFL Unions contend that Manager Markham and E Russell Withrow , who was manager for the Haverhill Division, did not observe the above provision in attempting to justify the reason for disciplining employees in their re- spective divisions . In fairness to the witnesses , it is to be noted that much of the testi- mony respecting the history of previous disciplinary action taken against the alleged dis- criminatees was evoked , as in the case of Kelley , by questions of counsel inquiring as to Markham ' s and Withrow's opinion of the ability of or employment records of the em- ployees However , Markham testified that in determining to discipline employees lie referred to their entire history with the Company in many instances . According to his interpretation of the above contractual provision , it did not prevent a reference to past reprimands of an employee for specified acts, when the employee again committed the same offenses. 2016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD avoidable accident; and in August 1949, a half-day suspension for absenteeism. The latter was the last suspension prior to his indefinite suspension on August 14, 1952. In contrast to the indefinite suspension of Kelley for missing a day's work, with notice, is the discipline given by Markham to two other employees for absenteeism. The discipline card of John Garrity read, "October 12, 1952, you missed. You were contacted by the foreman and told you had to go to work, you were needed. You refused to go to work." For this conduct, Markham suspended Garrity for only 1 day. The discipline card of operator E. Latham, who was ultimately indefinitely suspended, showed the following absences: "June 22 to 26, 1952, did not return to work; June 27, July 8, July 9, off for personal reasons; July 10, 11, August 1st, missed; August 2nd, 3rd, off, no report; August 8, off, personal; August 17, off, missed; August 18, off, no report. During all this time off, was on vacation for three weeks on request"-July 13 to 19, July 20 to 26, and August 10 to 16- "suspended indefinitely, August 18, 1952." In regard to Latham, Markham testified, "Operator Latham came into my office on August 26, 1952, and said he was going to sever his connections with the Company." Thus, it appears that Latham determined to quit the Company's employ following his vacation from August 10 to 16. The contrast in the degree of absenteeism between the record of Latham and that of Kelley is obvious. Moreover, it is to be noted that no discipline was given Latham for the individual periods of absenteeism.'2 (2) John J. McCabe McCabe was a bus operator in the Lowell Division. Two discipline cards concern- ing incidents which led to his indefinite suspension as of August 18, 1952, were intro- duced into evidence. The first was as follows: June 22-July 15. Did not return to work July 21 Off-personal July 22 Off-personal Aug. 8 Off Suspended 1 day Aug. 11 Off, Reported sick Aug. 18 Off Missed Was booked for Run #21 due out at 5:10 a. m. Called Foreman at 4:50 a. in. and said he was not coming to work. Foreman Tremblay told him that he had to come as he had no report man and already had 2 day runs open. McCabe did not report at 5:10. As a result bus went out late. 5:25 a. in. from Wood's Corner 20 min. late. Foreman had to call regular night man up to pull out this run (Shugrue) Run pulled out on over- time rate. Suspended indefinitely Aug. 18, 1952. At the bottom of this card appeared the handwritten words "Short 8/16/52-62.20." Markham could not recall the date on which these words were added to the card. The reverse of the card bore the handwritten statement, apparently of McCabe, "This statement is not true. John J. McCabe." The second discipline card in question merely stated, "Misappropriation of Com- pany's Funds Aug. 13, 15, 17, 19, 1952-$62.20." The reverse of the card bore McCabe's signature with no comment. McCabe did not appear as a witness at the hearing and the testimony of Markham and the Company's records stand uncontroverted. Markham testified that McCabe "couldn't be found on August 18," and he did not come to Markham's office until several days thereafter, at which time the following occurred: Well, I asked him what was the matter with him, why he had been doing the things he had been doing, and why he had been getting off, and why he hadn't been coming to work, and why he hadn't been giving the Company the money, so on. I asked him if he realized that in 1949, he had been fired for misuse of the Company's money. His case was appealed to the Executive Council, and he was put back by the President of the Company, with the understanding that he'd never misuse the Company's funds. He'd give it after the completion of his day's work, what belonged to the Company. He admitted it was true. He took his card, signed it for misappropriated Company funds. u For the purpose of this report, it is unnecessary to resolve the conflicts in the testi- monial versions given by Kelley and Austin Lyddy, recording secretary of the Lowell Local, as to the action taken by the Lowell Local upon Kelley's request that it process & grievance concerning his suspension. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2017 Q. (By Mr . Maloney.) Did he also admit in your conversation with him that he had been mishandling funds? A. Yes, he did. The record shows that when J. I. Donovan, president of the Company, notified the president of Local Division 280 by letter dated June 20, 1949, of the Company's decision to rescind the discharge of McCabe for misuse of Company's funds, Donovan also stated: Inasmuch as this decision by the Executive Committee is based upon your plea for clemency, we feel that it is unnecessary for us to point out to you that should there be a re-occurrence of the violation of the rule that led up to Mr. McCabe's suspension, he will be immediately discharged. Upon the foregoing and the fact that Markham indefinitely suspended another operator, W. E. Mitchell, for mishandling funds of the Company in December 1952, the Trial Examiner finds that, despite conclusions reached as to other issues, a pre- ponderance of credible evidence fails to sustain the complaint 's allegation with respect to the indefinite suspension of McCabe on or about August 18, 1952.43 (3) Daniel E . O'Neill O'Neill was a bus operator for the Company for about 14 years prior to August 19, 1952 , when his name was removed from the Company's roster of employees. From November 1951 to January or February 1952, and from March 12 to about September 13, 1952, O'Neill held a part-time job for the Commonwealth of Massa- chusetts but continued to work as an operator for the Company until he was dis- charged under the circumstances related below. On July 24, 1952, Manager Markham posted the following notice directed to the attention of "operators and automotive dept." of the Lowell Division: I HAVE BEEN NOTIFIED BY THE UNION [ that is, the Lowell Local] THAT AT A REGULAR MEETING HELD ON JULY 22, 1952 IT WAS. VOTED BY THE MEMBERS THAT SEC. 55 OF THE COMPANY RULE BOOK BE LIVED UP TO AND NO MAN BE ALLOWED TO HOLD TWO JOBS. SEC. 55 OF THE COMPANY RULE BOOK IS "NO EMPLOYEES WILL BE PERMITTED TO ENGAGE IN ANY OTHER OCCUPATION OR BUSI- NESS EXCEPT BY PERMISSION OF THE SUPERINTENDENT OR MANAGER." UNDER NO CIRCUMSTANCES WILL PERMISSION BE GRANTED. THE COMPANY WILL MAKE EVERY EFFORT TO INFORCE THE ACTION VOTED BY THE UNION. I HAVE RECEIVED A LETTER FROM MR. WILKINSON DATED JULY 23, 1952 CALLING TO MY ATTENTION THE NUMBER OF MEN TAK- ING TIME OFF FOR PERSONAL REASONS. BECAUSE OF THE PER- SONNEL SITUATION BEING WHAT IT IS AT THE PRESENT TIME, NO EMPLOYEE WILL BE GRANTED TIME OFF FOR PERSONAL REASONS. EVERY EMPLOYEE REPORTING SICK WILL BE INVESTIGATED AND IF THE EMPLOYEE IS FOUND TO BE LYING, DRASTIC ACTION WILL FOLLOW. ANY EMPLOYEE OFF SICK FOR ANY SEVEN DAY PERIOD WILL. BE REQUIRED TO FURNISH A WRITTEN STATEMENT FROM THE ATTENDING PHYSICIAN BEFORE RETURNING TO WORK. The contract executed by the Company and the Lowell Local on June 25, 1952, contained the following provision regarding leaves of absence: 13 The General Counsel argues that McCabe was indefinitely suspended on August 18, 1952, for absenteeism and "later apparently given the same penalty for a shortage of $62.20." Although it is possible to reach such a conclusion from the notations on the discipline cards of McCabe , Markham's testimony , undenied by McCabe, was to the con- trary. Markham denied that McCabe was indefinitely suspended for missing. When asked whether he told Foreman Tremblay to suspend McCabe indefinitely on August 18, 1952, Markham testified , "I don't know whether I did nor not. I could have told him to book him off, which I believe I did-book him off until he saw me." In view of this tes- timony of Markham , the Trial Examiner is impelled to reject the contentions of the Gen- eral Counsel in this regard. 338207-55-vol. 110-128 2018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leave of absence , illness excepted , shall be limited to thirty ( 30) days in any three months , except when a longer period is granted by the Manager, and is approved by the Local Division concerned. It appears that rule 55 , quoted in the notice above, was enforced more stringently during depression periods in order that the work might be shared more equitably and that an employee would not hold 2 jobs . According to Markham , the Lowell Local, in July 1952, became concerned about the enforcement of the rules , because during the summer of that year the Company had found it necessary to reduce the working force of the Lowell Division. In order for an employee to hold 2 jobs, 1 with the Company and 1 outside , for any period of time, it was necessary that he obtain permission to do so through the means of a leave of absence . Markham testified that in order for employees to obtain a leave of absence , "it has always been the practice that they first ask the Union for the leave of absence, and it is taken up or discussed at Executive Board meetings , or what-not , and the Union notifies the Company that so and so has requested a leave of absence , and they favor it, that is, the Union favors it ; and I never knew of any instance where the Company has refused it when the Union has favored it and asked for it." On August 12, 1952, Manager Markham sent O'Neill the following letter: My attention has been called to the fact that you have received an appointment to the State Department of Public Works in the Highway Traffic Division as an inspector . I understand this appointment is good until June 30, 1952. I am calling your attention to Rule No. 55 of the Company Rule Book, that you are not to be employed anywhere else and work for us at the same time. I am allowing you your choice . If 1 find out in the future that you are on the State payroll and working here on any one day, it will be cause for your immediate discharge from this Company. Shortly thereafter , O'Neill, who was on vacation at the time , encountered Markham in a restaurant , and according to the credible testimony of O'Neill the following occurred: . [Markham] asked me if I was working for the State , and I asked him what he wanted to know for , and he said , he wanted to give me a little advice. t said , yes, I was still working for the State. He said, I want to give you a little bit of advice I'd put in for a six-month leave of absence if I was you. I said to him, I guess that is what I will do. I might as well do it now. He said he would put it in for me.'1" O'Neill admitted that he never requested a leave of absence through the Lowell Local because he "was barred from the union hall" but stated that Local Division 280, of which MacLean was acting president , had approved such a leave. The record does not show whether Local Division 280 had communicated such approval to the Company. On August 15, 1952, Markham sent O'Neill the following letter: I cannot grant you six months leave of absence as you requested. Please inform me before Monday, August 18 , 1952, as to your intentions in regards to working for this Company or the State. After Monday , the 25th, if I have not heard from you and I find that you are working for the State , I'll be forced to drop you from our roster. On August 17 or 18, 1952, O'Neill's vacation period ended but he was unable to resume his work with the Company because of illness and his doctor 's orders that he should not drive buses. O'Neill notified the Company of his illness and received permission to be off from duty on August 17 or 18. At that time, he encountered Markham in the garage and they had a conversation . Considering the manner in which leaves of absences were granted and the fact that a leave of absence was necessary to enable an employee to work at an outside job and retain his status with the Company , the testimony of Markham and O'Neill as to their con- versation is mutually reconcilable , as neither denied the other's statements and as 44 Markham testified that he did not believe he had any discussion regarding the leave of absence with O ' Neill in the restaurant . From the letters of Markham to O'Neill it is clear that these was some conversation between them regarding the leave of absence The Trial Examiner believes Markham's recollection was not clear on this point and credits the testimony of O'Neill That is not to say that Markham's version of the conversation, not otherwise at variance with that of O'Neill , is rejected . For the purpose of this report, it is not necessary to set forth the details of Markham 's lending O'Neill some money and giving him a week's vacation pay. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2019 the gist of conversation was in large measure similar in each version. It is accord- ingly found that the following occurred in the conversation (I) as testified to by O'Neill and (II) as related by the testimony of Markham: (I) According to O'Neill, the following was said: And I don't know how the conversation come about. We started-I was pretty friendly with Mr. Markham. He said to me, "You better make your peace with Casserley. . . . You won't get that leave of absence unless Casserley ap- proves it. . . . There is only two men on the whole Eastern Mass. probably that count.... First in command is Tom Wilkinson. . Next to that is Casserley because Casserley has broke the back of the International Union. Why don't you go down and see Quinn and pay him the $20 assessment." I believe they had voted a $20 assessment, something like that. He said, "Straighten out whatever you owe with them . . . and you will get that leave of absence." . . . I told him I didn't know if I was going to return to the State. I told them I was going back on the buses. I said, "You know, Tom, I am not in a financial position, through sickness and the likes of that and the family, that I could not loaf, . . . the doctor don't want me at this time to drive buses . . . that work there he has said that it is suitable for me to do." So he said to me, "You're not going to get the leave of absence without Casserley's approval." (II) According to Markham, the following was said: I met Mr. O'Neil in the garage, and he told me that he had received my letter, and that he had just come from the foreman's office, and he booked himself off sick. I asked him if he were sick, and he said yes, he was; that his doctor had advised him that he should not drive a bus, I believe, and I told him that I was going to allow him to be off for sick reasons; and that if he were off over seven days, that he was to bring me back a certificate from the doctor certifying his illness, but I emphatically told Mr. O'Neil that if he were found working for the State during this time that he booked himself off sick, it would be cause for his immediate drop from the roster. He'd be no longer considered an employee of this Company. On August 19, 1952, Markham learned that O'Neill was working that day "at his desk at Commonwealth pier for the State Department of Public Works," and that evening in a telephone conversation, Marham's undenied and credited testimony shows that he told O'Neill that "he had booked himself off on the sick list, and that I had called his attention, in both writing and orally, that he was working for the State when he should be working for us, and that I had no other alternative but to consider him dropped from our roster. On August 26, 1952, the Association filed its initial charge in Case No. 1-CA-1287, asserting that the Company had engaged in various unfair labor practices, including the following: "On or about August 15, 1952, Daniel E. O'Neil was refused per- mission to hold an outside job because of his activities on behalf of the charging labor organization." Service of this charge was effected upon the Company on August 28, 1952. In the meantime, O'Neill's health improved and about August 27, 1952, his doc- tor gave him permission to return to the work of operating a bus. Shortly there- after, O'Neill telephoned Foreman Russell McElhom and told him, "Take me off of the sick list for Sunday, I will report back Sunday." McElhom replied, "Okay, Danny, I'll put you in the book." However, on Saturday morning, August 30, 1952, Foreman McElhom telephoned O'Neill and said, "Markham left word that you can't return to work tomorrow." Thereupon, O'Neill telephoned Markham and when O'Neill asked the reason he "couldn't return to work the next day," Markham countered, "You got charges that you were fired before the National Labor Relations Board, haven't you?" O'Neill explained, "No, I haven't, Tom. . . I have charges but not that I have been fired." Markham then said, "I don't know, looks like you will have to wait until the NLRB puts you back to work," but "let me call Boston, . . . I'll call you by 3 o'clock this afternoon." When he did not hear from Markham by midafternoon, O'Neill telephoned the Lowell garage and spoke to Bill Harrington. He asked Harrington, "Are you booking my job for tomorrow?" and Harrington replied that he would "have some- body get hold of me that his orders were that I was not to go on according to Markham." A few minutes later, Markham telephoned O'Neill and said, "You called Har- rington and told him you were going to show up tomorrow. . . . You can't. . . . I was talking to Boston, . . . You can't return to work." O'Neill inquired, "Am I 2020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fired?" Markham said, "No." O'Neill asked, "Am I suspended?" Markham replied, "No." O'Neill queried, "Am I disciplined?" Markham answered, "No." O'Neill's last question was, "Have I become furloughed?" Markham said, "No .. . just can't go to work." ' (4) Frederick J. McNamara McNamara was a bus operator for the Company for 71/2 years prior to his in- definite suspension on August 21, 1952. On Friday, August 15, 1952, McNamara's bus was involved in a slight accident with an automobile. At the close of his work- day, he turned in a report on the accident. On August 16, 1952, the driver of the automobile involved in the accident with McNamara's bus came to the Company's offices at Lowell and claimed that his car had been damaged. Arrangements were made for the Company's claim agent to consult with the car owner. McNamara worked on August 16, had the day off from work on August 17, worked August 18, and had August 19 off from work. Manager Markham sent word through his subordinates to McNamara that Markham desired to consult with him about the accident. McNamara received the message on the morning of August 20 and came to Markham's office. According to Markham's uncontroverted testi- mony, which is credited, McNamara "came rushing into the office. He wanted to know what it was all about, why he was being called into the office, and so on." Markham informed McNamara that after investigating the accident, Markham had learned that McNamara's bus had hit the automobile but McNamara had failed to mention this fact in his report of the accident. At some point in the conversation, according to Markham's undenied testimony, McNamara said, "Mr. Shea, who was a previous Manager-he was a `B,' with a capital, Mr. Morris was a son-of-a-'B'; but you, Markham, you are a big `P.' " Thereupon, Markham told McNamara that he was suspended from work pending investigation of the accident. Not long after McNamara left the office, Markham received telephone calls from two passengers who had been on the bus at the time of the accident and who reported that McNamara had interviewed them. Markham sent the Company's claim agent to see these passengers. The next day, McNamara came to Markham's office. Markham's credited testi- monial version of conference was that the following occurred: [McNamara] first told me that he had been to see all the witnesses, as well as the claim agent of the automobile involved in the accident. And I called the claim agent [of the Company] into my office and had McNamara repeat what he told me in the presence of the claim agent; and I asked McNamara if he realized what he had done, and he had no right to do it, to go around and see these witnesses, and neither had he any right to interfere once he had turned the report into the Company, unless the Company asked him to do so. And I asked him if he hadn't done this before, and he admitted he had; and I told him that under the circumstances, I had no other alternative but to suspend him indefinitely. McNamara's version of the conversations with Markham on August 20 and 21 varied considerably from that of Markham. It was McNamara's testimony that on the morning of August 20 he was told by a foreman that McNamara was suspended and that he immediately went to Markham's office where the following ensued: I said, "What's the story, Tom?" He said, "We are sick and tired of all the accidents around here. Why the hell didn't you say you hit the car?" I said, "I didn't hit the car, both came in contact when we were both moving." He said that was a lie and the witnesses said I had hit the car. I asked him how long I was suspended for and he said, indefinitely. I told him that I was going to go and see the witnesses; that I didn't believe they said the car was stopped and I deliberately hit it. . . I told him I was going to bring one of the pas- sengers in, a patrolman in Lowell, when I got in contact with him, and he told me to. Thereupon, McNamara interviewed the driver of the automobile involved in the accident and some of the passengers on the bus. On August 21, McNamara told "The findings as to the conversations on August 27 and 30, 1952, are based upon, and the quotations are from, the credible and undenied testimony of O'Neill. Markham was not questioned as to the conversations on August 30, butain testifying as to another mat- ter, Markham stated, "I have got a note here that O'Neill, himself, said that he worked for the State August 25 to 29, so I must have talked with him after that." EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2021 Markham, "I went to see the witnesses and they all stated that nobody from the Company had approached them, all except one fellow, and he was contacted at 10:30 that morning the day I was suspended. That was a half hour after I was told I was suspended indefinitely." McNamara admitted that Markham called the Company's claim agent into the room "to hear something there, to verify anything that I said," and that Markham read rule 79 from the Company's rule book, set forth below. Markham specifically denied that he was informed by McNamara of the latter's intention to interview the witnesses to the accident and that Markham expressed approval of such action by McNamara. As between these two witnesses, Markham impressed the Trial Examiner as being the more reliable and credible. Moreover, his version of the conversations with McNamara is more plausible, considering the subject matter of the rule violated by McNamara, and it appears unlikely that Markham would have called in the claim agent or read rule 79 if he had previously told McNamara to see the witnesses and the claimant and if he had, the day before, already suspended McNamara indefinitely from the Company's employ. Another circumstance supports Markham's version of these incidents. Although the disci- pline cards of McNamara were neither introduced in evidence nor read into the record, Markham testified, in regard to his conversation with McNamara on August 20, "I don't believe there was ever a card made out on the incident, because it would be McNamara's duty to sign the card." Thus, had McNamara been indefinitely sus- pended, as he testified, on August 20, it would appear from the customary proce- dures followed by the Company in such instances that Markham would have pre- pared a discipline card for McNamara noting such suspension and McNamara would have been required to sign the card. In the absence of such a card, one may infer that no indefinite suspension was placed upon McNamara on August 20. For these reasons and upon the Trial Examiner's impression of the witnesses and the obvious necessity for the rule in question, the Trial Examiner credits Markham's version of the indefinite suspension of McNamara and rejects McNamara's testimony to the extent that it was at variance with the credited testimony of Markham 46 It was Markham's position that McNamara's interviews of the driver of the auto- mobile involved in the accident and of the witnesses to the accident were violative of the company rules. In this regard he relied upon the following paragraphs from rule 79 of the Company's Operating Rules, Regulations and Mechanical Manual for Motor Coach Operators: Operator must not employ medical attendance for injured persons at any time except for first aid; nor shall they visit such persons at any time afterward unless specifically instructed so to do by an official of the Company. Operators must not give information concerning any accident, mishap of any kind, or business of Company, to any person other than a properly authorized representative of Company or representative of Department of Public Utilities or Registry of Motor Vehicles. 48 In addition, McNamara testified that at each of two hearings regarding his indefinite suspension before the Massachusetts Unemployment Compensation Commission, "the per- son in charge of the healing" asked Markham "could this suspension have been lifted in ten days Air Markham said it could have been lifted in 10 minutes if" McNamara "had gone to the Lowell" Local. John Crow corrobated McNamara in regard to this statement attributed to Markham. Crow further testified that he had two hearings before the same commission regarding Crow's indefinite suspension from the Company, hereinafter discussed, and at both hearings Markham made the same statement about the possibility of Crow's suspension being lifted as he did about that of McNamara. However, when Crow was asked the dates of his hearings, he stated that the first was in September and the second was held "I think October 20. I wasn't there I was sick at the time." Mark- bam specifically denied that he made the statements attributed to him by McNamara and Crow at the commission's hearings and testified that the examiner of the commission asked Markham at the hearings "whether or not McNamara, to my knowledge, had taken all ways and means of reinstating himself with the Company at his disposal ; and I told him that to my knowledge, it had never been brought to my attention; nobody had ever appealed this case." According to Markham, he gave a similar answer to such a ques- tion regarding Crow. It is the Trial Examiner's opinion that McNamara and Crow mis- construed the latter statements of Markham, but in any event, from the Trial Examiner's impressions of the witnesses, the obvious inconsistency in the testimony of Crow, above, and the reasons appearing elsewhere in this report in appraising the credibility of Mark- ham's testimony as contrasted with that of McNamara and Crow, the Trial Examiner credits Markham's denials of the utterance of the statements attributed to him by Mc- Namara grid Crow and finds McNamara's and Crow's testimony in this regard unentitled to credence. 