Evansville and Ohio Valley Railway Co.

National Labor Relations Board - Board Decisions

Apr 24, 1969

175 N.L.R.B. 518 (N.L.R.B. 1969)

518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Will Coach Lines, Inc.; Will Coach Lines, Inc.,
d/b/a Evansville and Ohio Valley Railway
Company, Inc.; Will Coach Lines, Inc., d/b/a
Andrew P. Will; Will Coach Lines, Inc., d/b/a
Evansville & Ohio Valley Bus Lines, Inc.; Will
Coach Lines, Inc., d /b/a Evansville & Ohio Bus
Lines: Andrew P. Will, Sole Proprietor : Evansville
& Ohio Valley Railway Company , Inc.; Evansville
& Ohio Valley Railway Company ; Evansville &
Ohio Valley Bus Lines , Inc.; and Evansville &
Ohio Valley Bus Lines and Amalgamated Transit
Union , AFL-CIO Local Division 878. Case
25-CA-31 10
an amended charge filed on July 29, 1968, against all
entities named in the caption (herein called Respondents),
the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
31, 1968, alleging that Respondents had engaged in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, herein
called the Act. Respondents filed an answer and the
hearing in this matter took place before me in Evansville,
Indiana, on September 19 and 20, 1968. Subsequent to the
hearing, Respondents and General Counsel filed briefs
which I have carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
April 24, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 20, 1968, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondents filed exceptions to the Trial
Examiner's Decision and a brief in support thereof
General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the above-named Respondents,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J BOTT, Trial Examiner Upon a charge of
unfair labor practices filed by Amalgamated Transit
Union , AFL-CIO, Local Division 878, on April 17, 1968,
against Evansville and Ohio Valley Bus Lines, Inc., and
FINDINGS OF FACT
I. JURISDICTION OF THE BOARD
Respondents admit that Will Coach Lines, Inc.,
Andrew P. Will, Sole Proprietor, and Evansville & Ohio
Valley Railway Company, Inc., are affiliated businesses
engaged in transportation of persons and property with
common officers, ownership, directors and operators and
constitute a single integrated business enterprise; and that
said directors and operators formulate and administer a
common labor policy for said companies. Respondents
deny, however, that it is an employer engaged in
commerce as alleged in the complaint.
The Evansville and Ohio Valley Railway Company,
Inc. (herein E & OV), was formerly owned by Dayton and
Western Motors, Inc , which is principally owned by Mr
and Mrs St John, who also own other transportation
companies, one of which is Evansville City Transit, Inc.
(herein ECT). E & OV operated two divisions, namely,
the Owensboro City Transit division, which provided bus
service for the general public in Owensboro, Kentucky,
and the Evansville and Ohio Valley Bus division, which
operated certain intrastate and interstate bus routes and
charter bus services
E & OV was sold in April 1968 by Dayton & Western
Motors to Jerome and Martin Will, who with their
brother Francis and father Andrew P. Will, have been
engaged in the transportation business for some time.
Dayton and Western Motors did not include the
Owensboro City Transit division in the sale to the Will
interests but retained possession and control of it by the
terms of the agreement. The Evansville and Ohio Valley
Bus division, its assets, some of its equipment and all of
its routes were transferred, however, and Will Coach
Lines, Inc., which is wholly owned by Andrew P. Will and
managed by him and his sons, began to operate E & OV.'
It was stipulated at the hearing that during the calendar
year 1967 E & OV received $81,681.68 for hauling
passengers and freight in interstate commerce The
hearing took place in September 1968 and it appeared
that exact interstate revenue data for the purchasers'
operations was not readily available.
Respondents operate in interstate commerce servicing
the same routes that E & OV did before the sale. There
can be no question, therefore, that the Board has legal
jurisdiction over their operations. The Board does not
assert its jurisdiction to the hilt, however, but does assert
jurisdiction over all passenger and freight transportation
enterprises engaged in the furnishing of interstate
'Actually the Will family was in possession of the property and
operations by agreement of the sellers and buyers before the closing date
175 NLRB No. 87
WILL COACH LINES, INC. 519
transportation services, and all transportation and other
enterprises which function as essential links in the
transportation of passengers or commodities in interstate
commerce, which derive at least $50,000 gross revenue per
annum from such operations.' In applying its
jurisdictional standards the Board relies on the experience
in the most recent calendar or fiscal year, or the 12-month
period immediately preceding the hearing in the case
before the Board.' Respondents argue, however, that
records of the seller for 1967 and the first 2 months of
1968 showing its interstate charter operations cannot serve
as an accurate projection of Respondents' sales to
interstate customers because they show that the seller
obtained a substantial amount of revenue in 1967 from the
Camp Breckinridge Job Corp Center contract which is not
serviced by Will Coach Lines, Inc., which is operating E
& OV's certificates, because Camp Breckinridge now
operates its own buses. In my opinion, and I find that the
stipulation of the parties concerning the seller's interstate
operations is a reasonable foundation for projecting the
purchasers annual operations at a level high enough to
support the Board's assertion of jurisdiction. In the first
place, even if the Camp Breckinridge account is deducted
from the seller's gross earnings in commerce it would
amount to only approximately $5000 per year, and
second, if Respondents failed to retain any of the seller's
interstate charter business, which is extremely unlikely,
there would still remain over $40,000 of the seller's
interstate scheduled passenger business to account for.'
Respondents' contentions are based on pure speculation
and cannot overcome the actual experience of the seller in
the last available appropriate period. I conclude that the
Board has and should assert jurisdiction over the
operations of Respondents.'
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Transit Union, AFL-CIO, Local
Division 878, herein called the Union, is a labor
organization within the meaning of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue Involved
The principal question is whether Respondents are
obligated to bargain with the Union which represented the
employees of the company it purchased on the ground
that Respondents are a "successor employer."
B. Basic Findings
1. The identify and operations of the purchasers
before the purchase
The agreement to buy the shares of Evansville & Ohio
Valley Railway Company, Inc. describes Martin J. Will
and Jerome T. Will as the "buyers." These two gentlemen
and their father Andrew P. and brother Francis have been
engaged in the transportation business for some years.
The nature and extent of their operations is found in the
'H P 0 Service, Inc.. 122 NLRB 394.
'Arroostock Federation of Farmers, Inc., 114 NLRB 538.
'As a matter of fact Respondent did not lose all of the seller's
customers.
'Arroostock Federation of Farmers, Inc., supra, Burton Beverage Co.,
116 NLRB 634; Car City, Inc., 116 NLRB 1571.
testimony of Martin Will and in some undenied
allegations of the complaint.
Will Coach Lines, Inc. is wholly owned by Andrew P.
Will. According to Martin Will, Will Coach Lines, Inc. is
a "fairly new" company which operates a route between
Evansville and Mount Vernon, Indiana, under a certificate
of public necessity from the Indiana Public Service
Commission, and also operates Andrew P. Will's, a sole
proprietor, certificates of necessity from the Commission
to transport children to and from school in the Evansville
area . Will Coach Lines, Inc. also has some intrastate
charter business and leases buses to organizations and
individuals. Martin Will is secretary and assistant
manager of Will Coach Lines, Inc. and his brother
Jerome is general manager. At the time of the sale of E &
OV's stock to Respondents, Will Coach Lines, Inc.
employed one or two drivers on its Evansville to Mount
Vernon route, and Martin and Jerome Will drove most of
its charter service. The number of drivers employed by
Andrew P. Will, sole proprietor, in its school
transportation business varied, but it appears from Martin
Will's testimony that at the time of the sale there were
approximately eight full-time school bus drivers on the
Andrew P. Will payroll. All of the drivers of Will Coach
Lines, Inc. and Andrew P. Will operated out of
Respondents' one and only garage and headquarters at
828 East Walnut Street, Evansville.
2. The identity and operations of E & OV at the time
of the sale
E & OV was acquired in 1961 by Dayton and Western
Motors, Inc. which was owned by Evansville City Transit,
Inc. (herein ECT), which provided public bus
transportation service in the Evansville area. As a result
of the sale, E & OV's buses and maintenance employees
were moved to the ECT garage in Evansville from which
point E & OV continued operations.'