2022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Markham further testified that when new operators are being trained, they are in- structed by the claim agent as to the procedure of handling accident claims and are instructed, in the case of accidents, to do nothing but obtain the names of witnesses. The settlement- of claims arising out of accidents has in the past uniformly been handled and processed by the claim agents of the Company. Markham also noted that although an accident is comparatively minor, as was McNamara's, it is always processed with care by the claim agents, particularly when there are passengers in the automobile of the claimant, because claims sometimes develop slowly and late. Counsel for the AFL Unions and the General Counsel contend that the language of the above rules does not prohibit a bus operator from interviewing claimants or witnesses to a bus accident. Their argument in this respect is found to be without merit. The language of the above rules is sufficiently general to prohibit interviews by a driver of claimants and witnesses. Furthermore, in the Trial Examiner's opin- ion, there can be no question as to the existence of such a rule and practice. Other- wise the efficacy of the claim agents in settlement of accidents would be considerably lessened. To permit such interviews by bus operators, untrained in legal matters or in the settlement of claims, would obviously augment rather than decrease accident claims against the Company. The claim resulting from McNamara's accident was ultimately settled during the evening of August 22, 1952, the day after McNamara was indefinitely suspended for interviewing witnesses and the claimant to the accident, when the claim agent of the Company called upon the claimant and the latter withdrew the claim. Markham testified that in his employment with the Company he knew of no oper- ator but McNamara who had interviewed the claimant and witnesses to an accident and that McNamara had on a previous occasion interviewed witnesses to an accident in which his bus was involved. McNamara's discipline card showed no reprimand for such conduct and when asked for the reason that McNamara had not been dis- ciplined by the manager who was Markham's predecessor, Markham testified, "Mr. Casserly [president of the Lowell Local] would'nt allow anything to be done to him." In regard to violations of rule 79, which related to operator's visiting claimants, et cetera , the following notation on the discipline card of operator Wolfgang is pertinent: On Friday, August 31, 1951, you had an argument with a driver; without ad- vice or consent from this Company, you took the matter to the police. This action of yours violated Rule No. 79. As a result of your action, I wish to put you on notice that the Company will not bear any costs that might arise from your action. We will also accept no responsibility of any kind on account of your unwarranted action. The record shows that Wolfgang was not suspended for the foregoing incident, which was violative of rule 79, but was merely reprimanded. Inasmuch as the term "operator" was used by the Company to designate the employee driving one of its buses, one may infer that the reference to "driver" in the foregoing excerpt from Wolf- gang's discipline card was to a person other than an employee of the Company. (5) John R. Crow Crow worked for the Company as a bus operator for 20 years prior to his indefi- nite suspension by the Company on August 25, 1952. Markham's version of the incidents which caused him to suspend Crow indefinitely was the following statement which was apparently written by Markham shortly after Crow's suspension and which, was part of the Company's records as to Crow's employment: On August 25, 1952, Operator J. R. Crowe was doing Run No. 20, running time was from 5:30 a. in. to 1:25 p. in., and this run called for a 9:24 a. in. trip from Kearney Square to North Chelmsford. On this day, August 25, two men came to my office. The time was 9:42 a. in. They said they got off a train at the Lowell Depot at 9:29 a. in., walked across the street at the bus stop and waited for the 9:24 a. m. trip to arrive from Kearney Square. The bus came -along and did not even stop at the railroad crossing, which is a dead stop. The bus continued going. The two men took a taxi to my office They gave me their names and ad- dresses and their telephone numbers. I checked with the operating foreman as to the bus, if there was any report-the trip was missed, made, or cut or what-to make sure that the trip was run, and the operating foreman had no report, so I instructed the operating foreman to send a man outside the garage- as this route runs up and down the street-in front of the garage , and to have EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2023 the operator taken off when he returned from his destination, which was North Chelmsford. The operating foreman did that. The operator came into my office, who was Operator Crowe I talked with him about the incident, asked him if he knew that he was to stop and wait at the depot, if he were ahead of time on that particular trip; that there was a nota- tion on the blueprint with an asterisk over it, calling his attention to the fact that he was to connect with a train at the depot on his 9:24 a. in. trip. He said he knew it. He had had this run previously, that is, he had bid it off as a regular run a regular operator. On this particular day Crowe was a spare operator doing somebody's else's work, but he was the one that gave me that information. I asked him if he realized the seriousness of passing up passengers to begin with, and the fact that he had gone over the railroad crossing without stopping, which is positively a dead stop, and he denied the fact that he went over the railroad crossing without stopping. I believe he said that he didn't see anybody there when he arrived at the depot I asked him if he realized that we were fighting for our existence, and the day had arrived when we had to go out on the street and beg passengers to ride on the buses. As a result, I suspended him indefinitely,47 because on his own admission, he knew that he should have stopped and connected with this train. The fact that these people took a taxi and put themselves out to come right up at the very moment, gave me their names, addresses and telephone numbers-I had no other alternative According to Markham, the two men who reported the failure of the bus to meet the train on August 25, were employees of the Boston and Maine Railroad, familiar with the bus schedule. Markham further testified that although the men failed to note the number of the bus which passed them, they gave Markham a description of the operator, sufficient for Markham to identify him as Crow. Markham also testified that at the time in question no other bus was scheduled to pass the crossing, although he admitted that it was a possibility that another bus could have used the route at that time. The Company's buses bore signs showing the destination of a run and those en route to the garage and not taking on pas- sengers were marked "Garage." The bus in question was supposed to make a con- nection with the train's arrival and to wait a reasonable length 'of time if the train were late. In practice, according to Markham, the gate tender, an employee of the railroad, at the crossing by signals informed the bus operator whether the train had arrived or not 48 Under date of September 3, 1952, C. K. Gibson, transportation representative of the Company, wrote Markham as follows: I was told by inspector Kelley of the D. P. U. that he has received com- plaints recently that the North Chelmsford bus has not been making connec- tions with the train due in Lowell from Boston at 9.30 a. in., possibly due to oversight. Will you kindly give this matter your attention. Accordingly, Markham "had an inspection taken at the . . . railroad crossing, passenger count taken there, with instructions to the inspector to watch the train connections and people, operators not stopping, going over the crossing." No operators were found to be disregarding the schedule for meeting the train or the rules in respect to stopping buses at railroad crossings. Markham summed up the basis for Crow's suspension as due to the latter's "failure to do his work properly, to meet the train, as he was supposed to do, not stopping at a railroad crossing, as he should have, and passing up passengers." Crow's version of the incidents on August 25 was as follows: I was driving the bus and supposed to make the 9:24 train from Kearney Square to North Chelmsford. There is a train connection to connect with the train 47 Later in the hearing, Markham testified that the discipline levied on Crow was merely a suspension and not an indefinite suspension Even if this be true, the effect of the dis- cipline was that of an indefinite suspension 48Maikham also testified, "I (lid, believe it or not, go down and talk with the gate tender, and the gate tender told me that he witnessed what went on : those two men ran alongside of the bus, pounding the side of the bus . the gate tender told me some bus went across, and the gate tender told nie the operator's name , and the gate tender asked me not to involve him because he worked with Crowe's father on the rails oad for a num- ber of years " No reliance is placed on this testimony of Markham's because of the ob- vious hearsay nature of the testimony and the failure of the i ecord to indicate when Markham inteiviewed the gate tender 2024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Lowell. I delayed the bus 4 minutes. There was a congestion at the Franklin Cafe so I delayed the bus. I arrived at the depot at 9:35 and not at 9:30 . I did stop the bus. Shortly thereafter , according to Crow, he was taken off the bus and told "to go in and seen the manager ." He went to Markham's office and "Markham , the manag- er, told me he had four passengers that wanted to get on the bus on the previous trip ; that I went by them ; that I went across the railroad crossing at 35 miles an hour, and for doing that I was indefinitely suspended ." Crow denied Markham's charges. Crow testified that on the day in question , he stopped the bus at the regularly marked stop , which was 10 to 15 feet from the railroad crossing , and that he made the connection with the train's arrival and picked up some passengers . Although he recalled that between the crossing and the bus stop there were buildings occupied by a bar, a lunchroom , and a confectionery store, he nevertheless insisted that the bus stop was 10 or 15 feet removed from the crossing . He admitted that he did not stop the bus at the crossing but stated that it was a general practice for drivers on the route to make only one stop at this point , the stop thereby covered the bus stop and the crossing too. A rule of the Company' s operating rules required buses to stop at all railroad crossings "at a point clear of the railroad track and not more than seventy-five feet from it." Markham testified that subsequent to the date that Crow gave the above testimony , Markham had the distance measured from the telephone pole indicating the bus stop to the railroad crossing and that the distance was 120 feet. A photograph of the bus stop and railroad crossing was introduced in evidence. The photograph , as explained by Markham's credible testimony , shows that between the bus stop and the crossing were a hotel , a confectionery store, a barbershop, a vacant store, and a tavern . Markham denied that the practice , testified to by Crow, of making only one stop to cover both the bus stop and the crossing was authorized and stated that in making inspection tours, he had always observed operators make the required two stops at the crossing in question. In November 1948 F. J. O'Donoghue, who was then the manager of the Lowell Division , posted the following notice on the bulletin board at the Lowell garage: SAFETY ------------ STOPS ------------ AT R. R. CROSSINGS THE RULES AND REGULATIONS OF THE DEPARTMENT OF PUBLIC UTILITIES REQUIRE THAT A SAFETY STOP BE MADE AT R. R. CROSSINGS INDEPENDENT OF THE PASSENGER STOP THAT MIGHT BE MADE NEAR A R. R. CROSSING. * * * * * * * AT THE NORTH CHELMSFORD AND CHELMSFORD CENTRE CROSS- ING THE WHITE POLES HAVE BEEN MOVED SO THAT YOU MAKE YOUR PASSENGER STOPS AT THESE WHITE POLES IN EACH DIREC- TION AND THEN DRIVE YOUR BUS TO A POINT JUST CLEAR OF THE R. R. CROSSING WHERE YOU CAN SEE THE TRACKS IN EACH DIRECTION AND MAKE A SAFETY STOP AT THAT POINT. * * * In April 1950 J. M. Shea, who was at that time manager of the Lowell Division, posted at the garage the following notice directed to the attention of bus operators of that division: ON THE NORTH CHELMSFORD, CHELMSFORD CTRE., WILMING. TON AND MIDDLESEX STREET R. R. CROSSINGS OPERATORS WILL MAKE A STOP AT THE WHITE POLE TO ALLOW PASSENGERS TO BOARD AND ALIGHT AND THEN PROCEED AS CLOSE TO THE RAILROAD CROSSING AS POSSIBLE SO THAT YOU MAY OBSERVE A CLEAR VIEW AND MAKE A SAFETY STOP BEFORE PROCEEDING OVER THE CROSSING. THIS IS THE SECOND NOTICE AND PLEASE OBSERVE THIS RULE. Crow's testimony as to the distance between the crossing and the bus stop and as to the practice of making only one stop at this point was clearly not entitled to credence . In view of this circumstance and of the inconsistency in Crow's testimony noted in the margin above, as well as the fact that Markham impressed the Trial Examiner as a more reliable witness than did Crow , the Trial Examiner credits Mark- ham's testimony in respect to the matters involved in the suspension of Crow. The latter's testimony is not credited to the extent that it was at variance with that of Markham. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2025 Markham testified that in his opinion Crow did not have a good employment record as an operator and that he considered this conclusion in determining to sus- pend Crow. Numerous reports of reprimands given Crow in his period of em- ployment were read into the record. They involved infringement of rules to which his attention was directed; however, it appears that the only suspension for such conduct was one for a period of 3 days in 1945. Of this series of reprimands, the only one which bears on the incident of August 25, 1952, is the following discipline card, dated June 6, 1948: On your 8:30 a. in. trip from Westford Street, on Friday, June 4, you ran by people at Page's Drugstore, and these people had to wait several minutes be- fore the regular bus showed up. On November 3rd of 1947, you did the same thing, on the 7:33 a. m. trip. On October 16, 1947, you done the same thing, on the 8:25 p. m. trip to the Highlands. It has been the rule of the Company for many years that buses must not run by passengers, except when another bus is in sight, going in the same direction. I have called this matter to your attention several times. If I have to call it to your attention again, I will do it in such a manner that you will not forget it. I believe you realize that there are plenty of men willing and anxious to operate buses properly. In respect to discipline accorded other employees for similar offenses, Markham was unable to recall that any employee had ever been suspended indefinitely for failing to pick up passengers. Discipline cards for operator Wolfgang showed that the predecessor of Markham as manager of the Lowell Division merely reprimanded Wolfgang in 1951 for passing up passengers on two occasions and for twice failing to make a safety stop at a railroad crossing in 1949. (6) Ralph J. McCarthy McCarthy was a bus operator for the Company for more than 16 years prior to his suspension from work for 2 days on January 20, 1953, and indefinitely suspended on January 21, 1953. According to McCarthy's uncontroverted testimony, he had been suspended only once for infraction of rules prior to the strike launched by the Association in March 1952, but after the strike he was suspended three times prior to the suspensions in January 1953. Thus, on September 13, 1952, he re- ceived a suspension for at least 2 days for taking an incorrect route 49 On Sep- tember 23 he was warned, but not suspended as follows: "You have been reported as not registering 2 pupil tickets that were surrendered to you for 2 pupils' fares. I am calling your attention to rule 89, that all tickets should be registered and turned in. Let this be a warning to you." On November 24, 1952, he was sus- pended for 4 days for running late, driving at excess speeds, and parking in Kearney Square for 4 minutes. On December 8, 1952, he received a suspension for 5 days for not making a complete trip but when he produced as a witness a passenger who stated that she had made the trip on the bus run which he had assertedly omitted, the suspension was revoked. On January 20, 1953, as he was preparing to go out on a bus run, McCarthy received a message "to get in touch with" Manager Markham. McCarthy telephoned Markham and the latter said, according to McCarthy's undenied testimony, "You were talking with a lady passenger, and you took your eyes off the road so I have to suspend you for 2 days, Wednesday and Friday," Thursday being McCarthy's "day off." 50 Before this conversation ended, Markham asked McCarthy to come to the office and sign the discipline card for this suspension. A few minutes later, 0 The record is not clear as to the duration of this suspension. In regard to this dis- cipline, the following portion from McCarthy's discipline card was quoted in the record : "On Saturday, September 13, 1952, you were doing your regular bid off run, this run making the 8: 45-9 :45 a. in., trip to Westford Street by Baldwin Loop, instead of making the Baldwin Street Loop you made the Silver Street Loop and by cutting this trip you made it hard for people having to walk to Silver Street to get the bus. Apparently you cut the service 2 hours instead of every hour. You are suspended 2 working days for 11each trip you cut. In the future if you continue to do it.. . . 50 The discipline card for this offense of McCarthy read as follows : "On your 1: 03 p. in. trip from Westford Street, you talked continuously with a lady from the end of the route to Wilder Street. The woman sat on the seat near the door. You took your eyes off the road on several occasions and turned your head in her direction while operating the bus. You had your bus in gear while passengers were boarding and leaving. Both of these are very serious infractions and could lead to a serious accident. You are sus- pended for two days, January 21 and January 23, 1953." 2026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCarthy telephoned Markham again and asked to be granted a 6-month leave of absence. Markham said, "I can't give it to you, I can't give you even a month.' When McCarthy countered, "Why not, everybody else is getting time off?" Markham replied, "You will have to see the Union about that, I can't do anything for you." On January 21, 1953, a Wednesday and the first day of the 2-day suspension, McCarthy came to the office to turn in his receipts collected the previous day and to sign the discipline card for the 2-day suspension. At that time, McCarthy ad- mitted having talked to the lady passenger and signed the discipline card. Markham then informed McCarthy that he was suspended indefinitely. Upon inquiry from McCarthy as to the reason for this discipline, Markham replied, "I have a spotters report here stating that a mail carrier" boarded "your bus without having a ticket or a fare" on December 15, 1952. McCarthy denied that the incident occurred and stated that he always made "sure everybody paid their way whether it was my own or anybody elses." Markham read, and possibly showed, the following report of an inspector, indi- ,cating thereon the time and place of his boarding and leaving a bus operated by McCarthy on December 15, 1952: Op. wore a green sweater in place of uniform coat Did not collect any fare from letter carrier at Cupples Sq. He exchanged greetings with him as he entered said, "pass" and motioned him inside of bus. No pass or ticket of any kind was shown by this man. Had bus in gear at all times when pas- sengers were boarding or leaving. Rode the clutch repeatedly enroute. Had front sign reading "Westford-Baldwin" instead of "Christian Hill." Left Baldwin and Westford Sts. 5 min. late. His delay in leaving was due to late arrival. Markham then said, "Here a little while back I gave you a chance to prove yourself, prove that you weren't guilty of making a trip and you went out and got a witness or a few witnesses. . Well, . you can do the same thing now.. . I will give you until Friday," January 23, the day on which McCarthy's 2-day suspension ended, "to prove that this man didn't get on the bus without paying, this mail carrier." When McCarthy protested that Markham should have brought the matter to his attention within 4 days after the alleged occurrence on December 15, 1952, Markham stated that he had investigated the matter and quoted the following provision from the contract 51 between the Company and the Lowell Local ,pointing out the section in italics below as authority for his delay in bringing the matter to McCarthy's attention: In matters of discipline it is agreed that an employee shall be informed as soon as possible as to any alleged misconduct or violation of the rules, and in no case shall any employee be charged with, or required to answer any offense not called to his attention within four (4) days from the date the Company first has knowledge thereof, except in cases of investigation of conduct of operators in relation to collection of fares. . . . [Emphasis supplied.] At the close of the conversation McCarthy said, "I worked for two managers or three managers, that there were two managers I could honestly say were men, Mr. O'Donoghue and Mr. Morris." Markham interjected, "Silence is golden," and McCarthy countered, "Not in this case." 52 In respect to the background events which brought about the inspector's visit to Lowell, Markham testified that in late 1952 an irregularity had occurred in the han- dling of strip tickets sold by the Company to the Lowell post office at a reduced rate for the use of letter carriers in riding on the Company's buses when the carriers were delivering mail. It appears that a postal employee had turned in a number of these unused tickets to the Company and had been reimbursed approximately $17. When an auditor of the Company investigated the matter, the local postmaster stated that the redemption of the tickets by the postal employee was not authorized and suggested an investigation to ascertain the identity of such employee. "As a result," Markham testified, "I ordered an inspection in the Lowell Division to see who and how many more were letting letter carriers ride for nothing, and through this inspec- ^ Although McCarthy referred to this as the "AFL rule book," he obviously meant the -contract then in existence Earlier contracts between the Company and the Association had contained the same provision 52 The quotations from testimony in this and the preceding four paragraphs are from -McCarthy's testimony, which was not denied by Markham and which was reconcilable with Markham's veision of the conversations. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2027 tion, this report came in. It was the only report that came in by inspection, whereby an operator did allow somebody to ride free, a letter carrier." Turning to Markham's explanation of the delay in bringing the incident of December 15 to McCarthy's attention, it was Markham's testimony that he desired to talk personally to the inspector who reported that McCarthy had failed to collect the fare of the mail carrier on December 15, 1952, and that because of the inspector's assignments in other divisions of the Company, he did not come to Lowell to see Markham until Sunday, January 11, 1953. Thereafter, Markham investigated the experience of the inspector and found that he had been in the employ of the Com- pany for 28 years. Although Markham's testimony was somewhat vague as to this point, it appears that the inspector also agreed to recheck his notes and ultimately, about January 20, 1953, reaffirmed his report made on December 15, 1952. Returning now to the narrative of events which followed the conversation between Markham and McCarthy on January 21, McCarthy explained the charges made against him to the officers of an association of Lowell postal employees. A short time later, these officers gave McCarthy the following statement bearing the sig- natures of 13 men, who the officers of the Association assured McCarthy were all "the men that worked on that route that day." We, the undersigned, Letter Carriers assigned to delivery of mail in the section known as Highlands section and thereabouts state that transportation to and from said portion of the city is provided by the Post Office Department by means of ride tickets purchased from the Eastern Massachusetts Street Rail- way Co. In the performance of our duties, the facilities of said Eastern Railway Co., are used, and such means of payment are invariably tended to operators of vehicles manned by agents of said Company. Among such operators of the Company's buses with whom we are conveyed to such points on postal routes is one Ralph J. McCarthy, Operator #93 of the Lowell division. We, therefore, state individually and severally, that at no time did Operator #93, Ralph J. McCarthy permit that transportation on the Company's buses be given without payment, or have we offered anything in return for such services rendered by the Company or its agent, Ralph J. McCarthy for the purpose of ,evading the payment of fares. On January 23, 1953, McCarthy submitted the above statement to Markham. After reading the statement, Markham said, "I didn't know there were only 13 mail carriers in the city of Lowell," and asked McCarthy whether he knew that there were approximately 200 letter carriers in Lowell. McCarthy acknowledged that there were that many carriers but pointed out that the 13 who signed the statement were "the men that worked in that vicinity on the day I was supposed to let the mail carrier on for nothing." According to McCarthy, Markham stated, "It doesn't prove a thing, not a thing." When McCarthy inquired, "In other words, I'm suspended?" Markham answered, "You're suspended indefinitely." McCarthy refused to leave the statement with Markham and the interview ended with the following interchange, as shown by the undenied and credible testimony of McCarthy: Well, [Markham] said in order for me to get back on the job again it would have to be someone higher than Mr. Markham. I said, "Who for instance?" He said, "Your local union." I said, "What local?" He said, "The Lowell Transit Union." I said, "Lowell Transit Association?" He said, "Okay, have it your own way." He said to go and see Mr. Casserley. I said, "No, I belong to the AFL." He said, "You're in love with the AFL it seems." In respect to the nature of proof which Markham deemed necessary for McCarthy to produce on January 23, 1953, in' order to establish his innocence of the charge levied by the inspector, Markham testified, "I expected McCarthy to bring the letter carrier" whom the inspector observed board the bus driven by McCarthy at Cupples Square between 2.05 p. in. and 2:20 p. in. on December 15, 1952, "to my office or to give me his name and give me a chance to talk with him, take a statement from him." In regard to past practices of the Company for failure of operators to collect fares from passengers, it appears that McCarthy was the only operator who was indefinitely suspended or discharged for this offense, although there were several instances in the past when operators had been apprehended in not taking fares from passengers. 2028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Employees suspended for varying periods of time on several occasions (1) Patrick Cox Cox has worked for the Company as a bus operator since 1934, "on and off." The last suspension from duty for infraction of rules given Cox prior to the end of the strike on July 15, 1952, was about October 14, 1950, when he was suspended for 14 days; however, he appealed the suspension through the grievance procedure and the suspension was reduced to 3 days. Under date of November 2, 1950, President John I. Donovan of the Company wrote Cox, stating: We wish to advise you that on the basis of your record, since you entered the employ of the Company, you are extremely fortunate that you are still in our employ. We have no comment to make on Mr. Wilkinson's reinstating you after your recent exhibition of flagrant insubordination. The object of this letter is to put you on notice that if you value your job, then you better search the heart and decide to change your attitude toward your work in this Com- pany. This, you may regard as a final warning. Following this suspension and warning, the record contains no evidence of any other suspensions until those which commenced in September 1952. On September 11, 1952, Cox was reprimanded but not suspended for failing to wear his regular uniform while on duty and for collecting only 70 cents of a 75-cent fare from a passenger, but when he explained that the passenger paid the additional 5 cents when she left the bus, his explanation was believed by Manager Markham. On September 12, 1952, Cox was due to start work at 7:10 a. m. He called the garage at 7:20 to report that he had overslept as his alarm clock had not rung. Apparently his name was put at the bottom of the list of operators available for work that day and he was not called for work. In the evening of September 12 he notified his foreman that he was ill and would be unable to report to work. He re- turned to work on September 18, 1952, and although he was told that Manager Markham desired to speak with Cox, the latter did not go to Markham's office until he was summoned by a telephone call at home on September 24. On September 24, 1952, Manager Markham levied a 1-day suspension against Cox for having missed work on September 12. During their discussion on September 24, when Markham noted the frequency of Cox's absences due to illness, Cox explained that he had an arthritic condition which made him physically unable to operate a bus on occa- sions. At Markham's suggestion, Cox agreed to undergo a physical examination at the expense of the Company. It appears that on November 25, 1952, Cox again consulted the Company's doctor, at Markham's insistence, after Cox was absent for illness on November 21. On December 4, 1952, Cox's attention was called "to the number of shortages and `overs' in your daily turn-ins. Make every effort in the future to stay off the shortage sheets." On December 12, 1952, he was reprimanded for leaving a de- parture point 4 minutes late, for making a safety stop with the front wheels of the bus over the first set of railroad tracks, for driving at excessive speeds, for operat- ing the bus with the front door open, and for wearing a sweater instead of uniform coat. He was not suspended for this conduct. Cox's comment on this discipline card was: In 20 years of service I have never stopped my bus on the tracks or near them. I never run the bus with the front door open. The buses are cold enough as they were without having the front door opened with just a pull-over sweater on. According to Cox, none of the buses had speedometers and he was "not a very good guesser" at the speed at which he drove. On January 16, 1953, Markham spoke to Cox about a complaint from a passenger on Cox's bus the previous day in respect to Cox's reluctance to reopen the door of the bus for a prospective passenger, refusing to sell a passenger tokens, and turning corners too rapidly. No entry of this discussion was made on Cox's discipline card. Cox's discipline card shows that he was given a suspension of 2 days, January 22 and 23, 1953, for the following conduct which occurred on January 16, 1953: 3:34 p. m. trip from Carney Square to North Chelmsford, you left your bus unattended in Carney Square while you went into Denise's Store . Several as In respect to Cox's past record, Markham testified that Cox was discharged in 1941, shortly thereafter entered the armed services, and left the services in 1944, and that "because of his good war record, and because we were in dire need of operators, the then manager reemployed him with loss of seniority." EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2029 people were smoking on this trip. You made no effort to ask them to refrain from doing so. On two occasions, coin stuck in your fare box, and you released them by pushing down the stuck coin with a coin of your own. You did not report this fare box for sticking in the usual manner. You were wearing a brown sleeveless sweater in place of your uniform coat or jacket. I am not going to talk to you any more in regards to your infractions as I have in the past. I am going to act. I am suspending you for two days, Thursday and Friday, January 22 and 23,1953. One may infer that Cox discussed the above charges with Markham on or about January 20 or 21, although the record does not affirmatively indicate the date of their conference. It does not appear that Cox informed Markham of the reason Cox stopped at the store; in any event, the explanation given in Cox's testimony is found to be incredible. He admitted that he did not tell Markham the reason for his failure to wear the regulation uniform was that his children had been playing with it and had torn the jacket, because "I figured there were 30 or 40 other bus drivers wearing sweaters and the only one he was signaling out was myself." How- ever. he told Markham: If I turned in the coin box every time the fare box was sticking, I would not complete a trip because all the fare boxes stick because when one of these new nickels is put in if you don't rap it on the side you definitely will not have a ring and it will plug, and if a person drops a dime in after the nickel you posi- tively will have a jam in that fare box. Cox also testified that he did not observe passengers smoking and if he had he would have reprimanded them as he had done in the past. This was Cox's last suspension and at the time of the hearing he was still in the Company's employ. On February 2 or 3, 1953, Cox had conversations on the telephone and at his home with Paul Tremblay, who was a foreman and supervisor of the Lowell bus operators. Cox's testimony, which is credited and which was not denied by Tremblay, shows that the following occurred: [Foreman Tremblay] called me on the phone [at home] and said, "I'm coming up, come down to the car and sit in with me." I said, "What have I done now?" He said, "Never mind, I'll be right up." I said, "I'm not dressed. I just got out of bed. . . . Why don't you come up to the house?" . . . I should say it was about a quarter of 11 when he called and at 11:15 or 11:20 or thereabouts he came up into my home and I asked him what he had on his mind. He told me that because of the past favors that I had done for him that he was up there to try to do me a favor in return. Well, I said, I didn't know what he could do for me but what is it? So he said, "Well, of course, you know . . . the situation that is going on here is pretty rough." I said, "Yes, it is, positively. . . I know that they haven't done too much to me, but I have felt what they have done. They took my 3 weeks' vacation away from me 54 and gave me layoffs that I should never have had. . . I never signed the cards in all the years I worked for the Company that I had signed in the past 3 months." "Well," he said, "if you will, . you can help yourself out a lot." I said, "In what way is that?" He said, "If you will send a telegram to Bernard Alpert-I don't know what his initial is-" he said, "24 School Street, Boston, he's the Regional Director of the NLRB," I said, "Well, in what way will that vindicate me of all these charges?" He said, "Well, you will not be bothered signing the card again and you will go along in the same manner that the other fellows that are in Local No. 1 are going, . . . you can have the job as you so desire it." . . . He said if I would send a telegram. I said, "I don't know who Alpert is." He told me Alpert was the Regional Director down here. I said, "What would you care to have in it?" He said, "That you have no charges or claims against the Com- 54 It appears that Cox had discussed the question of his vacation with Markham. Under the contracts with the Transit Workers and the Association, an employee was required to have worked 1,280 hours within the previous year in order to qualify for a vacation. Cox had worked 1,257 hours during the year and lacked 23 hours of work for qualifying for a vacation. 