When negotiations for a sale of E & OV's stock to
Respondents commenced, E '& OV owned certificates of
public convenience and necessity issued by the Public
Service Commission of Indiana, the Kentucky Department
of Motor Vehicles, and the Interstate Commerce
Commission under which it was engaged in the business of
operating a transportation system over regular routes
between Evansville, Indiana, and Owensboro, Kentucky,
Evansville, Indiana and Henderson, Kentucky, and
Cannelton, Indiana to Rockport (Reo), Indiana, and also
in the operation of special and charter bus operations both
intrastate in the State of Indiana and interstate from
points off its certificated interstate routes to points in the
United States. E & OV's regular routes were manned by
four drivers. Elvis Lamb and Paul Mabrey drove two
round trips daily between Evansville, Indiana and
Owensboro, Kentucky, each starting from opposite ends
of the run, and Eddie Chenault handled the run between
Cannelton, Indiana, and the intersection of Indiana
Highway 66 and U.S. Highway 231, which is also known
as the Modern Road and shown on most road maps as
Rockport, Indiana. Minus Williams drove the Evansville,
Indiana to Henderson, Kentucky route. E & OV had a
substantial amount of charter business. Although the four
named regular route drivers were regularly scheduled, on
occasion they drove charter service in addition to their
regular runs. The regular route drivers of E & OV could
elect to take charter runs if they were available, but if
'This did not affect the Owensboro division of E & OV.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were not, charters were driven by city drivers from
Evansville City Transit on their days off These drivers
would appear on E & OV payrolls for the charter work,
but they acquired no seniority on the E & OV system. It
appears from payroll records in evidence that most of the
E & OV charter business was driven by persons other
than the four regular route men.
As stated earlier , E & OV buses were housed in
Evansville City Transit's garage and serviced by its
personnel . In addition , both companies shared common
offices and clerical personnel . Although there seems to
have been two dispatchers on occasion , E & OV's
approximately 15 buses were normally dispatched by an
ECT dispatcher. In any case , all employees of both
companies were commonly supervised by General
Manager Glen Chumbley. According to Clayton, vice
president of ECT and, prior to the sale , vice president of
E & OV, the companies were separate , each had its own
financial statement and each had its "own revenue and
costs."
3. E & OV' s collective - bargaining history
For many years before the sale of E & OV to
Respondents, E & OV's drivers were represented by the
Union and covered by labor agreement. Before E & OV
was sold to Dayton & Western Motors, Inc, in 1961,
these labor agreements covered both drivers and garage
employees, but when E & OV's buses were moved to
ECT's garage after the sale and E & OV's two
maintenance employees quit, the Union's agreements with
E & OV stopped including garage personnel. For many
years there have been separate contracts with the Union
for E & OV employees and ECT employees. The ECT
agreements have always included garage employees in
their coverage, but, as stated, E & OV agreements have
not since ECT personnel began to service E & OV buses
in 1961.
In bargaining for separate agreements covering the
employees of both companies the practice was to
negotiate ECT terms first because it was the larger, and
then to resolve E & OV issues, which, as time went by,
meant for the most part coming to agreement on wages
because the two agreements had many common
provisions. After Dayton & Western Motors bought E &
OV, Clayton handled both E & OV and ECT bargaining.
He confirmed the fact that negotiations were consecutive
and that when final agreements were reached the contracts
were printed in separate documents. It also appears that
although the union committees in each set of negotiations
were composed of many of the same individuals, the
committee in the E & OV meetings was not as large as
the other and it contained a representative from the E &
OV drivers. Although historically the agreements were
printed in separate booklets, after the 1966 agreements
were settled someone suggested that both contracts appear
in one document. This was for "convenience," according
to Clayton and a representative of the Union
The 1966 contracts were due to expire on October 4,
1967, and negotiations for new agreements began in
August. As was customary, the parties attempted to come
to agreement on the terms of the ECT contract first, and
11 bargaining sessions were held. On or about November
16 the parties reached an impasse and agreed to submit
certain matters to arbitration. Pending arbitration and a
resolution of the contract issues with ECT it was agreed
that the E & OV provisions of the existing agreement
should be extended for 90 days. The ECT contract dispute
was finally resolved and agreement reached on December
7, 1967, and on February 6, 1968, the Union and Clayton
met to discuss E & OV, but Clayton advised the union
committee that a sale to McCleary Coach Lines was
imminent . Clayton offered to pay E & OV's four drivers
severance pay and an opportunity to transfer to McCleary
or to ECT. A final meeting was held between Clayton and
the Union on March 19 at which Clayton disclosed that
the Will brothers re buying the E & OV lines. Clayton
again offered to pay severance pay and to permit a lateral
transfer to ECT for the four drivers, but the Union
insisted that Clayton should continue contract negotiations
because the sale to Will was not complete . Clayton told
the Union that it would have to look to the Will brothers
for a contract. Subsequently , the E & OV drivers were
given severance pay and accrued vacation benefits by the
seller, and, as will appear below, three drivers took jobs
with the purchaser and one, Williamson , elected to
transfer to ECT as a driver at the bottom of the seniority
list.
4. The sale and Respondents ' operations thereafter
Although the sales agreement is dated April 10, 1968,
Respondents took possession and began to manage and
operate the lines on March 7 by virtue of an oral
agreement between the parties made in February 1968.
On March 7 the seller paid off all its employees for work
performed to that date. The seller owned approximately
15 buses but only 7 were included in the sale. These were
transferred to Will Coach Lines, Inc.'s garage on March
7.
When Respondents started to operate E & OV on
March 7, Williamson, one of the four regular drivers of E
& OV transferred to ECT as a driver, but Lamb, Mabrey
and Chenault transferred to Respondents and continued to
operate their old runs without interruption Respondents
immediately hired a replacement by the name of Tucker
for Williamson, and he drove Williamson's old route. It
appears from Martin Will's testimony that although
Lamb, Mabrey, Chenault and Tucker were put on the E
& OV payroll after the sale, where they remained for
some time, they all are now on Will Coach Lines, Inc.'s
payroll.
The buses acquired by Respondents in the sale are
being serviced and maintained in Will Coach Lines, Inc.'s
garage, which is a few miles away from the ECT garage
where they were formerly located. Lamb, one of the
transferred drivers, testified that at the time of the sale
only one other regular employee beside himself and the
other drivers worked in or out of Will Coach Lines, Inc.'s
garage. This was Joe Wolf, who drove buses, worked in
the garage as a mechanic, and also swept out and fueled
buses. Martin Will's testimony is basically in accord with
Lamb's. He stated that he does most of the bus
maintenance work himself, but contracts out jobs he
cannot hapdle. He insisted that Wolf was not a mechanic
but a driver, but he agreed that he helped out in the
garage at times.
It is clear that Respondents continued to use some of
the equipment purchased on the same routes which the
sellers formerly serviced The bus which Chenault drove
was not sold to Respondents, but Lamb testified credibly
and without contradiction that on September 6, his last
day of employment with Respondents, he was operating
the same bus on the same run that he always had. He said
that he, Mabrey and Chenault continued to drive their old
routes, on the same schedules, and used the same tickets
WILL COACH LINES, INC.
used by sellers. At least two of the buses, his and
Mabrey's, were the old buses, and they carried the legend
"E & OV" bus lines.