2030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany." 55 . I said, "What does that mean in regard to these other men that had been laid off? . Will it affect their cases?" He said, "I don't believe it will." I said, "If it will, I will have nothing whatever to do with it because of the fact they have persecuted me in regard to having days off; I had never had that happen before, and the 3 days for the Melrose incident, . . . I didn't think it was proper that I should do that, that I didn't care or want to hurt the men in this labor relations case." He said, "If you won't send it to him will you give me a letter or a note to that effect?" I said, "Well, I've got to go to work now, it is. 12:03, and go to Lawrence . I've got to get ready. . . . I'd like to have this afternoon off to think about it. . Do you think you could get me off?" He said, "Well, I'll call up and see," which he did. He was talking to some Bill, whether Bill Harrington or Kelly, I don't know. He asked if they could book me off sick that afternoon. The foreman in the garage said that he would call us back. About 5 minutes at the most we received a telephone call, and I was booked off. "Well, . . . Paul," I said, "I have got 4 kids and I realize that but I will give my answer at the end of the afternoon." So in the meantime another phone call came from the garage and it seems as though Mr. Tremblay's wife was trying to get in touch with him so after the phone call from the garage he called his home and talked to his wife and he says to me after the telephone conversa- tions were over, "Markham would like to know what Mr Levin [secretary- treasurer of the GCC] has on you?" I said, "Mr. Levin has nothing on me, the only thing we have in common, Mr. Levin is a good union man " . After he received a call from his wife, he didn't have too much to say He wanted to know how Mary felt about it. That is my wife's name. I said that she doesn't feel too good about it when she is going to work and sees me loafing around He said, "You better think about it; don't speak to anybody that will be biased one side or the other. . . . If you want, I will speak to Mary to see that she steers you straight " 56 Later in the day, Cox telephoned Tremblay and told him, "My children may have their stomachs empty and they may not have any shoes on their feet, . . My answer was no." u Cox's name appealed as an alleged disci iminatee for the first time in the amended charges filed by the Association in Case No 1-CA-1287 on September 16, 1952 His name was also on the Associations second amended chaiges in that case, filed November 20, 1952 Significantly, the charges filed in Case No 1-CA-1390 by the GCC on January 30, 1953, were signed by Jesse Levin, its secretary-treasurer Service of these charges was. effected upon the Company on Januaiy 31, 1953 These charges alleged that the Company had unlawfully discriminated against 13 employees because "of their activities on behalf of the chaiging labor organization, and for the further reason that they filed Charges under the Act, of that Charges in their behalf were filed under the Act ' In respect to Cox, the chaige alleged that the Company had illegally disciplined him and MacLean on frequent occasions "because of their activity in behalf of and adheience to the charging- labor organization, and for the fuither season that they filed Chaiges under the Act, or that Charges in their behalf were filed under the Act " 56 Tremblay was not called as a witness and accordingly the above testimony of Cox was not denied by Tremblay Although Mai khan testified that subsequent to the date that Cox gave the above testimony, Markham interviewed Tieniblay and decided not to discipline hint because he denied Cox's version of the conversation, this testimony of Markham, due to its obvious hearsay nature, does not rebut Cox's testimony, undenied by Tremblay A portion of Cox's testimony in regard to the reasons lie stopped the bus at Denise's store on January 16, 1953, was not credible, considered in the light of cer- tain other facts developed in the iecoid and not detailed herein This circumstance has. been considered in weighing Cox's credibility as to his testimonial version of his conversa- tions with Tremblay above, but is, in the opinion of the Trial Examiner, not sufficiently substantial to give one reason to deny credence to all of Cox's testimony Despite the rejection of a portion of Cox's testimony, the Trial Examiner has credited Cox's ver- sion of the Tremblay conversations inasmuch as Tremblay did not deny the statements. attributed to him, as the Trial Examiner was favorably impressed by Cox' s demeanor as a witness when lie testified to the conversations, and as the detailed nature of the testimony in itself has a iing of conviction In making these determinations, consid- eration has been given to Markham 's denials , elicited on cross-examination, of having ever discussed Levee of matters relating to union business with Tremblay. This testimony is. insufficient to negate the conclusions reached as to Cox's credibility and, upon the entire record, the factors ielating to the charges noted above, and the Trial Examiner's observe tion of the witnesses, is rejected. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2031 (2) Archie T. MacLean At the time of the hearing , MacLean had been in the Company's employ as a bus, operator for almost 21 years. As detailed above , International Vice-President O'Brien was appointed trustee of Local Division 280 on June 30 , 1952, after the officers of the Lowell Local had led the back-to -work movement at Lowell and had entered into a contract with the Company covering the Lowell Division. On July 7, 1952, O'Brien appointed MacLean as his assistant in directing the affairs of Local Division 280 and thereafter MacLean was a member of the GCC. Shortly after the strike ended officially on July 15, and work was resumed throughout the Company 's opera- tions, 15 or 16 of the group of 19 Lowell employees who did not return to work when other employees in the division abandoned the strike on June 15 and who were in- definitely suspended on June 27 , all as related above , met and appointed MacLean as their representative in subsequent dealings with the Company. Not long thereafter , MacLean telephoned Markham at the latter's home one evening. The material portion of this conversation as shown by the mutually recon- ciliable testimony of MacLean and Markham was that MacLean informed Markham that MacLean had been appointed a member of the GCC and the 19 employees who had not returned to work at Lowell on June 22, 1952 , had chosen MacLean to act as their representative in processing any grievances which they might have with the Company , and that Markham refused to discuss these matters with MacLean. MacLean testified that immediately after McNamara was indefinitely suspended in August 1952, MacLean telephoned Markham at the Company 's Lowell garage and "asked him if he'd accept a grievance from me and let me try to handle McNamara's case through the regular channels." Markham replied , according to MacLean, "The regular channels are through Casserly," the president of the Lowell Local which exe- cuted a contract with the Company on June 25 , 1952. Markham testified that he had had only 2 telephone conversations with MacLean at times material hereto- the 1 mentioned in the foregoing paragraph , and 1 relating to the reasons for a sus- pension of MacLean in November 1952. This testimony of Markham thus constitutes a general denial to the testimony of MacLean as to the conversation in August 1952. However, Markham did not specifically deny MacLean 's testimony in this regard or the statement attributed to him by MacLean . McNamara 's testimony was partially corroborative of that of MacLean, inasmuch as McNamara testified when asked if he appealed his suspension , " I went to who I thought was my representatives in Lowell , Archie MacLean and Mr. O'Brien." In view of these considerations and the entire record in the case , as well as the Trial Examiner 's observation of the witnesses, MacLean 's testimony as to his conversation with Markham in August 1952 , regard- ing a grievance over McNamara 's suspension , is credited and Markham 's general de- nial of the occurrence of such conversation is found unentitled to credence. The last suspension from duty given MacLean for infraction of rules, prior to those in late 1952 , occurred on February 19, 1937, when he was suspended 1 day for running "into rear of truck that was stopped ." For 7 or 8 years , apparently after 1937, he was on the Company 's supervisory staff and was not subject to the discipline- card procedure. The discipline card for MacLean contained the following notation for incidents occurring on November 6, 1952, for which he was suspended 5 days: On the . 11:42 a. in. trip , from Varnum Avenue, you arrived in Kearney Square 11:38 a. in., four minutes ahead of time. You left your bus and talked on the sidewalk . You left Kearney Square at 11:44 a. in., two minutes late. In all, you were parked in Kearney Square six minutes . You know this is wrong. You have no right to park in Kearney Square six minutes , neither have you any right to operate ahead of time or run late. You are suspended for a period of five days. In the future , if you do not do your work properly, more drastic action will be taken , suspended November 8, 10, 11, 12, 13, 1952. Markham explained that Kearney Square was "our terminal point" and was the "traffic center , the heart of Lowell , where the buses pull in and depart ," and that there was severe traffic congestion at this point. Markham admitted that although he happened by chance to be in Kearney Square at that time and had made the above re- port on MacLean's conduct, he made no effort to send MacLean on his way on schedule or stop him from talking. When MacLean signed his discipline card , he noted thereon , "The first part of this statement is incorrect . The reason I left late was I was waiting for a regular passenger ." He admitted standing in the door of the bus and chatting with two men 2032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the sidewalk, while waiting for the regular passenger who always made the trip to go home for her lunch. The next suspension of MacLean was for a 10-day period and for the following conduct occurring on December 1, 1952, as shown on his discipline card: Bus 2241, Run No. 1, due out at 4:45 a. in., seven minutes late; arrived in Kearney Square at 5:05 a. in., parked bus, went into a restaurant, came out and got into bus and pulled around to Page Street; did not stop on Page Street; passed Lawrence bus stand at 5:11 a. in., sixteen minutes late; made no stop at Page Street at regular Lawrence stand; drove at excessive speed along Bridge Street and down Lawrence Boulevard. On November 6, 1952, you were suspended and warned for doing your work improperly; you therefore are being suspended for not doing your work properly; suspended ten working days, December 2, 3, 4, 6, 8, 9, 10, 11, 13, 15, 1952. In signing the card for this discipline, MacLean wrote "Half-true." He admitted at the hearing that he was late in leaving the garage on this trip, as it was his first trip after a vacation period and he was delayed in getting his supplies checked out. At the square he parked the bus, got out, and set his watch with a company clock at that point. He bought a newspaper and stepped into a restaurant for a package of mints and then got in the bus and drove off. He admitted that he did not stop at Page Street but slowed down and that he was late, but not so late as the inspector's report indicated. When asked whether he had suspended any other operators for a comparable period of time for an offense similar to that of MacLean's conduct on December 1, Markham answered, "I don't know, sir. I can't answer you." On December 16, 1952, McLean was reprimanded but not suspended for leaving a starting point of a bus run 2 minutes late and for keeping the bus in gear at every stop while passengers were boarding or alighting.57 (3) Martin E. Halloran Halloran had been a bus operator for the Company since June 17, 1912. His last disciplinary suspension from duty, prior to November 1952, was one for 7 days in 1942 for an avoidable accident. He followed the back-to-work movement of the Lowell Local and returned to work on June 22, 1952, prior to the official end of the strike. Thereafter, his dues in the Lowell Local were checked off, pursuant to a practice of long standing. As mentioned earlier, in September 1952 a committee appointed by the Amalgamated conducted a trial for President Casserly and other officers of the Lowell Local, and as a result of the trial, Casserly and Kelley were expelled from the Amalgamated. On November 1, 1952, the Lowell Local severed its connection with the Amal- gamated and formed the Transit Workers. Because of these developments, Halloran on November 6, 1952, informed Treasurer Quinn of the Transit Workers in the presence of President Casserly that Halloran was no longer a member of "his present Union," that they should not "touch" the $3.50 dues deducted from Halloran's paycheck that day, and that Halloran was going to inform the Company's auditor that Halloran was cancelling his dues checkoff authorization and would request the auditor to refund the $3.50 deducted from Halloran's check on November 6. Halloran then went out on a bus run, on which he allegedly violated company rules. For such infractions, he was notified on the following day by Foreman Tremblay that he was suspended 5 days. According to Markham, he did not learn of Halloran's cancellation of his dues-deduction author- ization until a few days later. Halloran's discipline card contained the following notations regarding the bus run in question on November 6, 1952: on your 11:37 a. in. trip to Chelmsford Center, you arrived in Kearney Square at 11:31 a. in., six minutes ahead of time; you left your bus unattended, crossed the street, went into the bank. You came to your bus and left at 11:36, on minute ahead of time. You know this is wrong. You have no right to park in Kearney Square; neither have you any right to operate ahead of time. 67 For the purpose of this report, it is unnecessary to consider or resolve the testimonial conflicts regarding a conversation between Markham and MacLean on December 15, 1952, since it was not material to any disciplinary action taken by the Company against Mac- Lean and alleged in the complaint to be unlawful. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2033 You are suspended for a period of five working days. In the future, if you do not do your work properly, more drastic action will be taken; suspended November 7, 9, 10, 11, 12, 1952. When Foreman Tremblay informed Halloran of his suspension on November 7, by telephone, Halloran asked to speak with Markham but was told that the latter was not in the office . Halloran left a message, requesting Markham to telephone him. When he did not hear from Markham, Halloran later in the afternoon attempted to reach Markham by telephone but was informed that Markham was out. Halloran again left his telephone number and a request that Markham tele- phone him . Markham never returned the calls and in this regard testified, "I had no occasion to call Halloran . If Halloran wanted to see me, Halloran knew where he could see me; and I have learned from experience, through the years, that telephone conversations aren't too good to have, that you're better off to talk with the person in person and have somebody there when you are talking with him." 58 When he did not receive a call from Markham, Halloran, on November 11 or 12, telephoned the Company 's main office in Boston and spoke with Harney, assistant to Assistant General Manager Wilkinson. According to the undenied and credible testimony , of Halloran, he told Harney of the details of his suspension and attempts to reach Markham, and Harney informed Halloran that under "the regular routine of taking up business in that matter," Halloran would "have to take it up with the Lowell Union, and if, in their opinion, the decision was unjust, then they would have a right to take it up with Mr. Wilkinson." Halloran remonstrated, "I was not a member of the Lowell Union . . . and for that reason , I just wanted an opportunity to speak to Mr. Wilkinson and tell him my side of the story, which I wasn't given a chance by the local manager." However, Harney replied, "Well, that's about all I can do for you." Although Halloran signed his discipline card for the above incident without com- ment and never discussed the matter with Markham, Halloran testified that in ac- cordance with his practice of long standing when the time schedule called for a bus to arrive at and depart from a terminal point at the same time, he arrived at Kearney Square 2 minutes ahead of the scheduled arrival-departure time of 11:37 in order to permit the passengers to disembark and board the bus in orderly fashion.59 He ad- mitted that he left the bus and went to a nearby bank but denied that he left a minute ahead of schedule. The next entry on Halloran 's discipline card read as follows: Bus 2276, Run No. 19: On Monday, December 1st, 1952, at 5:15 a. m., you were parked in Pawtucket Street reading a newspaper. Your headlights were on high beam, making it very dangerous for oncoming traffic. Motorists were blinking their lights and blowing their horns at you to attract your atten- tion so you could lower your lights. You left this point at 5:20 a. m. You were doing your own regular run, Run No. 19. This is due at Wiggins Corner at 5:25 a. in. You drive at excessive speed en route to the end of the line. On [November] 6, 1952, you were suspended and warned for not doing your work properly. You are therefore suspended for a period of ten working days. In the future, more drastic action will be taken if you continue to do your work improperly; suspended December 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 1952. When Foreman Harrington informed Halloran of this suspension, the latter asked, "Did Mr. Markham tell you why I was laid off for those ten days?" and Harrington said, "No." Halloran made no attempt to see Markham about the suspension but when Halloran returned to work, he signed the card with the comment, "Not correct." According to Halloran, this run was the beginning of his day's work and the run started at the end of the line at Wiggins Corner. The departure time from this point was 5:25 a. in. He left the garage at 5:07 a. m. and en route to Wiggins Corner, es In this regard, it might be noted that the record fails to establish that this was in fact Markham's practice, inasmuch as in November 1952, and in January 1953, respec- tively, Markham in telephone conversations with MacLean and McCarthy discussed the reasons for their disciplinary suspensions so It is noted that Halloran's testimony in this regard is supported by evidence adduced regarding the Haverhill discriminatees. That is, in addition to the "blue-prints" show- ing arrival and departure times, there is another chart showing the running time of the bus on each trip. From the latter it is clear, at least in the runs in the Haverhill Divi- sion, that where an arrival and departure time is scheduled for the same time, the running time chart shows an allowance of a few minutes between the arrival and departure of the bus from the stated point. 338207-55-vol. 110-129 2034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stopped the bus for a few minutes at a point about 50 yards from the end of a bridge in whose vicinity a number of accidents had occurred . Measurements taken by Markham at this point indicated that the road was 28 feet wide with no "shoulders." After arranging his supplies , Halloran left this spot at 5:10 or 5 : 11 and drove on to Wiggins Corner to start the bus run. He had no recollection of cars blinking their lights or honking at him or that his lights were not dimmed while he was parked near the bridge . In regard to the state of traffic at that hour of the morning, Halloran testified , "All I ever met there was two or-three small bakery trucks and probably three machines ." Since it is not contended that he was late in leaving the departure point of the run in question , the gist of his offense on this occasion was his stop- ping the bus at a point in the vicinity of the hazardous bridge, leaving the headlight on full beam, and the speed with which he drove to Wiggins Corner from the bridge area. In regard to the latter, the inspector 's report showed the speed to be 30 miles an hour ( that is, five minutes to cover a distance of two and half miles ), whereas Halloran 's version was that he drove "a little better than" 10 miles an hour-"I am not what they call a speeder." Having received a letter and a booklet from John Moran , president of the Com- pany, in early January 1953 , Halloran wrote him as follows not long thereafter: I have received your booklet , "We Meet a Lot of People ," and your letter, and I agree its very interesting. I have worked for this Company for forty -one years , and to my knowledge, I have never been reported for not doing my work, and I never was suspended for same. But last November I was suspended off for five days, and then in De- cember, I was suspended for ten days , I was not guilty of each suspension. The method of suspension and the charges was something that never happened here before. I was suspended without first being told what for. I would appreciate if you would review these charges and also inquire of my forty-one years of service . I have worked under three different managers that are still employed by the Eastern Massachusetts Street Railway Company, namely, Mr. O'Donoghue , Mr. Morris and Mr. Shea , and I would be satisfied to let either judge me as to whether I did my work as it should be done.. . . Halloran received no reply to this letter. The next incidents leading to a disciplinary suspension , as shown on Halloran's discipline card, were the following: 2/8/53: On Sunday, February 8, 1953, you were due out at 8:15 a. in. on Run No. 9. You were sitting in the driver 's seat of your bus, parked right at the front door of the garage , at about 8 . 00 a. in. Another operator due out at 8:00 a. in. pulled up behind you and blew his horn for you to pull out so he could get out of the garage . You paid no attention to this and kept this bus from pulling out on time. This other bus pulled out seven minutes late, due to you blocking the only lane in use at that time. Fore- man McElholm had to leave the office, come out, and open the door and tell you to go out. It is evident you want to make trouble , not only for yourself but for your fellow workers ; discipline pending further investigation. 2/10/53: On Tuesday, February 10, 1953, you left Wiggins Corner at 11:19, a. m., two minutes late. You arrived in Kearney Square at 11:32 a. in., five minutes ahead of time. You parked in the Chelmsford Center stand for five minutes. You have been disciplined before for this same thing . It is quite evident that schedules do not mean anything to you; neither does the fact that you have been reported and disciplined for the same infraction. You are therefore suspended for three working days. February 11, 12, 13, 1953. In the future , if you insist on not doing your work properly and causing trouble, it will be cause of your immediate discharge. ,On this occasion, Manager Markham sent a message that he wished to consult about the matter with Halloran . Markham testified that he did this "after the stories that I had heard , that I didn ' t believe,"-"one in particular . Halloran was going around the division saying that operators were sitting around , bumming around , not working, and so on and so forth and that the union officials in par- ticular were a big bunch of bums , and that Markham didn 't have too long for the job." When Halloran came to Markham 's office later that day, he denied the incidents alleged to have occurred on February 10, but Markham informed Halloran that Markham had happened to be in the vicinity and the entries on the card for February EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2035 10 were the result of Markham 's observation . In respect to the incident at the garage on February 8, Halloran told Markham , according to the latter's testimony, that Halloran "wasn't due out until 8 : 15, and he wasn't going to go out until 8:15, and he intended to sit there until 8:15." In regard to the latter incident , Halloran testified that he was unaware that he was blocking the way for another bus which was due out, that he paid no attention to horns being sounded , as mechanics were frequently testing horns in the garage, that several employees were in the vicinity and could have told him to clear the way for the bus behind him, and that he drove out when asked to do so. It was Halloran's testimony that he made these statements , as well as others regarding the incident , to Markham on the day of their discussion. Respecting the incident on February 10, Halloran testified that he admitted to Markham that Halloran left Wiggins Corner at 11:19 a. in., 2 minutes late, "for the sole reason of that particular trip being a very light trip , and I didn 't want to be getting in ahead of time," but insisted that he arrived at the Chelmsford Center stand at 11:34 , and not 11:32 as reported for Markham , 3 minutes early, in order to have time to discharge and take on passengers in an orderly fashion and yet be able to leave the center at the time called for in the schedule . According to Halloran , the interview ended as follows: And [Markham ], in turn, told me at that time that he expected , since he became manager of the Lowell Division , that I would at least be agreeable with him and not cause him any trouble ; but he said that I caused him more trouble than any man in the Lowell Division ; and in return to that , I told him that the only one that caused him any trouble in the Lowell Division was himself, and that if he caused himself trouble , it wasn't my fault, by his acts and actions. The foregoing summarizes the version of the Company and of Halloran con- cerning the incidents for which Halloran was disciplined . Even if the Company's version as to the disputed issues is accepted , it appears that Halloran 's infractions of Company rules were, of a nature , manifestly insubstantial. d. Conclusions as to the Company's discrimination against the employees of the Lowell Division in violation of Section 8 (a) (3) Counsel for the AFL Unions and the General Counsel urge that the complaint's allegations as to the discrimination by the Company with respect to the hire and tenure of the Lowell employees , concerning whose cases the circumstances have been detailed in the foregoing section , can be sustained on two theories , namely, (1) that the discipline imposed upon such employees was discriminatory and un- lawful and was not for cause , and (2 ) regardless of the Company's motives in effecting the original discipline , the impositions by the Company of the disciplinary suspensions from duty were nevertheless violative of Section 8 (a) (3) of the Act, due to the fact that, in order to process grievances and obtain a revocation of or reduction in the disciplinary layoffs, the suspended employees would be required to assent to the Company's mandate that such grievances be processed through the unlawfully assisted Lowell Local, to whom the employees in question were opposed, from which some had been suspended , and of which none was a member. In support of the latter theory, it is argued as to those employees indefinitely suspended, the action of the Company was in effect a discriminatory constructive discharge. These theories will be considered in inverse order. The second of these theories as applied to the indefinitely suspended employees is more fully elaborated by the General Counsel in his brief. His argument starts with the premise that since the Lowell Local and its successor the Transit Workers were unlawfully assisted by the Company and since the contract between the Com- pany and the Lowell Local was illegal , the following principle , reiterated by the Trial Examiner and approved by the Board in the Shriver case,su is applicable to the circumstances involved in the Company's discipline of its Lowell employees: It is established that an employee need not acquiesce in a condition of employ- ment unlawfully requiring him to accept a union of his employer 's selection, and that a refusal on his part to continue with his employment under such circum- stances does not constitute a quitting of his employment, but, rather, a dis- criminatory constructive discharge. - John B. Shriver Company, 103 NLRB 23. 