It appears from Martin Will's testimony that all Will
Coach Lines, Inc.'s drivers are paid the same rate and are
covered by the same insurance program All employees, of
course, work out of Will Coach Lines, Inc.'s garage, but it
is evident that the school bus drivers do not work the
same hours and obviously do not do the same kind of
work as the drivers of the public carriers. Also, contrary
to any suggestion is Martin Will's testimony, there is an
insignificant amount of integration of interchange in
assignments among the men who drive the routes acquired
by Respondents and the other drivers. This is evident from
records in evidence which cover a 2-month period
beginning on March 1, 1968, before Respondents started
to operate E & OV
To repeat, in early March 1968, E & OV had four
regular drivers operating E & OV's certificated regular
routes. According to Clayton and Clark, and there can be
no question about this, the four names which regularly
appear first on E & OV's payroll for that period were the
four men who drove the runs' In addition, Milfred Jones
and Owen Roberts occasionally appear on E & OV's
payroll in early March, but according to Clark, they were
employees of Evansville City Transit who worked
occasionally for E & OV on charter work or extra
assignments The daily worksheets in evidence for the
period March I through 6, which reflect the names of the
drivers of E & OV bus routes and the destination of E &
OV charter runs operated, were compiled before
Respondents took over the operation of E & OV. The
daily worksheets for the period March 7 through April 30,
1968, were compiled by Respondents after it took over
operation of E & OV These worksheets show the names
of the drivers of the E & OV bus routes, the names of the
drivers of Will Coach Lines, Inc.'s regular Evansville to
Mount Vernon, Indiana run, and the destination of all the
charter runs of Will Coach Lines, Inc., and Andrew P.
Will, as well as E & OV interstate charter business
acquired as a result of the sale, but without identifying the
company source of the run.
An analysis of these records show that, with rare
exceptions, Lamb, Mabrey, Chenault and Williamson
drove E & OV's regular runs before the takeover, and
Lamb, Mabrey, Chenault and Tucker (Williamson's
replacement) continued to man the same four runs after
the Respondents began to operate the lines 8
Respondents' Evansville to Mount Vernon, Indiana,
route continued to operate after the takeover, but none of
the three drivers who had worked for E & OV before the
sale worked on that route and neither did Tucker who was
hired to replace Williamson. The worksheets in evidence
disclose that Brooks appears to have become the regular
driver on the Mount Vernon run in April 1968, with
Jerome Will working part of the run on occasion
With respect to the interstate charter business acquired
by Respondents as a result of the sale, there is no
evidence that the drivers who handle the regular routes
acquired drive any of it, and Martin Will testified that
'See G C Exh 3(gg)
'In March, Mabrey did not drive his run on 4 days, and Chenault missed
part of a run On these occasions , Torrence substituted once, Jerome Will
twice, and Ratcliffe once in April, Lamb, Tucker and Chenault drove
their runs every day, and Mabrey missed only 3 days when Jerome Will
drove in his place Ratcliffe was a policeman who worked only part time
for Respondents , and Torrence was casual and irregular He appears to
have been disappeared from Respondents' payrolls in April
521
during the period after the sale these runs were operated
for the most part by either his brothers Jerome and
Francis, or himself.
5. The Union requests Respondents to bargain
collectively and Respondents refuse
All of E & OV's drivers were members in good
standing in the Union in March 1968 According to the
credited testimony of Louis Neisen, president of the
Union, and Hugh Jennings, its financial and recording
secretary, on or about March 10, and in any case, soon
after the purchaser began to operate E & OV lines,
Neisen met Martin and Jerome Will and asked them to
begin negotiating an agreement covering the E & OV
drivers. Nelsen testified that Martin Will commented that
he had no objections to unions as such, but he did not
know why the men wanted a union since they were getting
paid more than the union scale, and he added that if he
did negotiate an agreement with the Union he would
reduce the men's wages to the union rate At this meeting,
Martin Will also told Neisen that he did not want him to
"bother" his father's drivers, but Nelsen told him that the
Union was not interested in any drivers other than the E
& OV men.
A few days later, Neisen saw Martin Will again. This
time Will indicated that he believed that the E & OV
drivers did not desire union representation, but Neisen
disagreed. Will stated that he would take a vote among
the men on the question, and "if they want it, why, then
we'll talk to you."
Neisen saw Martin Will alone on or about March 15.
During this visit to Respondents' garage Will reported to
Neisen that he had taken a vote of the drivers, and "they
wanted a union." Since they did, he suggested that Neisen
prepare contract proposals for his inspection. That
evening, Neisen and Jennings prepared a set of proposals
and, on the next day, they and other members of the
union committee presented them to Martin Will. This
time Will told the union representatives that they would
have to negotiate with his lawyer, but added that since the
sale was not yet complete, they should wait about 20 days.
After 20 days the sale was final, and Neisen and others
from the Union read about it in the local press On or
about April 10, they sought an audience with Martin Will
to press for contract negotiations. Will asked who the
Union represented, and he was told that it represented the
employees of "E & OV." Will replied that E & OV had
but two employees, himself and his brother. Will refused
to discuss the matter further.
Driver Elvis Lamb was urged to stay with E & OV by
Martin and Jerome Will, and he corroborated Neisen's
testimony that Martin Will held a vote among the drivers
to determine whether they wanted to have the Union
represent them. According to Lamb, and I credit his
testimony, in early March, the Will brothers told him
about the benefits he would receive if he stayed with them.
Soon after he started to work for the purchaser, Martin
Will handed him a slip of paper with the printed question
"We the undersigned favor the union ," with boxes for a
"Yes" or "No" answer. The ballot was not secret, for
Lamb signed it and gave it back to Will. Lamb also
testified that Will told him later he did not want the
Union because it would "break" him, and added that if he
did negotiate with the Union, he would reduce wages to
the union scale of $2.35 per hour.'
'As indicated , I have accepted Neisen's, Jennings ' and Lamb ' s testimony
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C Analysis, Additional Findings, And Conclusions
1. Successorship
The Union represented and bargained collectively for E
& OV's drivers for many years before that company was
sold to Respondents. Respondents refused to bargain with
the Union when it took over E & OV's operations, and it
justifies its refusal on various considerations connected
with the transfer and change of ownership. It has long
been established, however, that a change in ownership in
an enterprise does not automatically extinguish the rights
of employees or their representatives and absolve the new
owner from any duty to recognize the union which
represented his predecessor's employees or to comply with
any of the terms of a labor contract which covered those
employees. Since it is the "employing industry" which the
Act seeks to regulate,'° the predecessor's obligations may
devolve on the successor in certain circumstances. Critical
questions in determining the extent of the new employer's
obligations are whether there has been a "substantial
continuity of identity in the business enterprise" or "the
enterprise remains essentially the same," after the change
in ownership." The basic question had also been described
as "whether respondent continued essentially the same
operation, with substantially the same employee unit
In attempting to answer these critical questions and
determine whether a new employer is a "successor
employer" obligated to bargain with the Union which
represented his predecessor's employees, the Board and
the courts consider many factors. What combination of
factors is controlling is not always easy to determine, but
prime considerations are the continuation of the business
without substantial interruption, in such a form as to
make the bargaining unit readily discernible, with some or
all of the former employees employed at their old jobs."
I have found that Respondents hired three of E & OV's
four drivers and immediately assigned them and the
replacement for the fourth to the same routes that the
original four had driven. Respondents continued to
operate many of the E & OV buses which it obtained in
the sale, and in most cases the drivers who stayed with the
purchaser drove the same vehicles they had driven before
with the same identifying "E & OV" legend on the bus.