2036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' Upon the foregoing premise and principle of law, the General Counsel argues as follows in his brief: Most of those involved here were indefinitely suspended . The meaning of that phrase will be explored below in greater detail : one thing , however, is now plain . Indefinite suspensions were generally appealed or taken up as a griev- ance ; the refusal or failure of an employee to do so converted his suspension into a discharge , if that is defined , as it generally is as a definite termination of employment with no prospect of its renewal . To impose an indefinite suspen- sion of an employee , to know also that he had chosen a union to represent him in such matters, to refuse to recognize such union as such representative means simply, in the context , that he was discharged and penalized for adhering to that union . To impose the discipline and say at the same time that it could be removed only by a union of the Employer 's choice means the same thing, when the employee refused to use that union: namely, that the employee's sus- pension becomes a discharge and that the penalty is exacted because of his refusal to use the union selected by the Employer. If the imposition of the choice is illegal , it follows that the penalty has the same character. The foregoing argument of the General Counsel , and also that of the AFL Unions, in this regard is persuasive and is found to have merit and to apply not only to the Lowell employees, McCabe excepted , who were indefinitely suspended but also to the three employees who received disciplinary layoffs of shorter duration. Certain general considerations apply to all these employees . It will be recalled that all but Halloran refused to follow the back-to -work movement of the Lowell Local on June 22 and continued their activities in support of the companywide strike of the Association , and on June 27, 1952, they were among the 19 employees whom the Company unlawfully suspended indefinitely because of their adherence to' the strike. Thereafter , these 8 employees picketed the Lowell operations and were admittedly observed by Manager Markham while they were engaged in such activity . Follow- ing the end of the strike on July 15 and the reinstatement of the strikers unlaw- fully suspended on June 27 , the latter group designated MacLean to act as their spokesman in handling with the Company any grievances which might arise. When MacLean brought this matter to the attention of Manager Markham , the latter re- fused to discuss it with him . About the same time, officers of the Lowell Local were expelled and trustees were appointed by the Amalgamated to administer the affairs of Local Division 280. The Company was apprised of these developments by the Association and its representatives . About August 25 , 1952 , International Vice- President O'Brien, who was a trustee of Local Division 280, presented a petition, signed by the Lowell employees who had refused to abandon the strike on June 22, and who retained their affiliation with the Association , to Assistant Manager Wil- kinson and asked the latter if "on the basis of the situation of the men that were in- volved in Lowell and who were members of our organization , would he then recog- nize me as the administrator for these people ." Wilkinson replied that he could not do so and indicated that only the Lowell Local would be recognized by the Company to deal with problems affecting the employees of the Company's Lowell Division. In September 1952, at a meeting of the Lowell Local , a resolution was approved whereby "the members who did not return to work with the majority and are acting against the best interests of this Local" were suspended and barred from the union hall "until such time as they file grievance blanks with the Secretary and make public apologies to the officers and members ." Although the record does not show affirma- tively that this resolution was brought to the attention of the Company , neverthe- less, as found above, some of the discriminatees informed Markham that they were not members of the Lowell Local, and from statements made by Markham to them it may be inferred that he was aware of their opposition to that organization. More- over, the breach between the employees who remained loyal to the Association and those who adhered to the contracting Lowell Local was forcefully brought to the Company's attention by the notice posted by the Lowell Local in the Company's Lowell garage in November 1952, stating: You have received letters from the Amalgamated , confirming our withdrawal from the International Union. In the near future , notices will appear signed by Robert Stack and John F. O'Brien calling meetings in Lowell by the Amalga- mated . An attempt will be made to turn this local over to suspended mem- bers. At the last regular meeting it was voted by the membership to suspend any member who might attend any such meeting or be in contact with any of the above. Although Halloran did not sever his affiliation with the Lowell Local until Novem- ber 6 , 1952, the Company had notice of this fact when he cancelled his authoriza- EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2037 tion for the checkoff by the Company of his dues in the Lowell Local. Markham's denial of knowledge of such cancellation by Halloran at the time of the initial in- vocation of the first disciplinary layoff of Halloran is offset by other testimony of Markham to the effect that he had heard that Halloran had made statements opposing the Lowell Local. Consideration will first be given to the application of the General Counsel's con- structive-discharge theory to the cases of the employees who were indefinitely sus- pended. The conclusions reached upon the constructive-discharge theory are par- ticularly applicable to the case of O'Neill. As detailed above, O'Neill for some time had held a part-time outside job with the Commonwealth of Massachusetts, but also continued to work as bus operator for the Company. In July 1952 Markham posted a notice saying that he had been notified by the Lowell Local that its mem- bership had voted "that Sec. 55 of the Company rule book be lived up to and no man be allowed to hold two jobs." The past practice of the Company establishes that in effect it had surrendered and delegated to the Lowell Local the enforcement of this rule insofar as it applied to the practice of employees holding an outside job and one with the Company also; for in order for an employee to hold two jobs at the same time, it was necessary for him to obtain from the Lowell Local its approval for a leave of absence, and upon the presentation of such approval to the Company, the latter uniformly granted the requested leave of absence. On August 12, 1952, Markham notified O'Neill by letter that Markham was aware that O'Neill was working for the Commonwealth of Massachusetts and that "I am allowing you your choice. If I find out in the future that you are on the State payroll and working here on any one day, it will be cause for your immediate discharge from this Company. Later, when O'Neill discussed the matter with Markham, the latter advised him to request a 6-month leave of absence and stated that he would make such an application on O'Neill's behalf. However, on August 15, Markham notified O'Neill that the latter could not be given a 6-month leave of absence, requested that O'Neill give Markham the former's decision as to his "intentions in regards to working for this Company or the State," and warned that "after Monday, the 25th, if I have not heard from you and I find that you are working for the State, I'll be forced to drop you from our roster." In a conversation with O'Neill on August 17 or 18, O'Neill informed Markham of his physical condi- tion which prevented his working as a bus operator. However, Markham exhorted O'Neill: You better make your peace with Casserley. . You won't get that leave of absence unless Casserley approves it.. . . There is only two men on the whole Eastern Mass. probably that count.... First in command is Tom Wilkinson. . . . Next to that is Casserley because Casserley has broke the back of the International Union. Why don't you go down and see Quinn and pay him the $20 assessment . . Straighten out whatever you owe with them . and you will get that leave of absence. . . . You're not going to get the leave of absence without Casserley's approval. It is clear from these statements of Markham that he was aware of the mutual antipathy existing between O'Neill and the Lowell Local. O'Neill had been "barred from the union hall" of the Lowell Local and was one of those employees who had chosen MacLean as their representative. O'Neill declined to request the Lowell Local's approval for a leave of absence. When Markham learned that O'Neill was working for the Commonwealth of Massachusetts on August 19, Markham "had no other alternative," according to his testimony, "but to consider him dropped from our roster." The foregoing summary of the facts relating to O'Neill's termination of employ- ment by the Company is clearly within the principle of the Shriver case, quoted above. Here, O'Neill had for some time held a part-time outside job and con- tinued also to work for the Company. When this came to the attention of the Company, he was given the choice of one or the other, but according to the practice then in effect, he could have continued his double employment status had he ob- tained the Lowell Local's approval of a leave of absence. Later, when his health would be endangered by working as a bus operator but not as a clerical employee in a desk job with the State, he was again told that in order to obtain a leave of absence and thus retain his status with the Company, "You better make your peace with Casserley. . You're not going to get the leave of absence without Cas- serley's approval." When O'Neill chose not to seek the approval of the Lowell Local for the leave of absence, he was automatically suspended from the Company's roster of employees. But since the Lowell Local was unlawfully assisted by the Company, it follows that the Company's requirement as a condition of being con- tinued on its roster of employees that O 'Neill obtain from the Lowell Local approval 2038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a leave of absence was squarely within the principle of the Shriver case; that "an employee need not acquiesce in a condition of employment unlawfully requiring him to accept a union of his employer's selection, and that a refusal on his part to continue with his employment under such circumstances does not constitute a quit- ting of his employment, but, rather a discriminatory constructive discharge." It is accordingly found that by imposing this condition upon O'Neill as a prerequisite to retaining his employment status, the Company discriminated in regard to the hire and tenure of employment of O'Neill, and by removing O'Neill from its employment roster on August 19, 1952, the Company violated Section 8 (a) (3) and (1) of the Act.61 It is also clear and it is found that the Company's action with respect to O'Neill and Markham's statements urging him to obtain the approval of the Lowell Local for a leave of absence constituted further assistance and support to the Lowell Local in violation of Section 8 (a) (2) and (1) of the Act. Before turning to the employees who were indefinitely suspended from duty (in contrast to the Company's removal of O'Neill from the roster of employees), it should be recalled that, as found previously, the invocation by the Company of the discipline of indefinite suspension of an employee from duty was tantamount to a discharge unless, as customarily was the case , the employee filed a grievance and processed it through the various steps of the grievance procedure. As Markham testified , "an indefinite suspension would go on for life if the operator or individual involved never took the steps or the means at his disposal to reinstate himself with the Company ." It appears that in the usual instance and in cases concerning inculpa- tions similar to those involved in the cases of the Lowell employees as to whom it is alleged the Respondent discriminated, appeals by way of a grievance were processed by employees indefinitely suspended through the medium of the Lowell Local. In respect to discipline levied by Markham on employees other than those with which we are concerned, the record shows no instance of an indefinite suspension being sustained on appeal . 62 Thus, Markham 's indefinite suspensions of employees Mili- nazzo, Sherrin, Barbieri, and Bisson were appealed with the result that Milinazzo's suspension was rescinded, and the suspensions of the other employees were reduced to 1, 5, and 12 days, respectively.63 That Markham anticipated that all indefinite suspensions would be appealed and that in the case of Kelley would be rescinded or reduced is shown by Markham's following testimony when asked to explain the inconsistency of two notations on Kelley's discipline card, one stating "In the future, you are not to have anyone call or call yourself to get off. You are to report each day," and the second statement which immediately follows, "Suspended indefinitely, August 14, 1952": A. In every instance , I expected the man to hear from the case again-when processed , and so on. Q. You expect the indefinite suspension to be lifted? A. Could be. It is clear that Markham anticipated similar appeals in the other cases and the possibility of reinstatement or reduction of the indefinite suspensions. Thus, after Markham told McCarthy that the latter was suspended indefinitely, Markham told him that in order "to get back on the job again it would have to be someone higher than Mr. Markham." When McCarthy pressed him as to the meaning of the state- ment , Markham said , "The Lowell Transit Union," and told McCarthy " to go and see Mr. Casserly." However, McCarthy remonstrated, "No, I belong to the AFL." In reply, Markham said, "You're in love with the AFL it seems." At hearings before the Massachusetts Unemployment Commission Markham stated that Crow and McNamara had not availed themselves of means at their disposal for 61 This finding is conclusive as to O'Neill and in the discussion below on the other theory of the case the discriminatory action taken against him will not be again set forth. Si The following employees, other than the discriminatees, were indefinitely suspended and did not lodge appeals : Operator Bordeleau's offense was that he repeatedly urinated in a bus Mitchell was first suspended 10 days for absenteeism and misuse of company funds and when he continued to misuse company money, he was indefinitely suspended. The facts concerning Latham's indefinite suspension , from which he did not appeal, are hereinafter related i The details in respect to the suspensions of Milinazzo and Barbieri are hereinafter set forth Sherrin was suspended indefinitely for insulting passengers and refusing to take pennies for bus fares. Upon appeal, this suspension was reduced to 1 day. Bisson was suspended indefinitely because "he was in the habit of having a lady friend assist him in his work " As a result of his appeal , he was reinstated and the suspension was re- duced to one for 12 days. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2039 obtaining reinstatement with the Company and no one had ever appealed their cases. This reference obviously was to the fact that they had not processed grievances through the Lowell Local, inasmuch as it has been found that Markham declined to permit MacLean to handle a grievance regarding McNamara's suspension and said in this regard, "The regular channels are through Casserly." As noted above, the Company refused, in August 1952, to recognize International Vice-President O'Brien as the representative of the Lowell employees who adhered to Local Division 280 and the Association. In view of the fact that : ( 1) An indefinite suspension was tantamount to a dis- charge unless rescinded or reduced by the processing of a grievance; (2) in other cases involving similar infraction of rules, appeals were usually made with the result that the suspensions were lifted or reduced; (3) the Company insisted that such grievances be lodged with and taken up by the unlawfully supported Lowell Local alone and be processed through the various steps of the grievance procedure contained in the illegal contract with the Lowell Local; (4) the Company refused to let Mac- Lean or O'Brien represent the Lowell employees who were opposed to the Lowell Local; and (5) the Company was aware of mutual antipathy existing between the Lowell Local and the discriminatees, the Trial Examiner is of the opinion and finds that the Company's action as to the discriminatees-on the one hand imposing indefinite suspensions and on the other hand at the same time taking the position that the suspensions could be rescinded or reduced only by the recourse of the employees to the Lowell Local, which was unlawfully supported and assisted by the Company, which the discriminatees refused to accept as their representative, and which the Company had reason to know had been rejected and would not be used by the discriminatees as their representative-constituted not merely a suspension but actually a constructive discharge of each of the employees. The discipline levied by the Company was not merely indefinite suspensions, standing alone; coupled there- with was the requirement of recourse by the employees to the unlawfully assisted Lowell Local in order to obtain an abatement of the suspension and the Company's knowledge that they would not or could not utilize that organization as their repre- sentative. Absent the compulsion on the part of the Company to force its choice of collective -bargaining representative upon the employees disciplined, the indefinite suspensions would not in themselves be violative of the Act. Since "it is established that an employee need not acquiesce in a condition of employment unlawfully requir- ing him to accept a union of his employer's selection," it follows that the indefinite suspensions and/or constructive discharges of the employees in question were dis- criminatory, as they clearly encouraged membership in the Lowell Local and dis- couraged membership in the Association.64 The conclusions on this theory of the case as to the employees who were indefinitely suspended applies with equal force to the three discriminatees who were suspended for definite periods. The record shows many instances where grievances and appeals were -taken under the grievance procedure as to suspensions similar to those levied on Cox, MacLean, and Halloran under comparable circumstances and that the suspen- sions were reduced or rescinded. Here again, coupled with the suspension, was the requirement that they use the Lowell Local as their representative if they desired to appeal such suspensions. That the Company was aware of the preference of Cox, MacLean, and Halloran for Local Division 280 and the Association and of their rejection of the Lowell Local is shown not only by the general considerations previously mentioned but by other circumstances . Thus, Cox was told by Foreman Tremblay that if Cox withdrew the charges filed in his behalf "you will not be bothered signing the card again and you will go along in the same manner that the other fellows that are in Local No. 1 are going, . . you can have the job as you so desire it." When Halloran attempted to appeal his case personally and directly to the office of Assistant General Manager Wilkinson, Halloran was informed that he would "have to take it up with the Lowell Union, and if, in their opinion, the decision was unjust, then they would have a right to take it up with Mr. Wilkinson ." McLean's two unsuccessful attempts to obtain The same conclusion that the indefinite suspensions' constituted constructive dis- charges is also reached if one ignores the Company's knowledge of the discriminatees' rejection of the Lowell Local as their representative and,if it is argued that the suspen- sions were converted to discharges by the employees' refusal to accept as their represen- tative the illegally supported union chosen by the Company for the processing of grievances as to the suspensions , and if it is held that at this point the discharges , in effect, were pepalties for the employees' refusal to accept the Lowell Local as their representative and for their adherence to Local Division 280 and the Association. 2040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition as representative of the employees opposed to the Lowell Local have already been noted. In sum, it is found, for the reasons heretofore detailed in the conclusions reached as to the indefinitely suspended discriminatees, that the Company's initial and several suspensions for definite terms of Halloran, MacLean, and Cox were discriminatory because the discipline was imposed with a simultaneous requirement by the Company that they would be obliged to utilize the services of the unlawfully assisted Lowell Local in order to obtain a revocation or reduction of such suspensions and with knowledge by the Company that these employees had rejected such organization and would not or could not process grievances through that medium. Such action by the Company necessarily encouraged membership in the Lowell Local and employees to adhere to such organization and discouraged membership in Local Division 280 and the Association. The Trial Examiner concludes that by removing O'Neill from the roster of em- ployees on August 19, 1952, by indefinitely suspending Kelley on August 14, 1952, McNamara on August 21, 1952, Crow on August 25, 1952, and Ralph J. McCarthy on January 21, 1953; and by suspending Cox on September 24, 1952, and January 22 and 23, 1953; by suspending MacLean on November 8, 10, 11, 12, and 13, 1952, and December 2, 3, 4, 6, 8, 9, 10, 11, 13, and 15, 1952; and by suspending Halloran on November 7, 9, 10, 11 and 12, 1952, December 2, 3, 4, 7, 8, 9, 10, 11, 14, and 15, 1952, and February 11, 12, and 13, 1953, the Company has discriminated in regard to the hire and tenure of such employees in violation of Section 8 (a) (3) of the Act and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.65 The Company's discrimination against these employees and insistence that they utilize the Lowell Local as their collective-bargaining representative in the processing of any grievances as a result of the discriminatory disciplinary action taken by the Company against them, including the statements of Markham and Horney to employees in this regard, constituted fur- ther assistance and support to the Lowell Local in violation of Section 8 (a) (2) and (I) of the Act. We turn now to the other theory advanced by the counsel for the AFL Unions and the General Counsel, with which the Company takes issue, for sustaining the complaint's allegations as to the discrimination by the Company against the Lowell employees, namely, that the discipline imposed upon such employees was discrimi- natory and unlawful and was not for cause. Upon the entire record, the Trial Ex- aminer is of the opinion that the complaint's allegations in respect to Kelley, Mc- Namara, Crow, Ralph J. McCarthy, Cox, MacLean, and Halloran have been sus- tained by a preponderance of credible evidence, that their suspensions were dis- criminatory, and that the incidents which gave rise to the disciplinary action taken against them were utilized by the Company as a pretext to disguise its discriminatory purpose in disciplining these employees because all but Halloran had refused to join the back-to-work movement of the Lowell Local on June 22, 1952, all had opposed the unlawfully supported Lowell Local and its successor, the Transit Workers, and all continued their affiliation with Local Division 280 and the Association. These conclusions are based upon several factors. General considerations applying to all of these employees, showing their opposi- tion to the Lowell Local and adherence to Local Division 280 and the Association and demonstrating the Company's knowledge of such matters have been set forth in the preceding section and need not be repeated. However, they should be con- sidered at the outset in weighing the evidence on this theory of the case. That the Company was illegally motivated in imposing suspensions on not only Cox but also on the other discriminatees named above is clearly shown by Fore- man Tremblay's statements to Cox on February 2 or 3, 1953. Thus, Tremblay told Cox, "Well, of course, you know . . . the situation that is going on here is pretty rough." Cox agreed, saying, "I know that they haven't done too much to me but I have felt what they have done. They . . . gave me layoffs that I should never have 65It is contended by counsel for the AFL Unions and the General Counsel that these conclusions also apply to the.case of McCabe, who, as mentioned above, was indefinitely suspended about August 18, 1952, for reasons which included a misappropriation of com- pany funds in the amount of $62.20. In 1949, he had been discharged for a similar offense and had been reinstated with the understanding that should there be a reoccur- rence of such conduct, he would be immediately discharged . Since McCabe was not called as a witness, there was no denial of Markham's testimony that in a conversation between him and McCabe, the latter admitted that he had mishandled the funds in ques- tion. In view of this testimony, which has been credited, the Trial Examiner is of the opinion and finds that there is no justification for the extension of the conclusions reached in the text on this theory of the case to McCabe 's indefinite suspension. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2041 had. . I never signed the cards in all the years I worked for the Company that I had signed in the past 3 months." Foreman Tremblay suggested, "If you will, you can help yourself out a lot." When Cox inquired, "In what way is that?" Tremblay replied that Cox should send to the Regional Director a telegram stating that Cox had "no charges or claims against the Company." In reply to Cox's query, "in what way will that vindicate me of all these charges?" Tremblay assured him, "Well, you will not be bothered signing the card again and you will go along in the same manner that the other fellows that are in Local No. 1 are going, . you can have the job as you so desire it." The reference by Tremblay to Local No. 1 was obviously to the Transit Workers Local No. 1, which was successor to the Lowell Local. Later in the conversation, Tremblay said, "Markham would like to know what Mr. Levin [secretary-treasurer of the GCC] has on you." Further adverse reflection upon the Company's motivation in imposing these sus- pensions was demonstrated by its insistence that it would discuss grievances with respect to the suspensions only if filed and processed by the unlawfully assisted Lowell Local, by its refusal to recognize O'Brien or MacLean as the representative of the discriminatees for the purpose of discussing grievances, and by the exhorta- tions of Markham to O'Neill, "You better make your peace with Casserley [presi- dent of the Lowell Local]. . . You won't get that leave of absence unless Casserley approves it," by Markham's statement to O'Neill, "There is only two men on the whole Eastern Mass. probably that count.. . First in command is Tom Wilkinson [assistant general manager of the Company]. . Next to that is Casserley because Casserley has broke the back of the International Union," by Markham's statement to Kelley upon informing him of his indefinite suspension , "There has been a new school formed here today," by Markham's statement to McCarthy that in order for the latter "to get back on the job again it would have to be someone higher than Mr. Markham," meaning by this statement, "The Lowell Transit Union," by Markham's urging McCarthy "to go and see Mr. Casserly," and by the statement, "You're in love with the AFL it seems," made by Markham to McCarthy when the latter rebuffed the foregoing suggestions of the former by saying, "No, I belong to the AFL." Additional circumstances to be considered in this aspect of the case are the length of the employees' service with the Company and the fact that a considerable period of time had intervened between the date of the last suspension of each discriminatee for infraction of rules and the date that each was suspended in 1952 and 1953, as shown by the following tabulation: Employee Length of em- 'ployment by the Company Discipline imposed by Markham Date of last prior suspension Kelley-------------- 16 years ------- Indefinite suspension on August August 1949, one-half day 14, 1952. McNamara ---------- 7 years -------- Indefinite suspension on August Not shown by record. 