At first glance at least, it would appear that Respondents
took over an identifiable transportation unit and continued
to operate it in essentially the same form as before, but
Respondents point to certain considerations or factors
which they claim ought to result in a determination that
the purchaser is not a successor
as accurate , and where Martin Will disagrees with them, I discredit him
First of all, Neisen ' s, Jennings' and Lamb's testimony is mutually
corroborative in certain particulars and was persuasive in each case on its
own Second , Martin Will's affidavit given during the course of the
investigation confirms Neisen 's and Jennings ' statements that they asked
for recognition for E & OV drivers only, not for all drivers as Martin Will
suggested , and also confirms Neisen's testimony that Will told him that he
took a vote among the E & OV men which showed that they desired a
union
"N L R B v Cotten , d/b/a Kiddie Kover Mfg, Co, 105 F 2d 179, 183
(C A 6)
"John Wiley & Sons, Inc v Livingston , 376 U.S. 543, Cruse Motors.
Inc, 105 NLRB 242, 247
"Maintenance , Incorporated . 148 NLRB 1299, 1301 , Glenn Goulding.
d/b/a Fed-Mart , 165 NLRB No 22
"Overnice Transportation Company v N L R B , 372 F 2d 765 (C A 4),
Randolph Rubber Company , Inc, 152 NLRB 496, Firchau Logging
Company, Inc, 126 NLRB 1215, 1221
Respondents' basic position is that they are not a
successor under the cases and that the unit formerly
bargained for by the Union is no longer appropriate, if it
ever were. The successor and the unit questions are
interrelated and intertwined in my opinion and can be
handled together."°
First of all, but not in the order in which they are
ranked by Respondents, it is argued that Evansville City
Transit and E & OV constituted a single employer, and so
a separate unit of E & OV drivers was never appropriate.
Even if it be assumed E & OV and Evansville City
Transit were a "single employer" for some purposes it
would not necessarily mean that all their drivers
constituted a single unit for bargaining or that a different
unit would be legally inappropriate. Before E & OV was
purchased by Dayton & Western Motors, inc., the Union
had contracts covering its drivers and garage employees.
After the sale the Union continued to represent the
drivers, and when the garage employees quit and
Evansville City Transit employees began to perform the
maintenance work formerly performed by E & OV
mechanics as part of the unit work, numerous contracts
were negotiated covering the dnvers of E & OV only.
These contracts were negotiated separately from the
Evansville City Transit agreements, and although the
contracts had many clauses in common there were
separate seniority provisions, and wages remained an issue
with E & OV even after the Evansville City Transit
agreements were completed. Drivers were the only
employees E & OV had except for the office and
managerial staff, and they were a cohesive, readily
identifiable group with common interests. I find on the
basis of the whole record, particularly the bargaining
history and the job classifications involved, that E & OV's
drivers who manned E & OV's certificated routes
constituted an appropriate unit within the meaning of the
Act.
In regard to the successorship issue as such, that is to
say considering it apart from the alleged inappropriateness
of the unit alleged in the complaint, certain other factors
relied on by Respondents in support of its contention that
it is not a successor are either irrelevant or not
controlling It is irrelevant, for example, that Respondents
purchased only the stock and a part of a company that
was owned by Evansville City Transit Company, which
was owned by a larger enterprise.15 It is also irrelevant
that the sale of E & OV's stock to Respondents was an
arms length transaction and that Respondents assumed no
liabilities of E & OV." In this type of case whether
Respondents are alter egos or a disguised continuance of
the sellers is unimportant," and Wiley tells us that the
principles of law governing ordinary contracts do not
govern these situations."
"A radical change in the bargaining unit would certainly be a factor to
consider before affixing the label "successor" in a refusal to bargain case,
but it is easy to conceive of cases where an employer might be a
"successor," regardless of what happened to the old bargaining unit, for
the purpose of arbitration under the old contract or for the purpose of
remedying unfair labor practices See Wiley, supra, Perma Vinyl
Corporation , 164 NLRB No 119
"McGuire v Humble Oil & Refining Company, 355 F 2d 352 (C A 2),
Johnson Ready Mix Co. 142 NLRB 437; Royal Brand Cutlery Company.
122 NLRB 901
"Cruse Motors, Inc, 105 NLRB 242, Johnson Ready Mix Co, supra,
Maintenance Incorporated , 148 NLRB 1299
"See Southport Petroleum Co v N L R B. 315 U S 100, 106,
N L R B v Herman Brothers Pet Supply, Inc , 325 F 2d 68 (C A 6)
"Wiley, supra at 550.