15, 1952 Crow--------------- 20 years ------- Indefinite suspension on August July 1945, 3-day suspension. 25, 1952. O'Neill------------- 14 years ------- Removed from roster August 19, Not shown. 1952. Ralph J. McCarthy- 16 years------_ 2-day suspension September 13, Date not shown, only one sus- 1952; 4-day suspension on pension in entire period of November 24, 1952, 2-day sus- employment prior to strike pension on January 20, 1953, which commenced in March changed to indefinite suspen- 1952. sion on January 21, 1953. Cox ----------------- "Offandon" 1-day suspension on September About October 14, 1950, sus- since 1934. 24, 1952, 2-day suspension on pended 14 days but upon ap- January 16, 1953. peal suspension reduced to 3 days. MacLean ----------- 21 years ------- 5-day suspension on November February 1937, 1-day suspension. 8, 1952; 10-day suspension on December 1, 1952 Halloran ------------ 40 years ------- 5-day suspension on November 1942, 7-day suspension. 7, 1952, 10-day suspension on December 2, 1952, 3-day sus- pension on February 11, 1953. 2042 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD From the foregoing it is thus apparent that the period of employment of this group with the Company varied from 7 to 40 years and the dates of the last suspen- sion of the group prior to the suspensions invoked by Markham varied from 1942 to 1950. The lengthy duration of their employment with the Company and the fact that their last suspensions prior to those imposed by Markham was somewhat remote, give rise not only to an inference that the employees were experienced and apparently capable operators, otherwise their retention by the Company could not be explained, but also to a doubt as to the Company's motivation in suspending them. Another factor which reflects adversely on the Company's motives in the disci- pline taken against these employees is the fact that their infractions of rules which gave rise to the discipline were, generally speaking, of a relatively minor nature and in some instances the Company had condoned similar conduct in the past. In addition, the record clearly reveals a disparity in the discipline levied by the Com- pany against these employees as contrasted to less severe penalization of other em- ployees for comparable, if not the same, type of offenses. Thus, Kelley was sus- pended indefinitely because he was absent 1 day from work, although he had given the Company notice that he would be absent and although his absence did not cause the Company to omit any of its scheduled bus operations that day. In marked con- trast to the discipline imposed upon Kelley for this offense was that levied by Mark- ham upon Garrity who missed a day's work without notice and refused to go to work when requested by his foreman. For such conduct, Garrity was suspended from duty for 1 day only. As noted above, Markham took no disciplinary action against employee Latham's individual periods of absenteeism. When Latham failed to return from vacation and apparently quit the Company's employ, he was indefi- nitely suspended. Moreover, it is to be noted that the discipline given Kelley for absenteeism, ranging as high as 3 consecutive days, by other managers who pre- ceded Markham in that position was a suspension for a half day. Although McNamara violated rule 79 and the general practice of the Company in processing accident claims by interviewing the claimant and witnesses concerned in the accident which occurred on August 15, and although McNamara's infraction of company rules was of a more serious nature than those charged by the Company to the other discriminatees, nevertheless, there are present in the case certain cir- cumstances which cause one to question whether the Company's indefinite suspen- sion of McNamara was tinged with a discriminatory motive. Thus, according to Markham's testimony, a prior manager of the division had condoned earlier in- fractions of McNamara of the same rule and practice by identical conduct. So far as the record shows, McNamara was not even reprimanded, let alone suspended, for having interviewed witnesses to an accident in which his bus was involved some years previously, for there were no notations of any kind on his discipline card as to this incident. Furthermore, the record affirmatively shows that employee Wolf- gang was merely reprimanded by way of a warning, and not suspended, by an earlier manager of the Lowell Division for having violated rule 79. The fact that the acci- dent was admittedly minor and that the owner of the automobile involved with- drew his claim for damages, while not mitigating the nature of McNamara's infrac- tion of company rules, is a factor to be considered in the light of the severity of the discipline of indefinite suspension imposed on McNamara. Crow was suspended indefinitely on August 25, 1952, by the Company upon the complaint of two prospective bus passengers that he had passed them by and had failed to make a safety stop at a railroad crossing . It does not appear that such infractions were unique to Crow, assuming the accuracy of the prospective passen- gers' report upon which Markham based his discipline of Crow, or that any other employee had suffered the penalty of indefinite suspension for such conduct. In this regard, Markham testified that he was unable to recall that any employee had ever been suspended indenfinitely for failing to stop for prospective passengers wait- ing at a bus stop.66 Markham's predecessor as manager of the Lowell Division • merely reprimanded employee Wolfgang, in 1951 , for passing up passengers on 2 occasions and for twice failing to make a safety stop at a railroad crossing in 1949. 66 In this regard, it is to be noted that for a somewhat different and apparently more serious type of infraction, Markham indefinitely suspended operator Milinazzo for tak- ing an incorrect route on a regular run on August 4, 1952, thereby " leaving passengers on Dalton Road." Milinazzo processed a grievance through the Lowell Local to Assistant Manager Wilkinson, who overruled the suspension and directed that Milinazzo be reinstated and be paid for the time lost from work as a result of the suspension. For a similar offense, Markham imposed a 1-day suspension upon operator F. Riley in September 1952 for following an incorrect route on his regular run and "by you not doing your work properly, you caused people to miss their work." EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2043 Similarly, in 1948, Crow was reprimanded but not suspended for failing to stop for prospective passengers on 3 occasions in 1947. Although Ralph J. McCarthy had received only 1 disciplinary suspension in his 16 years with the Company up to the time of the Association's strike, he received a number of suspensions after the strike. On September 13, 1952, he was given a suspension for at least 2 days for taking an incorrect route. On November 24, 1952, he was suspended 4 days for running late, driving at excessive speeds, and parking at a terminal point for 4 minutes. On January 20, 1953, he was suspended for 2 days because while operating a bus he had talked with a passenger and taken his eyes off the road to look at the passenger with whom he was conversing and because he had left the bus in gear while passengers were boarding and leaving.67 Follow- ing these disciplinary layoffs for manifestly minor infractions of rules, McCarthy was indefinitely suspended on January 21, 1952, because an inspector had reported that on December 15, 1952, McCarthy had failed to collect from a letter carrier either a fare of 15 cents or a strip ticket valued at 121/2 cents. Despite McCarthy's denial of such report and subsequent production of a statement which was pur- portedly signed by the 13 letter carriers who worked in the district on the day in question and which supported McCarthy's denial of the action attributed to him, Markham adhered to the indefinite suspension levied earlier because McCarthy failed to meet the standard of proof required by Markham to establish McCarthy's innocence of the charge against him, namely, the production of the letter carrier whom the inspector had observed board McCarthy's bus over a month earlier. In respect to discipline given employees for similar infractions of rules, Markham ad- mitted that the Company's records revealed that in the period prior to his assump- tion of the position of manager of the Lowell Division there were several instances in the past where operators had been apprehended in such conduct but had not been indefinitely suspended or discharged. The only employee other than McCarthy to be suspended on charges involving fare collection during Markham's tenure as manager was Joseph Barbieri. About 11/2 months prior to McCarthy's indefinite suspension, Markham had indefinitely suspended operator Joseph Barbieri for a number of infractions of rules, including failure to collect fares, on a bus run on December 8, 1952, as follows: Leaving 3 minutes late, talking to passengers, driv- ing at excessive speed, failing to stop at Merrimack Park and make "an inside col- lection of" fares but instead collecting "fares by hand as the passengers were getting out" at the Lawrence transfer station, parking 6 minutes in the transfer station, and making no effort to collect the fares of "through passengers" who "were still on your bus when you left the station for Pleasant Valley." The Lowell Local successfully processed a grievance regarding Barbieri's indefinite suspension with the result that the "suspension [was] reduced to five days, December 12, 13, 14, 15 and 9." Although Cox was frequently reprimanded for minor infractions of rules from September 1952 to January 1953, and although his suspensions in September 1952 and in January 1953 were for relatively minor offenses and were of limited dura- tion , being for 1 and 2 days, respectively, nevertheless, the Company's discriminatory motives in suspending Cox and invoking a series of reprimands against him during this period were clearly enunciated in the statements of Foreman Tremblay to Cox in February 1953, as set forth above. In November 1952 MacLean was suspended for 5 days because he arrived at a terminal point 4 minutes early, chatted with bystanders briefly, and left 2 minutes late. Although this report on MacLean's bus operation was observed by Markham, the latter made no effort to send MacLean on his way at the time, because Markham wanted to "see how long he'd go." The second suspension of MacLean for a 10-day period in December 1952 was based, in effect, upon the fact that he left the garage 7 minutes late and was running off schedule from 7 to 16 minutes late on a bus run on December 1. The record shows that variation by bus operators from schedules occurs frequently and is apparently a minor offense. Markham could not recall, and the record does not show, aside from the suspensions of Halloran, any instances of such severe discipline for offenses comparable to those lodged against MacLean 68 °7 Although the complaint did not allege that these suspensions of McCarthy were violative of the Act, they are considered in weighing the factors relating to the Company's motivation. 68 In respect to temporary suspensions for disciplinary purposes levied by Markham on employees other than the discriminatees, the record shows that the following occurred : Operator Joseph Lawrenson was suspended 1 day, August 28, 1952, for having missed or "cut" a trip on August 25. Operator William Mitchell was suspended for 10 days because he was absent without permission and because he misused company funds . Opera- tors Andrew McBride, F . B. Riley, and Lawrence Rogers each received a 1-day suspen- 2044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The suspensions imposed upon Halloran also appear to have been unduly severe in relation to the insubstantial nature of his infractions of company rules on which Markham relied as justification for the disciplinary action taken by him. More- over, the timing of the first of these suspensions is significant. The day after Halloran car,celed his authorization for the deduction from his pay of dues in the Lowell Local, Halloran was suspended 5 days for arriving at a terminal point 6 minutes ahead of schedule, leaving his bus and going to a bank, and departing from the terminal 1 minute ahead of time. In December 1952 he received a 10-day suspen- sion because, en route to the starting point of his bus run, he stopped his bus at 5:15 a. m. some 50 yards from a hazardous bridge, leaving the headlights on full beam, and a few minutes later driving at a speed of 30 miles an hour to point where the bus run commenced. The third suspension for a 3-day period in Feb- ruary 1953 was based upon his blocking the exit from the garage by refusing to drive his bus out and thereby causing another bus to be late in starting a run, and upon his leaving a point on a bus run 2 minutes late and arriving at another point 5 minutes ahead of time. Aside from the disciplinary suspensions of MacLean, the record does not show any instances where such severe discipline was invoked against Lowell Division employees for comparably insubstantial infractions of rules. In regard to Markham's discipline of employees, counsel for the Company in his brief argues that "it should be remembered that Mr. Markham did not become manager of the Lowell Division until after the strike was over, and any comparisons between discipline imposed by him and discipline imposed by his prede- cessors as manager are without validity for the reason that the evidence clearly shows that each manager makes his own policy with respect to the use of his dis- ciplinary powers and that there is wide variance between the policies followed by different managers." Although Markham may have been a more strict disciplinarian than his predecessors, the Company's argument in this regard is not persuasive in view of the lack of uniformity of discipline imposed by Markham for similar infrac- tions, as pointed out above in the cases of Kelley and Crow. Furthermore, while the disciplinary policies of the managers of the Company's 11 divisions were not the same, the record indicates, as previously mentioned, that as a result of appeals by the employees disciplined through the grievance procedure to the Company's assistant general manager and executive committee, a codification of disciplinary standards and a certain uniformity of discipline throughout all divisions were achieved through the latter's modification or revocation of the initial discipline. The privilege of testing Markham's disciplinary policy against these standards was effectively denied the discriminatees by the Company's insistence that grievances in respect to their discipline by Markham should be processed only by the unlawfully assisted Lowell Local through the various steps of the grievance procedure con- tained in the illegal contract and by the Company's refusal to consider individual appeals of the discriminatees or appeals on their behalf by O'Brien and MacLean. The Company points to the fact that in addition to the 9 discriminatees, Markham disciplined 13 other employees by imposing suspensions upon them and that among these 13 were Leibold, Lawrenson, and Barberi who were part of the group of 19 employees adhering to the strike when the other Lowell employees returned to work on June 22,69 yet the complaint did not allege that the suspensions of Leibold, Lawrenson, and Barbieri were unlawful. The latter circumstance affords no sup- port to either the Company or the General Counsel in regard to their contentions as to the complaint's allegations, inasmuch as the facts as to these three employees were not litigated and the record does not show whether they continued their affilia- tion with Local Division 280.79 sion as a result of accidents. Riley also was suspended for 1 day because he took an incorrect route and "caused people to miss their work." Garrity did not appear for work 1 day and refused to come in when told by the foreman that his services were needed ; for this conduct, Garrity was suspended 1 day. It appears that operator Leibold also was given a disciplinary suspension, but the record does not show the reasons therefor. 69 T. L. Kilmartin was also included by Markham among the employees whom he dis- ciplined. However, the action taken in respect to Kilmartin was not disciplinary in the sense with which we are here concerned He did not resume his employment with the Company when the strike ended on July 15, and refused to return when requested by the Company Markham ultimately wrote him, informing him that he "was no longer con- sidered an employee of this Company" and requesting him to return his equipment. 7° This factor prevents any reliance upon, or the drawing of any inference from, the employment history of the group of 19 Lowell employees who adhered to the strike when the other employees returned to work on June 22 and who were unlawfully suspended EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2045 As to the other 9 employees in this group who were disciplined, the Company asserts in its brief that they "apparently were among those who did return to work in June, and still they were disciplined by [Markham]," and argues that "it is clear that there is no pattern here from which an inference could be drawn that Mr. Markham has given one group of men treatment any different from the treatment which he accorded all the men." The latter contention must be rejected. As noted earlier, the record shows a disparity between the discipline given Kelley and Crow by Markham and that imposed on other employees for comparable offenses. Simi- larly, MacLean and Halloran were more severely disciplined by Markham for minor infractions of rules than other employees engaging in similar but not identical vio- lations. Moreover, the discipline given the discriminatees was more severe than that administered by the Lowell Division managers who preceded Markham. Upon the entire record and, more particularly, in view of: (1) The discriminatees' adherence to Local Division 280 and the Association and their opposition to the Lowell Local and its successor the Transit Workers; (2) general and specific con- siderations showing that the Company was aware of the mutual antipathy existing between the Lowell Local and the discriminatees and of their continued adherence to Local Division 280 and the Association; (3) the statements of Markham and Tremblay and the circumstances detailed above indicating that the discipline of the discriminatees in question was unlawfully motivated; (4) the findings as to the constructive discriminatory discharge of O'Neill; and (5) the conclusions hereto- fore reached as to the Company's violations of Section 8 (a) (2) and (5), including the fact that these violations evolved from circumstances occurring in the Lowell Division, the Trial Examiner finds that the incidents which gave rise to the dis- ciplinary action taken against the discriminatees were utilized by the Company as a pretext to disguise its discriminatory purpose in disciplining them because all but Halloran had refused to join the back-to-work movement of the Lowell Local on June 22, 1952, all had opposed the unlawfully supported Lowell Local, and all continued their affiliation with Local Division 280 and the Association.71 The Trial Examiner concludes and finds that by indefinitely suspending Kelley on August 14, 1952, McNamara on August 21, 1952, Crow on August 25, 1952, and Ralph J. McCarthy on January 21, 1953; and by suspending Cox on September 24, 1952, and January 22 and 23, 1953; by suspending MacLean on November 8, 10, 11, 12, and 13, 1952, and December 2, 3, 4, 6, 8, 9, 10, 11, 13, and 15, 1952; and by suspending Halloran on November 7, 9, 10, 11, and 12, 1952, December 2, 3, 4, 7, 8, 9, 10, 11, 14 and 15, 1952, and February 11, 12 and 13, 1953, because of their adherence to Local Division 280 and the Association and because of their opposition to the Lowell Local and its successor, the Transit Workers, the Company has discriminated in regard to the hire and tenure of such employees, thereby encouraging membership in the Lowell Local and the Transit Workers and dis- couraging membership in Local Division 280 and the Association, in violation of Section 8 (a) (3) and (1) of the Act.72 It is further found that the Company's discrimination against these employees constituted further assistance and support to the Lowell Local and its successor, the Transit Workers, in violation of Section 8 (a) (2) and (1) of the Act. e. Conclusions as to the complaint's allegations of violations by the Company of Section 8 (a) (4) of the Act (1) In respect to Cox In reliance upon the statements made by Foreman Tremblay to Cox on Feb- ruary 2 or 3, 1952, set forth in full above and summarized in the foregoing section of this report, the General Counsel contends that the Company's suspensions of Cox indefinitely for that reason on June 27 Upon the termination of the strike, 18 of them returned to work on July 15, 1952. Following an economic layoff about July 17, 1952, 14 of the group of 19 continued in the Company's employ Of these 14, O'Neill was con- structively discharged and 11 others were given disciplinary suspensions by Markham. 'n In reaching these conclusions, the denials of Markham that the date the discrimi- natees returned to work after the strike and their union activities played any part in his determination to discipline them have been considered and rejected. Consideration has also been given to the conclusions hereinafter reached as to the complaint's allegations with respect to action taken by the Company against employees in its Haverhill and Brockton Divisions 72 Cf. The Baltimore Transit Company, at at., 47 NLRB 109; Oklahoma Transportation Company, 46 NLRB 1214. 2046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were violative of Section 8 (a) (4) of the Act, as well as of Section 8 (a) (3). The latter violation has been found above. Cox suffered no disciplinary suspension after February 2 or 3, 1952. The gist of the statements relied upon by the General Counsel was that Tremblay told Cox that if he would withdraw the charges previously filed in his behalf, Cox would "not be bothered signing the card again and you will go along in the same manner that the other fellows are in Local No. 1 are going, . you can have the job as you so desire it." Tremblay also said, "Markham would like to know what Mr. Levin [secretary-treasurer of the GCCI has on you." As noted above, the charges filed in Case No. 1-CA-1390 by the GCC were signed by Jesse Levin, its secretary-treasurer. Service of these charges was effected upon the Company on January 31, 1953, 9 days after Cox's last suspension . Although it is possible to infer from Tremblay's statements that the discipline imposed by Markham on Cox prior to February 2 or 3 was in part motivated by the fact that charges had been filed on Cox's behalf in Case No. 1-CA-1390 on September 16 and Novem- ber 20, 1952, the Trial Examiner is not persuaded that the inference is so impelling as to require a finding that by suspending Cox on two occasions the Company en- gaged in violations of Section 8 (a) (4) of the Act. It is clear, however, and it is found, that Tremblay's statements in urging Cox to withdraw the charges were viola- tive of Section 8 (a) (1) of the Act and establish the Company's illegal motivation in respect to conduct violative of Section 8 (a) (3) of the Act, as previously found.73 (2) As to O'Neill As found above, O'Neill was constructively discharged for discriminatory rea- sons on August 19, 1952, when Markham removed O'Neill's name from the roster of employees because O'Neill had not obtained the approval of the Lowell Local for a leave of absence to permit his working part-time for the Commonwealth of Massachusetts. Service of the Association's charge filed with the Board on O'Neill's behalf was effected upon the Company on August 28, 1952. Meanwhile, O'Neill's health had improved and shortly after August 27, 1952, he telephoned Foreman McElholm and informed him that O'Neill would return to work on August 31. McElholm replied, "I'll put you in the book." However, on August 30, 1952, Foreman McElholm telephoned O'Neill and said, "Markham left word that you can't return to work tomorrow." When O'Neill later inquired of Markham about this message relayed by McElholm, Markham asked, "You got charges that you were fired before the National Labor Relations Board, haven't you?" O'Neill ex- plained, "No, I haven't, Tom. . . . I have charges but not that I have been fired." Markham then said, "I don't know, looks like you will have to wait until the NLRB puts you back to work," but "let me call Boston, ... I'll call you by 3 o'clock this afternoon." Later that day, Markham told O'Neill that he could not return to work the following morning. When O'Neill inquired, successively, whether he was fired, suspended, disciplined, or furloughed, Markham answered each query in the nega- tive and ended by saying, "No . . . just can't go to work." Upon the foregoing statements of Markham to O'Neill, it is clear that a substantial portion of the Company's motivation in refusing to permit O'Neill to return to work on August 31, 1952, was based upon the fact that charges in O'Neill's behalf had been filed with the Board. The Trial Examiner concludes that on August 30, 1952, by rejecting O'Neill's request to return to work on August 31 because charges had been filed on his behalf, the Company discriminated in regard to the hire and tenure of O'Neill's employment in violation of Section 8 (a) (4) and (1) of the Act. 3. The Company 's alleged violations of Section 8 (a) (3) of the Act in respect to employees of the Haverhill Division a. General considerations The complaint alleged that the discharge of Ernest Marcotte on October 23, 1952, the indefinite suspension of Douglas Holder on December 5, 1952, and the discharge of Lynwood Hyde on January 5, 1953, were discriminatory. Certain general considerations which apply to these employees of the Haverhill Division will first be considered before detailing the circumstances surrounding the discipline imposed on them. Shortly after most of the employees in the Lowell Division abandoned the strike and returned to work on June 22, 1952, a back-to-work movement started in the 'AMundet Cork Corporation, 96 NLRB 1143. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2047 Haverhill Division and was led by Joseph Willett who was a bus operator and mayor of Haverhill. In this action he was opposed by Holder, who was president of the Haverhill Local, and other employees who preferred to continue the strike. E. Russell Withrow, manager of the Haverhill Division, admitted that from reading newspaper accounts of the controversy he was aware of the dispute between the 2 groups and the position and statements made by the 2 factions. In respect to the issue of the strikers returning to work, Withrow admitted that it was his "feeling that they should go back" to work. In the end, the Willett group attained its objective. On June 28, 1952, 12 or 15 bus operators returned to work, and, according to Withrow's testimony, by the end of the day between 32 and 35 employees had abandoned the strike and resumed their employment with the Company. Withrow estimated that at the time in question there were less than 40 employees in the Haverhill Division. According to Holder's figures, 26 employees returned to work on June 28, 1952, and others returned later. On June 28 the 26 members of the Haverhill Local who had abandoned the strike and returned to work were notified by the Haverhill Local that they had been charged with "working against the best interest of the Union membership," and were to be tried on such charges by the executive board of the local. Only 1 of these employees appeared on the date specified before the executive board. He was exonerated of the charges but the other 25 were suspended, but not expelled, from membership in the Haverhill Local. It appears that the suspended members have continued to pay their dues in the Haverhill Local, for President Holder testified that under the union-security provisions of the "agreement with the Com- pany . . . they have to pay their dues to remain an employee of the Company." After the employees returned to work on June 28, and until the strike was ulti- mately ended on July 15, 1952, the Haverhill Local and the Association maintained picket lines at the operations of the Company in Haverhill. Holder, Marcotte, and Hyde were officers of the Haverhill Local and participated in the picketing and the arrangements therefor. They did not return to work until after the official end of the strike on July 15, 1952. Another general consideration to be noted before passing on to a discussion of the individual cases is that discipline cards were used, as in the Lowell Division, to record the discipline given employees. In respect to the general practice re- garding these cards, Manager Withrow testified that when an employee violated a rule of the Company, "it has been the practice in Haverhill to call that man in, explain it to him and have him sign" the card, permitting him, if he desired, to write comments on the reverse of the card. b. The discharge of Ernest Marcotte Marcotte had been in the Company 's employ as a bus operator since April 1939. On January 1, 1952, he became the recording secretary of the Haverhill Local and after the picketing of the Company's operations at Haverhill began on June 28, he assigned strikers to picket duty and participated in the picketing. Marcotte 's discharge was concerned with the following rule 55 of the Company's operating rules: No employees will be permitted to engage in any other occupation or business except by permission of Superintendent or Manager. As a result of a war injury , Marcotte suffered from a kidney ailment, which ultimately necessitated an operation in May 1950 , and he was unable to work for the Company from May 1950 until July 1951 . However , prior to the operation in May 1950 , it appears that he had obtained a part-time job with the United Shoe and Leather Company, Incorporated, in Haverhill but continued in the Company's employ as a spare bus operator . A notation on his discipline card showed that on March 29, 1950, Manager Withrow had warned Marcotte "not to work on any other job ." Marcotte 's testimonial version of his conversation with Withrow over this entry on the discipline card was as follows: I told him I had a chance to work in this factory and that it wouldn't com- plicate my job or implicate in any way my job with the Eastern Mass.; that I could work whenever I wanted to in the factory and take off when I wanted to; I could do what I wanted to ; it wouldn't hurt me. There was nothing to stop me from working on the bus if they needed me. Q. What did he say? A. He said that was all right. Q. You continued? A. I continued to do that. 2048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this regard , it might be noted that Marcotte was a spare operator who was assigned to various runs on occasions when his services were required by the absence of the regular drivers on those runs. In respect to the practice of notifying spare operators of the time to report to work, Manager Withrow testified, "he is called the night before the work comes in for the next day." About April 1951 Marcotte worked for United Shoe for a period of 2 weeks. He resumed his employment with the Company after recovering from the operation in July 1951. At this time, according to Marcotte, the following occurred: I came back and saw Mr. Withrow, and he told me I would have to take a physi- cal and they sent me to the doctor to take a physical. I took the physical and passed so I talked to Mr. Withrow afterward, and I told him I would have to start off easily again and see what happened. He said, you do what you think best for yourself, we have enough men. When you can work 1 or 2 days until you think you can work steady. It appears that Marcotte worked for about a month for United Shoe on this basis and then worked steadily for the Company. In January 1952 he suffered a recur- rence of his kidney ailment. Marcotte testified that the following occurred: It started to kick up again and I went in to see Mr. Withrow, and I went to the doctor and what he advised me to do was what I had done previously. [With- row] said it would be all right so long as it doesn't cost us overtime, as long as you are available when we need you. I gave him the telephone number of my home and the factory. . . . They could call me at any time they needed me. . . . At either place. According to Marcotte, he "started to work fairly steady the first of 1952" for United Shoe, but not "full time, I couldn't. I was working enough to live on." A notation on Marcotte's discipline card stated that on August 29, 1952, he was "warned by [Foreman] Mulheren about working-asking for time off and working at United Shoe. Letter enclosed." The letter was a memorandum from Foreman J. N. Mulheren to Withrow under date of August 29, 1952, stating, "While you were on vacation on August 28, 1952, I warned Operator E. Z. Marcotte about ask- ing off personal and sick and still working on these days at Allied Shoe and Leather Company on River Street." With respect to his conference with Mulheren about the matter, Marcotte testi- fied, "He told me he called me in because a couple of fellows were squawking be- cause I was taking off so much, and I explained to Jack the same thing I explained back in 1950 when I was bothered even after the operation and Jack told me to con- tinue on as long as it wouldn't cost us overtime, and I left his office." The next notation on Marcotte's discipline card stated that he was "suspended one day, 10-18-52, for missing at 6:05 a. m." on October 17, 1952. Marcotte, accom- panied by President Holder, conferred on October 20, 1952, with Manager With- row about the suspension of Marcotte in regard to Marcotte's 1-day suspension. It was Marcotte's testimony that the following occurred: I went in to see him about what I was suspended for. [Withrow] told me I was suspended for missing. I told him I didn't know I was listed for work. He said we are not supposed to call you for work. Well, I said I have always been called the night before because I was on the spare list and if any work was available they called you according to seniority. I received no call and went on the assumption there was no work available for me that day. The only way I found out I missed, the following morning around 8:30 I went up to the garage to pick up my check for the previous week and Ted Brown the early day foreman who was in the office said I missed. I said, "Missed what?" He said, "You missed up on work, you were listed." I said, "I didn't know I was listed, I wasn't called." He said, "We don't have to call you." . . . Mr. With- row said it was never the practice of the Company to call the spare men, and as long as I had been there any one on the spare list was called by 8 o'clock the night before the work started. He said that his practice was he never had to call any one. Then he brought up the subject of my working elsewhere. So he told me how Mr. Mulheren had called me in and I said I explained to Jack Mulheren, and he agreed to continue on what we had done previously to the strike, and as long as they had agreed that as long as I would work on the days they needed me so they didn't have to pay any overtime it would be all right because of the condition that existed . . . I told Mr. Withrow my kidneys were bothering me. . . That was the reason. The same thing I told Jack. I continued to work so they wouldn't have to pay overtime. He brought up about working in EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2049 the factory. I said , "As far as the factory, you know any time you want me you can call me." He said, "We know that. . You're taking off personal days and sick days. One thing I want you to do when you take off is to specify to the night foreman the night before that you are taking off sick and not personal days off and we will know what it is." . I did say at that time what he meant by making sure I take off sick. I think Mr. Holder made a statement as to what do you intend to use it for, Mr. Withrow. And Mr. Withrow refused to answer anything on it. We left after that. Q. Prior to that you mentioned taking off personal and taking off sick, what did you mean ; what did that mean9 A. Well, like I told Mr. Withrow that morning, he said, "Why was it they listed you off sick?" I said, "That was the foreman. I called in; they had enough men and would list me off sick or whatever they wanted." Some days they listed me off sick and other days personal. He questioned my taking off some personal and sick; that under my condition they should be all sick, he said. Holder's testimony was corroborative of that of Marcotte in regard to the above conversation on October 20. Withrow did not specifically deny the foregoing testi- mony of Marcotte in respect to the conferences between the former and the latter in March 1950, July 1951, January 1952, or October 1952. Withrow admitted that he had known that Marcotte had worked part time for United Shoe for more than 2 years and that Marcotte suffered from a kidney operation. Withrow could not recall whether Marcotte had discussed with him the effect of the kidney operation on his capacity to drive a bus when Marcotte resumed work in July 1951. Neither could Withrow recall a conference with Holder and Marcotte about the latter' s suspension in October 1952. Withrow denied generally that he had any agreement with Mar- cotte about the latter working part time at United Shoe and testified, "I didn' t agree he could [do] anything, just as I stat€d. I didn't care what he did, it was none of my business so long as he took care of his job here first; that was his primary job . this question of Mr. Marcotte has come up several times and at no time did I give him permission to work at another job. I know that several men work on other jobs but they don't let it cause them any trouble on this particular job." Withrow also testified that he discussed Marcotte's outside employment with him in August 1952 and told him "that it must stop," the Company "must be considered his primary job when there was work he must work." In regard to this conversation, Withrow gave the following testimony: Q. (By Mr. Kowal.) In that conversation in August, '52 with Marcotte, he didn't promise you not t o work at the Allied Shoe did he? A. He promised me when work came to him he would work. When asked whether the Company had been unable to reach Marcotte by telephone at home when he was needed for work as a spare operator, Withrow testified, "I think it has happened many times," but was unable to name a specific instance. Although he did not deny that Marcotte had left the telephone number of the United Shoe factory where he could be reached, Withrow testified, when asked whether he had, nought to reach Marcotte at the factory, "No, I don't think we had gone so far as that." But immediately thereafter, Withrow admitted, "We have cases where men work on a part-time basis who do leave the number for us to call, and we do call as long as we are instructed to do so." Foreman Mulheren was not called as a witness and accordingly Marcotte 's testi- mony in respect to his conversations with Mulheren stands undenied. Upon the en- tire record, the Trial Examiner's impression of the demeanor of the witnesses as they testified, the fact that Withrow failed to deny specifically nearly all of Marcotte's testimony, the mutual corroboration between Holder and Marcotte respecting a vital portion of the latter's testimony, the vague, if not reluctant and evasive nature of Withrow's testimony respecting Marcotte's illness and his working part time at a less exhaustive job, and the inconsistencies in Withrow's testimony noted elsewhere, the Trial Examiner credits the testimony of Marcotte and Holder in respect to the above conferences and rejects the testimony of Withrow except to the extent that it was in accord with the credited testimony. It is further found that the credited testimony is not inconsistent with the notations on Marcotte's discipline card and on other docu- ments read into the record from his personnel file. On the evening of October 22, 1952, Marcotte telephoned the garage and asked James Doughty, who "was on duty in the office" whether there would be work for Marcotte the. next day. Doughty replied, "You can work . . . you will be the last man listed . . . we have 3 or 4 men." Since there were enough spare operators to 338207-55-vol. 110-130 ' 2050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cover the work for the following day, Marcotte told Doughty, remembering Manager Withrows' request on October 20, "To be sure to list me off sick." The next day Marcotte worked for United Shoe and when he telephoned the garage that evening to ascertain the work requirements of the Company for October 24, he was informed that he was discharged . It appears that under date of October 23, 1952, Withrow sent Marcotte the following letter: You were warned on two occasions by me and one occasion by Foreman Mulheren when I was on vacation about requesting off and working elsewhere. You asked off sick for October 23, 1952, and on Thursday, October 23, 1952 at 9:45 a. m. you were working at the United Shoe and Leather Company, Incor- porated, 291 River Street, Haverhill. This is to notify you of your discharge . Please turn in all Company property as soon as possible. Withrow testified that when he came to work the morning of October 23, 1952, he passed the United Shoe factory and saw Marcotte's car nearby. On arrival at the garage, Withrow noticed that Marcotte was booked "off again and the junior man was working." Accordingly, at Withrow's instructions, Foreman Mulheren telephoned United Shoe and ascertained that Marcotte was working there that morning. It was Marcotte 's credible and uncontroverted testimony that on October 24 he went to the garage with the intention of seeing Withrow and ascertaining the reason for Marcotte 's discharge and that the following occurred: I went down to the garage on the 24th with the intention of seeing Mr. Withrow and [Foreman) Mulheren was in the office . . . I asked him what the score was and he said, I don't know, you will have to see Mr. Withrow, and I asked him if I could see Mr. Withrow and he went in the office and stayed a few minutes and came back and said he was busy aid couldn't see me, and I asked Mr. Mulheren if he would go back and tell Mr. Withrow that I would like to see him this morning and he went back in and came out and told me that Mr. Withrow couldn 't see me and if I wanted to make an appointment for 2 or 3 days other than that I didn't know anything. Marcotte testified without contradiction that the Company permitted another op- erator, Eugene O'Brien, who had followed Willett's back-to-work movement, to work as a spare operator and yet retain outside employment in a clothing store, on an ar- rangement similar to that of Marcotte . It is clear from Withrow 's admissions that other employees held outside jobs and yet continued to work for the Company as needed. Withrow admitted that Marcotte had never refused to work when requested and could not recall any instance in which a bus run had not been made due to Marcotte's working for United Shoe , but testified, "I think it is possible we were compelled at the time to pay overtime." No records substantiating this belief were produced by the Company. The Company's contention that Marcotte was discharged for cause must be re- jected . The foregoing findings, in large part based on testimony not specifically controverted, give one reason to infer that the "cause" may have been constructed as a justification for the discharge of Marcotte. In any event, it seems clear that the reasons advanced by Withrow for Marcotte's discharge must be deemed to be merely a pretext to cloak the discriminatory motives behind his discharge. The inconsistent positions taken by Withrow in the course of events leading to Marcotte's discharge in themselves render Withrow's motive suspect in terminating the employment of Marcotte. Thus, although according to Withrow's own testi- mony it was the practice to notify spare operators the night before that their services would be needed on the succeeding day, Marcotte was not so notified on the evening of October 16 that he would be required to work on October 17. Instead, he was booked for work on that day and when he did not appear on October 17 he was reported as missing and was given a 1-day suspension. When Marcotte, accom- panied by Holder, protested the suspension, Withrow, in a reversal of the customary practice as to notification to spare operators, told Marcotte, "We don't have to call you it was never the practice of the Company to call the spare men" the evening before. A second inconsistency of position is shown by the contrast between the instruc- tions given by Withrow to Marcotte on October 20, 1952, and the action taken by Withrow in discharging Marcotte on October 23, 1952. As found above, at various periods since 1950 when Marcotte's kidney aliment necessitated a reduction in his hours of work as a bus operator, he had held a less strenuous part-time jbb at United Shoe with the knowledge and permission of Manager Withrow and Foreman Mul- EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2051 heren and upon the understanding that he would operate buses whenever his services were required . Other employees were permitted to follow the same practice. In 1952 , when Marcotte again became partially incapacitated by the recurrence of his kidney ailment , he reverted to the above practice with the agreement of the Com- pany . His working on a part-time basis for United Shoe was discussed again on Oc- tober 20, 1952, when Marcotte and Holder conferred with Withrow about Marcotte's 1-day suspension . When Marcotte said, "As far as the factory, you know any time you want me you can call me," Withrow replied, "We know that. . . You're taking off personal days and sick days. One thing I want you to do when you take off is to specify to the night foreman the night before that you are taking off sick and not personal days off and we will know what it is." Yet, when Marcotte followed these instructions of Withrow, told Doughty "to be sure to list [Marcotte] off sick" on October 23, and on that day worked at United Shoe, Withrow seized upon these incidents and discharged Marcotte for taking sick leave on October 23, and working that day for United Shoe. A third inconsistency in Withrow's treatment of Marcotte was the former's re- fusal to discuss the latter's discharge on October 24, although according to the prac- tice detailed above Withrow ordinarily discussed with an employee his violation of Company rules. A fourth inconsistency is that other employees were permitted to hold outside jobs and retain their status with the Company by working as spare operators when needed. Moreover, it is difficult to understand, even under the Company's theory of the case, the objection to Marcotte's following the same practice accorded other employees, for admittedly he never refused to work when asked and there is no showing that his working for United Shoe caused the cancellation of any bus trips or in fact caused the Company to pay any employee at over-time rates. These inconsistencies on the part of Withrow, viewed in the light of the other un- fair labor practices engaged in by the Company and set forth above and considered along with the fact that Marcotte was an officer of the Haverhill Local and a member of the group which led the opposition to the back-to-work movement favored by Withrow, lead the Trial Examiner to the conclusion, which is made, that the reasons advanced for the discharge of Marcotte were but a pretext to conceal the Company's real motive and that Marcotte was discharged because of his protected concerted activities in opposing the back-to -work movement and adhering to the strike of the Association. The Trial Examiner concludes and finds that Marcotte was discrimi- natorily discharged on October 23, 1952, in violation of Section 8 (a) (3) and (1) of the Act because of his protected concerted activities, opposition to the back-to- work movement, and leadership in the strike of the Association, and that by thus discriminating against Marcotte , the Company has discouraged membership in the Haverhill Local and the Association and interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. c. The indefinite suspension of Douglas Holder and the discharge of Lynwood Hyde Inasmuch as the discipline imposed upon Holder and Hyde was based chiefly upon their variation from time schedules for the operation of bus runs, the circumstances relating to the discipline of each will first be related and the conclusions as to the complaint 's allegations with respect to them will then be set forth. (1) Circumstances concerning Holder 's indefinite suspension Holder had been a bus operator in the Haverhill Division since August 25, 1936, and his last disciplinary suspension prior to his suspensions in October and December 1952 was a 1-day suspension imposed in January 1950 for an accident. He had been president of the Haverhill Local for 9 years, except for an interval of 3 months, and led the group which was opposed to the back-to-work movement sponsored by Willett in June 1952. On October 23, 1952, Holder was given a suspension of 1 day for conduct occur- ring in the operation of a bus on October 20. On that day, according to reports in Holder's discipline file, Foreman Mulheren observed a bus operated by Holder arrive at Georgetown Square at 5:10 p. m., 5 minutes late, and leave 10 minutes later at 5:20 p. m. with no passengers upon its departure. He arrived at the next ter- minal point , "the Transfer ," at 5:35 p. m., 10 minutes late, and continued on to the next departure point, "the Depot." From the latter point, it appears the route of the bus was to "the Stadium" and then back to the depot to make a connection with a train. From the depot the route ran on to another point, the entire route being a "belt trip." When Holder arrived at the depot from the transfer at about 5:40 p. m., 2052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he decided to omit the run to the stadium and waited for the train with which he was-. supposed to connect after the stadium run . The report of Foreman Doughty showed that Holder left 3 minutes early on a trip run later that evening. The gist of the offenses above is that Holder "layed over" 10 minutes , in George- town Square, which Withrow deemed to be deliberate on Holder's part, thereby mak- ing his bus so late that he omitted the trip to the stadium and that Holder left 3 min- utes ahead of the scheduled departure time for another point later in the evening. A notation by Foreman Mulheren in Holder's file was as follows • On Tuesday, October 21, 1952, between the hours of 7 a. in. and 8 a. in., I received five different telephone calls from several of the factories reporting that on Monday, October 20, 1952, there was no 5:30 p. in. trip to Stadium, as. scheduled. Withrow had no "recollection of talking with" Holder prior to invoking the sus- pension and testified, "I may have, and I usually do, but whether I did or not, I don't know. It is the practice." Holder denied that Withrow inquired about the above- conduct before the suspension was imposed. In view of Withrow's vague recollec- tion, Holder's positive testimony is credited. Holder's version of the above events was that he arrived at Georgetown Square about 10 or 12 minutes late, collected fares from about 12 passengers as they left the bus, took the fare of a passenger boarding the bus, changed bus signs, removed the money from the collection box, and left the square. He arrived at the transfer at 5:35 and at the depot at 5:40 "approximately within 5 minutes of the time that I was supposed to leave" the stadium on the trip back to the depot to make the connection, with the train. Since it had been his experience that the stadium trip was a light one- at that time of day, he determined to omit the trip and make the train connection. Admittedly, he knew that the customary practice when a portion of a trip was to be omitted was for the operator to obtain the approval of a starter at the transfer or to telephone the garage for approval. He did not obtain such approval for his deci- sion to omit the stadium trip. The next notation on Holder's discipline card is the following: "10/27/52. Warned about missing on Sat. Oct. 25, 1952." Holder testified in regard to this notation, "The first time I had heard anything about that was when Mr. Withrow testified so" at the hearing. On `October 27, 1952, Manager Withrow observed Holder operating a bus about 5 minutes ahead of schedule "passing the corner of Maxwell and Washington Street at 4:21 p. in. bound for the Depot. Schedule calls for leaving corner of Lowell Ave- nue and Washington Street," the last departure point on the run to the depot, "at 4:25 p. m." According to the report of Foreman Mulheren, later the same day Mulheren saw Holder's bus depart from Georgetown Square at 5:03 p. in. instead of the scheduled time of 5:05 p. in., in other words, 2 minutes early. For these vari- ations in schedules, Holder was suspended for 2 days on October 28 and 29, and told "any further variance from schedule without valid reason will call for your immedi- ate discharge." Holder admitted at the hearing that he had left the departure point at Washington Street about 5 minutes early because there had been a change in the schedule since he had last operated the run. On December 5, 1952, Holder was indefinitely suspended for the conduct de- scribed in the following paragraph on December 4, but without any discussion with Withrow about the violations with which he was charged and for which he was in- definitely suspended. According to a report of Foreman Mulheren, on December 4, 1952, "at 11:08 a lady, who refused to give her name and address, called on the telephone and re- ported that the Bradford Loop bus, which was supposed to leave the junction of Laurel Avenue and South Main Street, Bradford, at 11:13 a. in., just passed Fernwood Avenue." Withrow testified that after receiving this report on a bus being driven by Holder, Withrow went out to inspect Holder's operation of the bus, which was on a loop run, and also told Inspector Edward Brown to check Holder. Withrow ob- served Holder leave a departure point at noon, 3 minutes ahead of schedule. Ac- cording to the report of Foreman Mulheren, Holder left the same departure point on another run that afternoon at 1:41 p. in., 2 minutes ahead of time. The report of Inspector Brown stated that he observed Holder leave the same departure point 5 minutes ahead of time at 2.13 p. in. instead of 2:18 p. in. and observed him arrive at the next terminal point, the transfer, at 2:17 p. in. Withrow saw Holder's bus in the middle of this run about 5 minutes ahead of time and was at the transfer when he arrived at 2:17 p. in. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2053 According to Holder's credited testimony, he was not informed by Withrow, Brown, ®r anyone that he was running ahead of time on the loop run in question on December 4." Holder on cross-examination described the bus run in question and his opera- tion thereon as follows: A. That route actually don't have an end, it is a circular route, more or less known as a loop and previous to, oh, approximately a year ago the only desig- nation of time on it was the depot time, the time you left the depot and the time you would return to the depot. This point in the middle here has been in there right around a year. Q. (By Mr. Maloney.) You mean a leaving time, in effect, for that point? A. That's right. Q. Do you recall where you were at 2:17 that day? A. I would say I was approximately at the corner of Laurel Avenue and Main Street. Q. Waiting to leave at 2:18? A. No, just kind of moping along in order to stick to this schedule strictly. There are times when you would have to proceed at 2 miles an hour in order to arrive at your next point on time. Q. When you get to a point that has a leaving time you have to wait for that time? A. You can run ahead at times. Q. Yes, but when you get to a point that has a leaving time, as I understand, you are supposed to wait for that time until you leave? A. Ordinarily on a circular route like this rather than have people sit around and wait you try to creep along and stay within your schedule. Q. Maybe on that day you didn't actually wait until 2:18? A. It might have been 2:17. I don't think it was any 2 or 3 minutes. As to the incidents relating to running ahead of time or leaving departure points before scheduled time, other than the one where he admittedly left early by mis- reading the blueprints, Holder testified that he did not believe that he could have operated the buses in that manner inasmuch as he had been aware since early October 1952 "that Mr. Withrow had been checking me," when "Mr. Withrow suddenly occurred at different points where he never had previously." As an extra precaution, according to his testimony, Holder "started carrying two watches"-a pocket watch in addition to his wrist watch-and "was very careful about my leaving and arriving time." Pursuant to the established grievance procedure, International Vice-President O'Brien and Holder met with Withrow on about December 12 or 13 and requested that Holder be reinstated. Withrow declined to rescind the indefinite suspension and they appealed to the assistant general manager's office. Harney, who was assistant to Wilkinson, considered their appeal and gave them a hearing on December 18, 1952, and denied the appeal. At the time of the hearing Holder's appeal from his indefinite suspension was pending before the Company's executive committee. (2) Circumstances concerning the discharge of Hyde At the time of his discharge on January 5, 1953, Hyde had been in the employ of the Company for more than 16 years as a bus operator. Since June 1950 ht had been a member of the executive board of the Haverhill Local; after the back- to-work movement started in Haverhill and the employees abandoned the strike, he assisted in setting up the picket lines and was described by President Holder as his "right-hand man," accompanying him to Boston for negotiation sessions with the Company and also when he met with Manager Withrow on local issues. Hyde was discharged on January 5, 1953, for "being off schedule" in his opera- tion of a bus. In reaching the determination to discharge Hyde for this reason, 1* Brown was not called as a witness and the following testimony of Withrow Is Insuf- ficient to negate Holder's testimony relied on In the text : Q (By Mr. Kowal.) Did Mr. Brown check Mr. Holder's watch? A. He was instructed to, and I assume he did. I believe he told me that Operator Holder's watch was correct. He was running off schedule Q. In any event, that is not contained in any report by Mr. Brown to you, is that right? A. Not in this report. 2054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Withrow relied upon several incidents for which Hyde was disciplined- The first occurred in February 1950, when Hyde was suspended for 3 days on February 18 because he reported a bus to be defective at rush hours and had to. wait 40 minutes for another bus to be sent out, when the original bus had no serious defects. It appears that he had frequently reported buses to be defective prior thereto, and he was severely reprimanded on this occasion. In June 1950, upon a recurrence of this practice, he was indefinitely suspended but on appeal the suspen- sion was reduced to 5 days. In giving reasons for the discharge of Hyde, Withrow at one point testified that after the strike Hyde reverted to his practice of reporting buses for minor defects, yet a little later in his testimony Withrow asserted that Hyde had not reported defective buses after the strike. On September 22, 1952, according to the notations on Hyde's discipline card, he was "warned about going into bank to cash paycheck with passengers in bus holding up passengers 4 minutes." The vice of this conduct was not that he varied from the scheduled arrival and departure times for he could have made up the 4 minutes before he reached the end of the line. The objection to his stopping was that 22 passengers were forced to wait on the bus until he returned. The matter was brought to his attention and he was warned not to repeat this conduct. On November 3, 1952, he was given a suspension for 1 day because on October 31, 1952, he had been observed operating "at least 2 or 3 minutes early" on a bus run and on November 2, 1952, he was "observed laying over with bus #1087 at the Groveland Bridge from 1:41 p. m. to 2:05 p. in. The terminating point of this route is the Pines and not Groveland Bridge." Hyde admitted to Withrow that he had been operating ahead of schedule on the run on October 31 in order to accom- modate passengers. In respect to the violation of rules on November 2, a Sunday, Hyde explained to Withrow that he had no passengers on his bus and had stopped for coffee at a store at Groveland Bridge frequently patronized by drivers. The end of the bus run was a mile removed, at the Pines, where he had a layover of 30 minutes. Withrow's objection to his taking his layover time at the store was that there might be passengers waiting for the bus between Groveland Bridge and the Pines. For this conduct, Hyde was told on November 3 that he would be sus- pended for 1 day from duty on November 7. However, on November 3, 1952, Withrow and Foreman Mulheren determined to, check further on Hyde's manner of operation, "for the simple reason he started to continue the trick previous to the strike" of "running ahead" of time. None of the records which related to Hyde's prestrike conduct and which were read into the record substantiates this statement of Withrow that Hyde had operated in advance of scheduled times prior to the strike. Indeed, it appears from Withrow's testimony that he was relying on the tendency of Hyde in 1950 to report buses for minor defects as a variance from scheduled operations inasmuch as when he asked to have a bus shifted, it made him late on such run. In any event, on November 3, which it is to be noted was the same day that Hyde was notified of the imposition of the 1-day suspension for his conduct on October 31 and November 2, Foreman Mulheren "went to the end of Mt. Washington," and Withrow stationed himself at "Florence Avenue which is approximately one third of the distance from Mt. Washington to the depot." Mulheren reported that Hyde "left the Jct. Lowell Ave. and Washington St. at 4:21 p. in. instead of 4:25 p. in. as called for on Run #5. He left the Haverhill Depot at 4:28 p. m. instead of 4:30 p. in. for Georgetown. Operator Hyde arrived in Georgetown Sq. at 4:53 p. m. and left Georgetown Sq. at 4:56 p. m. instead of 5:05 p. in. as called for on blue' print." Withrow's memorandum stated that Hyde "passed Florence Ave. at 4:23 p. in. on the above mentioned date and left the Depot at 4:28 p. m." For such alleged early departures from scheduled times, which Hyde denied, except for the Georgetown incident, Hyde was informed on November 6 that he would be suspended 2 days from duty on November 9 and 10 and was warned that "any further variance of schedule will be reason for your immediate discharge." On January 1, 1953, Hyde claimed 10 minutes overtime at the end of his day's work and Withrow ordered an inspection on the following Sunday to check his run- ning late on a holiday schedule. The report of Inspector Brown and Foreman Mul- heren for Hyde's operation of a bus on the route in question on January 4, 1953, was as follows: Operator Hyde, bus 1710 arrived at the Haverhill Transfer bound for the Pines at 4:37 p. m., (7 minutes late). He drove at terrific speed along Water and Groveland Sts., making four (4) stops, he arrived at the Groveland Bridge at 4:40 p. m. and at the Pines at 4:41 p. m. He left the Pines at 5: 18 p. m., EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2055 (3 minutes late), arriving at the Transfer at 5:23 p . m., leaving immediately for Hilldale Avenue, (4 minutes early). He arrived at Hilldale Avenue exten- sion at 5:37 p. in. Left Hilldale Ave. at 5:45 p. in., (5 minutes late). Left Transfer for Ward Hill at 5:54 p. in., (4 minutes late). Arrived at Ward Hill at 6:03 p. in. Went into Henderson's store and stood talking to owner. Left Ward Hill at 6:14 p. in., (9 minutes late). Arrived at Transfer at 6:21 p. in. Left Transfer for Lawrence at 6:22 p. in., (5 minutes late). He met the bus coming into Haverhill from Lawrence at Jordan Bonin 's store at 6:29 p. in., exchanged buses and returned to Transfer arriving there at 6:35 p. in. Left Transfer at 6:41 p. in., arriving at Garage at 6:47 p. in., (7 minutes late). Operator Hyde drove at a very high rate of speed at all times with the excep- tion of the trip from Ward Hill to the Transfer at 6:14 p. in. Upon the above report, Withrow discharged Hyde on January 5, 1953, without first discussing with Hyde the above-charged infractions of rules in the operation of the bus on January 4. At the hearing, Hyde disputed the accuracy of some of the above observations of Brown and Mulheren, although Hyde admitted that he might have been late on the bus trip in question, inasmuch as he believed that he was delayed in arriving at the Haverhill transfer at 4.37 p. in. because he had had to stop at the garage and change.buses because a child passenger on the bus he was operating on the run had been ill and had "messed up the bus." Later in his testi- mony, he could not recall whether the shift in buses occurred at 4:25 p. in. or at 1:25 p. in. He also admitted that he might have been late in leaving the Pines since after being reprimanded for leaving early he had made it a practice to leave "perhaps, a minute behind time , so as not to arrive at the next destination at an early time." He denied the early arrival time at Hilldale Avenue and insisted that he did not drive at a terrific rate of speed , pointing out that governors on the motors of the buses lim- ited their speed. According to Hyde, it would be impossible to traverse in his own automobile the mile between Groveland Bridge and the Pines in a minute because the road was extremely winding. He also denied arriving 7 minutes late at the garage at the end of the run and testified had he done so he would have put in a claim for overtime compensation, which he did not do on the evening in question. Pursuant to the first requirement of the established grievance procedure, on Janu- ary 6, 1953, Holder and Hyde conferred with Withrow and requested that Hyde's discharge be rescinded. Withrow refused to comply with their request and he was notified that an appeal from his decision would be made to the Company 's Boston office . At the time of the hearing such appeal was pending. (3) Conclusions as to the indefinite suspension of Holder and the discharge of Hyde The reasons advanced by Withrow for Holder's indefinite suspension were "Three offenses of running ahead of schedule . . . I'd rather say a little something else on that-three different days, there were many offenses in those three days." Thus, although reliance was made upon Holder's omission of the stadium trip and laying over in Georgetown Square for 10 minutes , as related above , the principal reason for his suspension urged by Withrow was "for being consistently off schedule, ahead of time. We recognize that a man may possibly run late, but never ahead of time." Withrow also testified that since Holder's discipline file showed only a single instance of his having operated off schedule prior to the strike, Withrow formed the opinion from Holder's poststrike conduct "after these series of habitually running ahead of time," that Holder "was running off schedule deliberately to make it inconvenient for the Company." Company rule 18 provided that "Buses must not run ahead of scheduled time and must leave stations and time points promptly on time, unless unavoidably delayed." Withrow also explained that "it's very important that [buses] shouldn't run ahead of schedule . People on our system plan to meet the bus, the public timetables state exactly when they leave , and they should not leave ahead of time" and that the Company regarded the operation of a bus ahead of schedule to be a serious offense. Withrow became manager of the Haverhill Division on May 16, 1949 . In testify- ing that it was unusual for a bus to be operated ahead of schedule, he stated that aside from the cases of Holder and Hyde, "to my knowledge ," there was only one other instance of such operation ahead of schedule "in Haverhill , and that 's Operator Berube who left Mt . Washington at 8:35 a . m. instead of 8:45 a . m., and that man was suspended one day . He admitted at that time that he just read the blueprint wrong, and he left ten minutes ahead of time." Withrow's testimony in this regard was not substantiated by the records of em- ployees. These records revealed that since Withrow had become manager of the 2056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haverhill Division, inspectors and foremen had noted 17 instances on 17 different bus runs operated by 10 different bus drivers where departures had been made in advance of the scheduled times. The records also showed that under the managers preceding Withrow, there were 6 instances of buses leaving early among 5 operators. Aside from a warning or instruction, none of the employees who were running in advance of schedules was suspended, except Berube, the operator who was men- tioned by Withrow and who was suspended 1 day on June 29, 1950, for departing 10 minutes ahead of schedule. To summarize Holder's infractions of rules, he was charged with ( 1) omitting the trip to the stadium, (2) laying over in Georgetown Square 10 minutes, and (3) operating ahead of schedule 6 times (7 times if the anonymous telephone complaint is counted) on 3 separate runs. For these offenses, he was indefinitely suspended. The foregoing discrepancy between Withrow's testimony and the records regard- ing instances of operators departing ahead of schedule is not the only circumstance revealed by the record which casts doubt upon the Company's motivation in dis- ciplining Holder and Hyde. A comparison of the record of Holder with that of operator L. E. Page raises doubt as to the Company' s motives regarding Holder's indefinite suspension , since it is evident that the Company accorded Holder a marked disparity of treatment in disciplining him for offenses comparable in number and extent to those of Page, who received merely a reprimand. Thus, the records of Page revealed that between March 23, 1950, and May 5, 1951, during Withrow's tenure as manager, on 6 or possibly 8 occasions inspectors had reported that on 6 or 8 different bus runs Page had departed in advance of the scheduled time. Moreover, the following notation under date of February 2, 1951, listing Page as operating "off schedule" appears to be comparable to Holder's omission of the stadium trip: "Came to Transfer when he should be making 2:30 Pines, told to go to Depot to make Pines. Caused Belt Line to be twenty-five minutes late, as I had to run 3:05 Bridge for him. No one told him to skip 2:30 Pines." For these in- fractions, Page received no disciplinary suspensions but only a warning by Withrow on March 29, 1950. Thereafter, he operated buses at early departure times on 6 instances 75 In respect to Holder's laying over at Georgetown Square, the records of other employees reveal that they had engaged in similar conduct but had not been sus- pended therefor. The record of Willett, who led the back-to-work movement, shows that in addition to 2 notations for "running ahead of time" and 1 for "off sched- ule consistently, sloppy," he was charged with "laying off too long at Depot, Six minutes. I asked him if he couldn't get in on Wingate Street." An entry was made in Whitman's records, in 1945, to the following effect: "Lays off at Depot Square fifteen or twenty minutes, he has been told about this many times." Another circumstance reflecting on the Company's bona fides respecting the dis- cipline of both Holder and Hyde is that although it appears from Withrow' s testi- mony that in general practice if a bus is observed to be running ahead of schedule on a run, "it would be corrected immediately," no attempt was made to correct Holder or Hyde when they were observed to be operating at variance with the schedules. Instead, on each run, they were followed and their offenses noted throughout the run. The records of other employees show that inspectors inquired into the reason for variance, such as checking the time of the operator's watch, or in one instance the inspector detained an operator until the correct leaving time. Furthermore, in imposing the indefinite suspension on Holder and in discharging Hyde, Withrow departed from his customary practice of discussing the infractions with the employees charged with violating company rules. 75 Withrow attempted to distinguish these infractions of Page from consideration in the instant matter on the ground that Page was ultimately discharged "for mishandling the fares, and sometimes in a case of this kind, if a man is mishandling the fares, we over- look these things rather than bring them up for the simple reason it may tip him off in some way, or other, that we're checking on the fares." This explanation seems incred- ible in view of the fact that the above infractions of rules on the part of Page occurred in the period between March 23, 1950, and May 5, 1951, yet he was not discharged for mishandling fares until after the termination of the strike, which ended on July 15, 1952. It seems highly unlikely that it would be necessary for the inspectors to keep him under observation for a period of more than 2 years in order to determine whether he were mishandling fares. Similarly incredible was Withrow's exception to the records of W. M. Ryan, who on September 27, 1950, was prevented from leaving early by an inspector, on the ground that "This man is no longer employed by us. That is another case of mis- handling of fares That might go on without their taking any notice of it." Ryan was not discharged for mishandling fares until about 2 years later on September 5, 1952. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2057 Hyde was the only employee discharged by Withrow for operating in "variance of schedules." The first item relied upon by Withrow as justification for the dis- charge of Hyde was his tendency exhibited in 1950 of reporting defective buses. According to Withrow such action on the part of Hyde resulted in "a variation of schedule when he was laying over 40 minutes with no defects." In this regard, Withrow testified that he meant by variance in schedules that Hyde was "running early or late deliberately because he claimed there were defects in the buses that weren't there." The self-contradictory nature of a portion of Withrow's testimony regarding Hyde's reporting of defective buses in 1952 has been pointed out previ- ously. That is, although Withrow testified at one point that after the strike Hyde reverted to his practice of reporting buses for minor defects, he admitted a few minutes later in his testimony that after the strike Hyde had conquered the tend- ency to make unjustified reports on buses. The second offense of Hyde considered by Withrow in determining to discharge him was Hyde's stopping a bus in the middle of a run to cash a check. As men- tioned above, the vice of this conduct was not that it necessarily made him late and at variance with the bus schedule, but that it caused the passengers annoyance to wait in the bus. The charges contained in the other 3 incidents relied upon by Withrow in dis- charging Hyde were that he laid over at Groveland Bridge on a Sunday run instead of at the end of the run at the Pines a mile farther down, that on 1 run he operated the bus at excessive speed, and that he departed early 4 times on 2 different runs and arrived late 7 times on the same run, which was late at the outset on a Sunday. When testifying in regard to Holder's operating buses in advance of schedules, Withrow stated, "We recognize that a man may possibly run late, but never ahead of time." Yet, when Hyde's operation of the bus behind schedule on Sunday, Jan- uary 4, came in issue, Withrow testified, "On a weekday especially on a schedule, it is possible for a man to get late on practically any route because of traffic condi- tions if he goes through the main streets of town. On a Sunday or holiday unless there would be a parade there is absolutely no reason for" being late. Be that as it may, the records for other employees show that none was suspended for operating behind schedules or for being off schedules. Those relating to early departures and laying over have already been considered. In addition, the records of other employees indicate the following variance from schedules: (1) "off sched- ule consistently, sloppy" in the case of Willett, (2) "off time consistently at this time" in the case of Hammer, and (3 ) "noticed running off time . . . instructed" in the case of Sullivan. These records also reveal that no employee was suspended for driving at exces- sive speeds. A notation on operator Whitman's card under date of October 25, 1950, read, "This operator was in a great hurry when he had plenty of time." The manager preceding Withrow warned operator Redfern who on 1 occasion left a departure point 3 minutes early and arrived at the terminal point 7 minutes ahead of time, "Slow down, you have no reason for fast driving on this route. Why take a chance with your license." Upon the foregoing and the entire record, the Trial Examiner concludes that the reasons advanced for the indefinite suspension of Holder and the discharge of Hyde were pretexts to conceal the Company's real motive and that Holder and Hyde were suspended and discharged, respectively, because of their protected concerted activities in opposing the back-to-work movement and adhering to the strike of the Association. In reaching this conclusion the fact that both Holder and Hyde had been in the Company's employ for 16 years, that Holder was president of the Haverhill Local and Hyde was a member of the executive committee, and that both led the opposition to the back -to-work movement , has been contrasted with the cir- cumstances indicating a discriminatory motive on the part of the Company , includ- ing (1 ) Withrow 's admission that he favored the back-to-work movement led by Willett, (2) the disparity of treatment in disciplining Holder and Hyde for infrac- tions of rules yet condoning similar conduct on the part of other employees, (3) the departures from customary practices in disciplining these employees, (4) the self-contradictory nature of Withrow's testimony regarding Hyde's reporting defec- tive buses after the strike, (5) the statement of Withrow, unsubstantiated by the Company's records of Hyde , that a further check of Hyde was determined neces- sary on November 3 "for the simple reason he started to continue the trick previous to the strike" of "running ahead" of time , ( 6) the findings and conclusions here- tofore reached as to Marcotte's discharge , and (7 ) the other unfair labor practices engaged in by the Company and set forth above. The Trial Examiner concludes and finds that Hyde and Holder were discriminatorily discharged and indefinitely suspended , respectively, on January 5 , 1953 , and December 5, 1952 , in violation of 2058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (3) of the Act, because of their protected concerted activities, oppo- sition to the back-to-work movement, and leadership in the strike of the Association and that by thus discriminating against them, the Company has discouraged mem- bership in the Haverhill Local and the Association and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Cases Nos. 1-CA-1335 and 1-CB-213 Leroy F. Lapham and Lawrence F. Clark were employed in the Company's Brockton Division prior to the strike and were members of the Brockton Local. At the end of the strike on July 15, 1952, there was a shortage of work in the Brockton Division and a number of employees , including Clark and Lapham, were placed in a furlough status. Without discussing at this point certain conflicts in the testimony, it is clear that Clark and Lapham became delinquent in their dues in the Brockton Local after July 1952 and were suspended from membership in that Local. Subsequently, in November 1952 there were openings for jobs in the Brockton Division to which the seniority of Clark and Lapham would have entitled them. However, in reliance upon the union-shop provisions of the contract executed by the Company and the Association in June 1950, the Brockton Local asked that Clark and Lapham be passed over and not be recalled to work because of their delinquency in dues. Lapham and Clark were not recalled to work on November 3 and 5, 1952, when their names were reached on the seniority list, and employees junior to them in length of service with the Company were reemployed instead. 1. The issue as to the existence of a contract The initial problem for determination is whether there was in existence a valid union-shop contract which justified the action taken by the Brockton Local and the Company. The last contract, in a series dating back over 40 years, was executed by the Company and the Association on June 14, 1950, and contained the following provisions as to term: This agreement and the provisions thereof shall take effect as of the 2nd day of June, 1950, and shall be binding upon the Eastern Massachusetts Street Railway Company and its. successors and assigns and said Association, and remain in full force up to nd including January 1, 1952, and thereafter until such time as the parties thereto shall execute a new agreement, either as the result of negotiation or arbitration, with the understanding that the terms and conditions in the new agreement to be hereafter entered into shall be retroactive as far as possible to January 2, 1952. (Emphasis supplied.] As found above, in October 1951 the Company and the Association commenced negotiations for a new agreement, but when they reached an impasse, the Association launched a strike on March 10, 1952. On June 22, 1952, most of the employees in the Lowell Division abandoned the strike and returned to work. On June 25, 1952, the Company executed a contract with the Lowell Local. It has been pre- viously determined that the contract was illegal and that the Lowell Local was unlawfully supported and assisted by the Company. On July 8, 1952, the GCC balloted the striking employees, asking for a vote on whether the employees wished to return to work on the following 3 conditions: (1) That the existing agreement be continued with the addition of 15 cents an hour in the basic wage rate, (2) that the 19 indefinitely suspended Lowell employees be reinstated, and (3) that the Company will continue to recognize and bargain with the GCC. A majority of the employees voted to terminate the strike under those conditions, and on July 15, 1952, they returned to work upon the Company's agreeing to reinstate the 19 Lowell employees. After the end of the strike, the wage increase was made effective. On September 2, 1952, the Association refused to execute a contract proposed by the Company and covering 10 divisions of the Company but excluding the Lowell Division. The Association stated that it would not sign any agreement which did not cover all employees of the Company's 11 divisions. Com- pany President Moran replied that the Association "has a case before the National Labor Relations Board, and it could be determined there as far as he was concerned." The record reveals that since the end of the strike the terms and provisions of the contract executed, in June 1950, by the Company and the Association have been enforced by the parties in all divisions of the Company, excepting the Lowell Division, and that the only change in the terms of that contract has been the wage increase of 15 cents an hour, which was part of the understanding made by the Company and the Association when the latter agreed to terminate its strike on July 15. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2059 The General Counsel contends that there was no agreement with union-security provisions in effect between the Company and the Association within the meaning of Section 8 (a) (3) of the Act in November 1952, and that the action taken by the Company and the Association in respect to the reemployment of Clark and Lapham was violative of the Act. The Company argues that it has always had individual contracts with each of the 11 locals of the Association, that it signed "a new extension of the contract with" the Lowell Local, "whereas the contract with the Brockton Local was still the 1950-1951 agreement . . . as continued in force by" the provisions as to its term, set forth above. Accordingly, the Company asserts that the union-security provisions of the 1950 contract were still in effect in November 1952. At the hearing, in setting forth his position on this issue, counsel for the AFL Unions stated, "At this point we are in agreement with the Company. We think that Section 22 [the provision of the 1950 contract in respect to term, set forth above] has to be given some effect, and we think under the decisions of the Board and in the courts of" the Boeing Airplane case, "Section 22 has to be read as to just what it said; namely, that the last agreement between the parties, 'S0-'S1 was intended to contract them until a new contract was executed. We say until a new valid contract was executed. No new valid contract has been executed by anyone." In answer to the above contentions, the General Counsel argued at the hearing, "I find it to be a difficult thing to conclude that you can infer that this particular section 22 continued in force when a precise agreement embodying that clause and embodying an exact continuation of a contract was offered to the Union and rejected. I think it is impossible to make an inference that Section 22 continued in force. The whole purpose of that section was to substitute itself for 22 and the date. I don't see how you can base any inference to the face of that fact on a section of that kind." To these remarks, counsel for the AFL Unions countered, "Let me say this since you raised the point that there is no more inconsistency in that continuity than at any time during the strike. The Company had submitted an agreement to the full eleven divisions containing a provision or failing to contain a provision which caused the General Conference Committee to reject the agreement. If they rejected, in our view that would in no way make it less possible as a legal matter for Section 22 to then fill the gap with a continuation of the existing agreement in this instance. The refusal of the General Conference Committee to accept" the agreement offered by the Company in September 1952, "was because the Company had . . . changed the bargaining unit and the General Conference Committee refused to sign a contract for an inappropriate unit. . . . It seems to me as a legal proposition from the point of view of contract law the result is you then revert back to Section 22 and you go along with your old agreement." These arguments in respect to the effect of the provisions of the 1950 contract as to its term require a consideration of the interpretation of an almost identical clause in a contract in the Boeing Airplane 76 cases, cited by counsel for the AFL Unions in his argument. At the outset it should be noted that there was one salient distinction between the contract in the Boeing cases and that under consideration. The Boeing contract contained no-strike provisions, whereas the contract herein did not. However, the provisions as to term of the Boeing contract were substantially the same as that with which we are herein concerned. In both, the parties operated under the contract after the anniversary date of each and after the contract became one of indeterminate duration. A second distinction between the instant proceeding and the Boeing case is that herein there is no issue raised as to the Association's compliance with the notice requirements of Section 8 (d). Although the record does not specifically detail the notices given by the Association, one may infer that appropriate notices were given from the fact that the Association submitted to the Company requests for modifica- tion of the 1950 contract in October 1951, more than 60 days prior to January 1, 1952, the date set forth in the termination provision of that contract, and also from the testimony of Norman Branden, who for a period of time was chairman of the GCC. In regard to the practice followed by the parties in their negotiations for "Boeing Airplane Co v. Aeronautical Industrial District Lodge, No. 751, International Association of Machinists, 91 F. Supp. 596 (D. C. W. Wash ), affil. 188 F 2d 356 (C. A. 9), cert. denied 342 U. S. 821. Boeing Airplane Co. v. N. L. R. B., 174 F. 2d 988 (C A., D. C.), setting aside 80 NLRB 447. In regard to the latter, cf. Teamsters Local Union No 174, et at., 90 NLRB 1851 ; Boeing Airplane Company, 86 NLRB 368. See also International Union of Operating Engineers , Local-No. 181 v. Dahlem Construction Com- pany, 193 F. 2d 470 (C A. 6). 2060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreements, Branden testified that after the GCC compiled from the Association's membership suggested changes in the agreement, the GCC delivered to the Company "the changes sixty days prior to the contract being open- ed, in accordance with the law." In view of these factors and in the absence of any issue being raised as to Section 8 (d), it is assumed that the Association com- plied with the notice requirements of Section 8 (d) as interpreted by the Board in its latest rulings.77 Turning then to the question of the effect to be given to the provisions of the 1950 contract as to term, it is clear that the contract continued in effect until the time of the Association's strike, for the contract provided that it should be binding upon the parties until "January 1, 1952, and thereafter until such time as the parties thereto shall execute a new agreement, either as the result of negotiation or arbitration, or both negotiation and arbitration... . After January 1, 1952, the contract be- came one of indeterminate duration, "terminable by unilateral action on the part of either party after a reasonable lapse of time." The next question is whether the Association's strike on March 10, 1952, which resulted from an impasse in negotia- tions over a change in the pension plan, served as a termination of the contract as it existed at that time. The courts held in the Boeing cases, under a somewhat dif- ferent factual situation, that a strike of a union some 13 months after its collective- bargaining contract with the employer became one of indefinite duration did not constitute a termination of the contract. Although it may be argued that the foregoing holdings in the Boeing cases are applicable only to contracts of indeterminate term containing no-strike provisions, it nevertheless is significant in interpreting the provisions of the contract in the instant proceeding, as is the past practice of the parties under earlier contracts. A contractual relationship between the Company and the Association has existed for more than 40 years. During that time, it appears, from the credible and uncon- troverted testimony of Assistant General Manager Wilkinson, that there were oc- casions when an interval of time intervened between the date of expiration of one contract and the date of execution of the succeeding contract, yet during such inter- vals the provisions of the expiring contract were carried in full force and effect until the new contract was signed. He recalled that in 1943 or 1944 one contract was carried over for an indeterminate term for a period of 16 months before the parties consummated a new agreement. Moreover, an examination of the provisions as to terms of the previous contracts between the parties shows that the provisions contained in the 1950 contract were different from those preceding it. The contracts from 1943 to 1949, inclusive, ap- pear to have placed a yearly limit upon the length of time the contracts could be carried over on terms of indefinite duration. The contracts, prior to 1943, limited their duration to a specified date "and thereafter, unless either party notifies the other in writing not less than thirty (30) days prior to said" specified date "and each year thereafter, of any desired change or changes in any section or sections." In view of the specific language of section 22 of the 1950 contract, set forth above, the differences in its language from the term-provisions of earlier contracts, the long period of time covered by the contractual relationship between the parties, the practice of the parties in the past of giving effect for a considerable length of time to contracts of indefinite term, and the holdings in the Boeing cases, it is found that the strike of the Association on March 10, 1952, did not constitute a termination of the contract. We come next to the question of whether the Company's execution of the unlaw- ful contract with the illegally assisted Lowell Local on June 25, 1952, constituted a unilateral termination by the Company of its contract of indetermination dura- tion with the Association. Since the contract with the Lowell Local was unlawful, since the Lowell Local was illegally supported by the Company, and since it has been found that the Company did not execute such contract in good faith, it is clear that the action of the Company in entering into the agreement with the Lowell Local could not be deemed to terminate its lawful contract for an indefinite term with the Association, which was then on strike, even though such action and other conduct of the Company constituted violations of Section 8 (a) (2) and (5) of the Act. The Company's execution of the contract with the Lowell Local, as well as other conduct by the Company detailed above, constituted a breach of the contract with the Association for an indefinite term.78 Moreover, it is to be noted that the rr United Packinghouse Workers of America, CIO, et at., 89 NLRB 310; Wilson ct Co., Inc., 105 NLRB 823. 71 Cf. Williston on Contracts, Section 1027A. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2061 Association did not become aware of the contract of June 1952 between the Com- pany and the Lowell Local until September 1952. It is found that when the Association was unable to achieve the purpose of its strike-that is, the change in the pension plan-and determined to abandon the strike and return to work on July 15, 1952, its contract of indeterminate duration with the Company continued in effect, as modified by a 15-cent an hour wage in- crease granted by the Company pursuant to the understanding reached between the Company and the Association for the settlement of the strike. It is further found that the contract was in effect throughout the Company's 11 divisions. When the Company and the Association met in September 1952 to memorialize their then existing agreement for an indefinite term into a contract with a defined term, the Company submitted a proposed agreement which covered an inappro- priate unit and the Association learned for the first time of the Company's June breach of the contract then in existence between the Company and the Association. With the rejection of the Company's proposal, the contract of indefinite term con- tinued in effect and had the Association chosen, it could have insisted upon per- formance by the Company of the contract insofar as it related to the Lowell Divi- sion. It did not do so, but did insist upon the performance of the contract, which was lawful and which covered the unit found herein to be appropriate, in all other respects. Upon the foregoing and the particular circumstances of the case, the Trial Ex- aminer finds that in November 1952 an agreement containing lawful union-security provisions was in existence between the Company and the Association. 2. The facts relating to the failure of the Company to reemploy Clark and Lapham The uncontraverted evidence shows that Clark and Lapham were employees in the Campello shop in the Brockton Division and were members of the Brockton Local. At the end of the strike on July 15, 1952, there was a shortage of work in the Brockton Division and a number of employees, including Clark and Lapham, were placed in a furlough status. The record also reveals that in July 1952, shortly after the end of the strike, the GCC levied a special assessment of $20 on each member to build up a fund to reimburse expenses incurred by the Association during its strike.79 It is also clear that in order for members to remain in good standing in the Association they were required to pay their dues each month and to pay the assessment. However, in enforcing the union-security provisions of the contract, the Brockton Local never asked for the discharge of any employee or for the Company not to recall a laid-off member because such members had failed to pay the assessment. The union- security provisions were invoked only in cases where the employees were delinquent in their dues. Two employees in the Brockton Local had flatly refused to pay the $20 assessment and although they were suspended from membership because of such refusal, the Brockton Local did not ask for their discharge since the employees con- tinued to pay their dues. Against the background of the foregoing uncontraverted facts, a resume of testimonial versions given by Lapham, Clark, and Harry Gustafson, treasurer of the Brockton Local, as to conversations between and among them regarding the payment by Clark and Lapham of dues will be considered seriatim. Lapham testified that in the third week in June 1952, prior to the end of the strike on July 15, he and Clark had a conversation with Harry D. Gustafson, treasurer of the Brockton Local. Lapham asked Gustafson for a withdrawal card. Gustafson said, according to Lapham, "Why don't you pay $1.50 and hold your death benefit." Lapham replied, "No, I'm not interested in it." Gustafson promised to send Lapham a withdrawal card. In respect to his reason for asking for a with- drawal card in June, prior to the end of the strike, Lapham testified, "I felt I was pretty near down on the end of the [seniority] list. It was getting close to the end 79 Levin, treasurer of the GCC, testified that the assessment was levied in the summer of 1952 Later he was recalled as a witness to testify in regard to disbursements made by the GCC. At that time he testified regarding checks dated July 19, July 31, and August 4, 1952, respectively, given Mechanical Delegate Jeffries, MacLean as acting president of Local Division 280, and Holder as president of the Haverhill Local as ex- pense money to be used by them in attending a State convention Levin explained that such advance of funds was to be deducted from the $1,000 "kick back" to be returned to each local upon the completion of their collection of the special $20 assessment on each member. Thus, it seems clear that the special assessment must have been levied in July prior to the date of the first of these checks. 2062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strike and after every strike they always had a slack period . and I figured my seniority wasn 't going to be enough for me to go back in the beginning ." In this regard, Lapham further testified that he requested the withdrawal card " so I would be in good standing so I would not have any back pay fight later on. That clears- you in any union." Clark placed the conversation as occurring in late June or early July 1952, and his testimonial version of the conversation with Gustafson was as follows: I asked for a withdrawal card and he said , why don't you keep your dues up, and I said, no, Harry, that I'm not interested, and he said, why don't you pay a dollar and a half and keep your death benefit, and I said jokingly, I have enough; to bury me. He said, you want a withdrawal card and he wrote it down on a piece of paper and then he said he'd mail it to me. Clark admitted that although he allegedly requested the withdrawal card in June, he made no mention of it when he received his strike benefit payment on July 15 and' he made no objection to the deduction of his monthly dues from the benefits at that time. According to Lapham, Gustafson telephoned him in October 1952 and said, "What are you going to do about going back to work?" Lapham queried, "I don't know what you mean." He said, "Well, you have to pay your union dues and assessment." Lapham asked, "Where's my withdrawal card?" Gustafson replied, "That is what I will explain. You have to pay your union dues and assessment." Lapham remon- strated, "You held up my withdrawal card for that?" Gustafson replied, "You will be suspended for it." Lapham asserted, "I don't know anything about that." During the conversation, Gustafson told Lapham that "this was the last chance" Lapham "had to make up" his mind. About a week later, according to Lapham, he telephoned International Vice- President O'Brien and asked him how long he "should wait for a withdrawal card." O'Brien inquired whether Lapham was working and he stated, "No that's why I want the withdrawal card." O'Brien pointed out, "There is the question of union dues and being in good standing," but ended the conversation by saying, "I only know your side of it. You shouldn't have to wait more than 30 days" and by promising to men- tion the matter when he saw John Costello, president of the Brockton Local, later in: the week. It was Lapham's testimony that not hearing any more about the matter, he tele- phoned Costello later and asked "What was going on" and about Lapham's "being on a suspended list." Costello replied that he knew nothing about it and said, "You will have to see Gustafson. . . . When he made out the list I told him to be very careful, I didn't want to have any trouble with him." Later the same evening, Lapham telephoned Gustafson and asked him for the reason of his suspension. According to Lapham, Gustafson replied, "You suspended- yourself." Lapham threatened, "I will give you five days or I will take it further." Gustafson replied, "It was cut and dry, take it where CLaphaml wished." Turning now to Clark's testimony regarding further conversations with Gustafson, the last of July Gustafson telephoned Clark and asked, "What about going back to work?" Clark, like Lapham, queried, "What do you mean, Harry?" Gustafson re- plied, "There's a matter of the assessment and dues." Clark replied, "I don't know, I don't believe I'm interested.. . I'm working now and they may not put men back for ten years." Gustafson pointed out, "That way I may have to suspend you." Clark replied, "If that is the way it has to be, O. K." "Some weeks after" this conversation, Clark "got to thinking, maybe if they put men back to work and I paid my dues and was in good standing," he might be reem- ployed. Accordingly, he telephoned Gustafson and inquired about the matter. It was Clark's testimony that the following conversation occurred: When Clark pre- sented his problem, Gustafson said, "I was afraid of that." Clark inquired, "How about it, Harry, how much is it going to cost me?" Gustafson replied, "Right around $33." Clark then asked, "What can we do about it?" Gustafson promised to see Costello about the matter, but Clark heard no more about it. Early in November Clark visited the Campello shop and found that employees who had less seniority than he did with the Company were working. Clark thereupon telephoned Gustafson and asked, "What's the story over at the garage, why wasn't I called back to work?" Gustafson replied, "You weren't in good standing ." Clark disputed that statement, avowing, "I offered to pay my dues and assessment," and, according to Clark, "a little argument" ensued between them. Clark charged, "I didn't vote for the strike. . . You put me out on the street." Gustafson countered, "Your own men did, we didn't." In respect to a reference to a withdrawal card, Clark EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2063 testified as follows: "I said, 'I asked for a withdrawal card the third week in June.' He said something about a month to get it, you would run into July. I didn 't under- stand it . We had a little discussion and I hung up." We turn now to Gustafson 's version of his conversations with Clark and Lapham. Gustafson denied that he had any conversation with Clark or Lapham regarding a withdrawal card before or after the end of the strike. He testified that he had the following conversation with them in July 1952: Well, in regard to Clark, he felt that he was not interested in his working for Eastern Mass . any longer ; that he was at the time employed and that he felt that he would pay no further dues and be a member of the organization. So July benefits were paid off-$15 a week-and I took his union dues for the month of July and then I received no further dues from him after that. And in regards to Lapham , well, he seemed to be uncertain whether or not he was going to continue on, and I instructed him that in order for him to remain in good standing he must take care of his dues, and I also took his dues out for the month of July the same as I did for Clark, and from then on I received no further dues from Lapham . Toward the end of the month whereby he was uncertain whether or not he was going to continue in the organization, I let him lapse over into the next month thinking that, well , perhaps the man might change his mind. Gustafson testified that the last conversation he had with Clark or Lapham occurred- about the middle of September 1952 when he telephoned Lapham and told him that "he'd have to pay his dues in order to remain in good standing. As a matter- of fact , he was passed the limit. Because of the fact he seemed to be uncertain . . whether or not he was going to continue on, I took the chance thinking he might come back and square himself up with the local and become a member in good. standing." Gustafson admitted that he also mentioned the payment of the assessment. The testimony of President Costello in part corroborated that of Gustafson as to the lack of a request by Clark and Lapham for a withdrawal card . Such cards were issued by the treasurer only after the executive board had approved their issuance. Costello testified that at no meeting of the executive board of the Brockton Local was he ever advised that Clark or Lapham had requested withdrawal cards. Although the testimony of Clark and Lapham was not particularly convincing, especially in regard to their June request for withdrawal cards, and gives one reason to suspect that the injection of this issue by them was an afterthought and an attempt by them to bolster their cases, the Trial Examiner finds it unnecessary for the pur- pose of this report to resolve definitively the conflicts in the testimony as to their requests for such cards. Aside from this conflict , the testimony of Clark , Lapham, and Gustafson is not fatally irreconcilable as to the main points of their conversations. Assuming that they requested the withdrawal cards in June, prior to the end of the strike in July, it is clear, from the credible and undenied testimony of President Costello , that they could not have then been entitled to them , because "Those mem- bers were still working like the rest of us were although we were out on strike, but they were employees of the Company until they were laid off on the 15th of July; therefore we could not" have issued such cards to them in June. The constitution and bylaws of the Brockton Local provided that withdrawal cards should be issued by the consent of the executive board when requested to "any member in good stand- ing" who "severs his employment with the Company ," or "is permanently transferred to some other division of this Company," or "is promoted to an official position by the Company." If the alleged requests for withdrawal cards became effective in July after Clark and Lapham were placed in a furlough status upon the termination of the strike, then it would appear that their failure to have paid the assessment of $20 levied in July would have removed them from that group of employees whose membership was in good standing with the Brockton Local . Thus, since Clark and Lapham were not members in good standing by their failure to pay the assessment , they could not have fulfilled the initial prerequisite for obtaining a withdrawal card in July; such cards were issued only to members in good standing . Admittedly , they never paid the assessment and never tendered dues after their dues for July were deducted from their strike benefits. The constitution and bylaws of the Brockton Local provided for the automatic suspension of members who fail to maintain their dues payments of $ 1.75 monthly for a period of 2 months. Clark was automatically suspended under this provision for failure to pay dues on September 30, but as Gustafson believed that Lapham; 2064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might decide to pay dues, he carried Lapham on the membership rolls until October 31, when he was suspended for failure to pay dues. Upon the foregoing , it is clear that even if the testimony of Clark and Lapham is credited in regard to their requests for the withdrawal cards, that issue lends no support to their cases. They were never entitled to them under the constitution and bylaws of the Brockton Local. In the end , one must conclude that the reason for their suspension from membership was their failure to maintain their dues payments. Both were aware that they were required to maintain such payments in order to be eligible for recall by the Company. When employees were being recalled in October or November 1952, the Union submitted a list of members who had maintained their dues. Lapham and Clark were not on such list . Had they maintained their dues they would have been eligible for recall on November 3 and 5, respectively. Upon the foregoing , the Trial Examiner concludes that the action of the Brockton Local and the Company taken in respect to the recall of Lapham and Clark was not violative of the Act and, accordingly, that the Brockton Local has not engaged in violations of Section 8 (b) (1) and (2) of the Act in regard to the recall of Lapham and Clark and that the Company has not engaged in violations of Section 8 (a) (1) and (3) of the Act in respect to the recall of Lapham and Clark. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with the operations of the Company 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 com- merce and the free flow of commerce. V. THE REMEDY As it has been found that the Company has engaged in unfair labor practices, it will be recommended that the Company cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Company unlawfully recognized and rendered support and assistance to the Lowell Local and its successor , the Transit Workers, unlawfully entered into a contract with the Lowell Local and permitted its successor , the Transit Workers, to assume and administer such contract with union-security provisions, although the Transit Workers has never been in compliance with Section 9 (f), (g), and (h) of the Act. The Trial Examiner will therefore recommend that the Company withdraw recognition from the Lowell Local and/or its successor, the Transit Workers, and cease giving effect to the contract of June 25 , 1952, or to any modification , extension , supplement , or renewal thereof, or to any superseding agree- ment with such organizations . Nothing herein shall be construed as requiring the Company to vary or abandon the wages , hours of employment , rates of pay, or other substantive features of its relationship with the employees which may have been established in conformity with such agreement. The Trial Examiner has found that the Company refused to bargain with the GCC as the exclusive representative of its employees in the appropriate unit found herein. It will accordingly be recommended that the Company , on request , bargain collectively with the GCC as such representative and, if any understanding is reached, embody such understanding in a signed agreement. It has been found that by indefinitely suspending Dustan B . Kelley on August 14, 1952, Frederick J. McNamara on August 21, 1952, John Crow on August 25, 1952, and Ralph J. McCarthy on January 21, 1953; by removing Daniel E. O'Neill from its roster of employees on August 19, 1952; by suspending Patrick Cox on September 24, 1952, and on January 22 and 23, 1953, by suspending Archie Mac- Lean on November 8, 10, 11 , 12, and 13, 1952, and December 2, 3, 4, 6, 8, 9, 10, 11, 13, and 15, 1952; and by suspending Martin E. Halloran on November 7, 9, 10, 11 , and 12, 1952, December 2, 3, 4, 7, 8, 9, 10, 11, 14, and 15, 1952, and February 11, 12, and 13 , 1953, because of their adherence to Local Division 280 and the Association and because of their opposition to the Lowell Local and its successor , the Transit Workers, the Company has discriminated in regard to the hire and tenure of such employees . It has also been found that by discharging Ernest Z. Marcotte on October 23, 1952, and Lynwood M. Hyde on January 5, 1953, and by indefinitely suspending Douglas Holder on December 5, 1952, because of their EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 2065 protected concerted activities, opposition to the back-to-work movement in the Haverhill Division, and leadership in the strike of the Association, the Company has discriminated in regard to the hire and tenure of such employees. The Trial Examiner will, accordingly, recommend that the Company offer Dustan B. Kelley, Frederick J. McNamara, John Crow, Ralph J. McCarthy, Daniel E. O'Neill, Ernest Z. Marcotte, Lynwood M. Hyde, and Douglas Holder immediate and full reinstate- ment to their former or substantially equivalent positions 80 without prejudice to their seniority and other rights and privileges. The Trial Examiner will further recommend that the Company make Dustan B. Kelley, Frederick J. McNamara, John Crow, Ralph J. McCarthy, Daniel E. O'Neill, Ernest Z. Marcotte, Lynwood M. Hyde, Douglas Holder, Patrick Cox, Archie MacLean, and Martin E. Halloran whole, in conformity with the Woolworth formula,81 for any loss of pay they may have suffered by reason of the Company's discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the Company's discrimination against him to the date of the offer of reinstatement or the end of the discriminatory suspension, as the case may be, less his net earnings during said period." It is recommended further that the Company make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amount of back pay due 82 It has also been found that the Company discriminatorily refused to permit Daniel E. O'Neill to return to work on August 31, 1952, because charges in O'Neill's behalf had been filed with the Board. It will be recommended that the Company cease and desist from interfering with, restraining, or coercing its employees in violation of Section 8 (a) (1) of the Act by interfering with the election of officers in the locals of the Association, by in- definitely suspending employees because of their adherence to or assistance of the Association or because they engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and by promising benefits to employees if they withdrew charges against the Company filed in their behalf. Because of the Company's unlawful conduct violative of all five sections of Sec- tion 8 (a) of the Act and its underlying purpose and tendency, the Trial Examiner finds that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Company's conduct in the past.84 The pre- ventive purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the Trial Examiner will recommend that the Company cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It will also be recommended that the complaint in Cases Nos. 1-CA-1390, 1-CA-1374, and 1-CA-1287 be dismissed insofar as it alleged that by the action taken against Patrick Cox the Company engaged in violations of Section 8 (a) (4) of the Act, and that the Company discriminated in regard to the hire and tenure of employment of John McCabe by indefinitely suspending him on or about August 18, 1952. It will further be recommended that the complaints in Cases Nos. 1-CA-1335 and 1-CB-213 be dismissed in their entirety. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Amalgamated Association of Street, Electric Railway and Motor Coach Em- ployees of America, AFL; Local Divisions 174, 235, 238, 240, 243, 246, 253, 261, 280, 373, and 503, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL; and The General Conference Committee of 80 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 81 F. W. Woolworth Company, 90 NLRB 289 82 Crossett Lumber Co , 8 NLRB 440 ; Republic Steel Corp. v. N. L. R. B., 311 U S. 7. 88 F. W. Woolworth Company, 90 NLRB 289 84 N. L. R. B. v. Express Publishing Company, 312 U. S. 426. 338207-55-vol. 110-131 2066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL (that is, the Lowell Local), was, and its successor, Transit Workers Local No. 1, is, a labor organization within the meaning of Section 2 (5) of the Act. 3. All bus operators and collectors employed by the Company and all employees of its mechanical and miscellaneous departments exclusive of office and clerical employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The General Conference Committee of Boston, affiliated with Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, was at all times material herein, including September 1, 1952, and thereafter, has been and now is the exclusive representative of a majority of the employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on June 25, 1952, and at all times thereafter, to bargain collec- tively with The General Conference Committee of Boston, affiliated with Amal- gamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, as the exclusive representative of all its employees in the appro- priate unit, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By recognizing and rendering support and assistance to Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL (the Lowell Local), and its successor, Transit Workers Local No. 1, by entering into a contract with the former, and by permitting the latter to assume and administer such contract with union-security provisions, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 7. By discriminating in regard to the hire and tenure of employment of Dustan B. Kelley, Frederick J. McNamara, John Crow, Ralph J. McCarthy, Daniel E. O'Neill, Ernest Z. Marcotte, Lynwood M. Hyde, Douglas Holder, Patrick Cox, Archie MacLean, and Martin E. Halloran, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 8. By discriminating against Daniel E. O'Neill on August 31, 1952, because charges in O'Neill's behalf had been filed with the Board, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act. 9. By the foregoing unfair labor practices, by indefinitely suspending Archie MacLean, Frank Shannon, Frederick J. McNamara, Daniel E. O'Neill, John Crow, Donald M. Gagnon, John McCabe, Ralph J. McCarthy, J. Lawrenson, P. Fell, T. Crowley, J. Barbieri, H. Heafy, T. Kilmartin, O. Ange, Patrick Cox, Fred R. Leibold, Dustan B. Kelley, and Raymond McCarthy on June 27, 1952, and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 11. By the action taken by the Company against Patrick Cox, the Company has not engaged in violations of Section 8 (a) (4) of the Act. 12. By indefinitely suspending John McCabe on or about August 18, 1952, the Company has not discriminated against McCabe within the meaning of Section 8 (a) (3) of the Act. 13. By failing to reemploy Leroy Lapham and Lawrence Clark in November 1952, the Company has not discriminated against them within the meaning of Section 8 (a) (3) and (1) of the Act. 14. Local 235, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, has not engaged in any unfair labor practices in respect to Leroy Lapham and Lawrence Clark within the meaning of Section 8 (b) (1) and (2) of the Act. [Recommendations omitted from publication.]