WILL COACH LINES, INC. 523
Respondents also note that it moved the buses it
purchased to its own garage some miles away from where
they had been garaged and that it took over none of the
supervisory personnel of E & OV. Retention of
supervisory personnel and location of operations after the
sale are undoubtedly considerations which ought to be
weighed, but in my opinion, compared with the other
factors which have been noted, such as the uninterrupted
continuation of bus service with the same men on
essentially the same basis as before, they appear
insignificant."
The fact that the seller discussed or negotiated with the
Union the effect of the sale on the drivers and paid them
severance pay, vacation benefits and offered them
transfers to Evansville City Transit, Inc. can have no
bearing, it seems to me, on the question of whether the
purchaser is the kind of successor that is obligated to
bargain with the Union about its employees' present and
future wages, hours and working conditions. I find
nothing in the arrangements for the men that the sellers
made with the Union after it decided to go out of business
which on its own could extinguish a successor's obligations
to recognize the representative of its own employees.
Respondents' contention that the purchase of E & OV
was merely an addition to Respondents' business and that
it did not succeed to E & OV's bargaining unit which in
effect was merged with a unit of all of Respondents'
drivers, is the most troublesome issue in the case.20 As
originally issued, General Counsel's complaint in this case
alleged in paragraph 6(a) that "All bus operators and bus
garage employees of Respondents, employed servicing
Respondents' routes set forth in paragraph 2(b) ..." with
the usual and appropriate exclusions, constitute an
appropriate unit for bargaining. Paragraph 2(b) of the
complaint included as one of Respondents' routes a route
from Evansville, Indiana, to Mount Vernon, Indiana. At
the hearing, General Counsel amended the complaint by
eliminating "bus garage employees" from the
classifications of unit employees and the Evansville to
Mount Vernon, Indiana, route as one of the routes
serviced by employees to be included in the unit.
Before Respondents purchased the stock of E & OV
they had 10 full-time and about 8 part-time drivers
working in their various operations. Recalling that Will
Coach Lines, Inc was operating Andrew Will' s Indiana
certificates of public convenience and necessity for the
purpose of transporting children to and from school, it
would appear that these full and part-time drivers were
performing that work for the most part. Will Coach
Lines, Inc. also performed intrastate charter work before
the sale, and after the sale it operated E & OV's
certificates and continued some at least of E & OV's
interstate charter work. After the sale, all drivers worked
out of the same terminal, used the same maintenance
facilities and were supervised by the same persons. It also
appears that they received the same hourly rate and
insurance protection. It should also be noted that E & OV
at one time owned and operated a fourth route, namely
the Evansville to Mount Vernon route, but this certificate
and route was abandoned about 6 months before it was
"Maintenance , Incorporated. supra, Firchau Logging Company, supra
'"As indicated , bargaining unit and successorship issues are necessarily
intertwined , but separated here for convenience and hoped for clarity In
this connection it might be noted that Respondents ' approach to the unit
problem is that it not only relates to the "successorship " question but that
General Counsel did not carry his burden of proving by a preponderance of
the evidence that the unit alleged in the complaint is an appropriate unit
for bargaining
sold to Respondents Obviously the Evansville to Mount
Vernon route was an integral part of E & OV's operations
of a character no different from its other routes. The
driver or drivers who serviced it, therefore, were part of
the appropriate unit as it existed at that time. It appears
that Respondents have been operating a run from
Evansville to Mount Vernon for some time under a
certificate from the Indiana Public Service Commission
on a regular schedule This run is manned by a Will
Coach Lines, Inc. driver working out of the same garage,
under the same supervision, having the same working
conditions, using similar or the same equipment as the E
& OV drivers acquired in the sale. Evansville to Mount
Vernon is located in the same geographical area as the
other E & OV runs involved in this case which are alleged
as the foundation for the appropriate unit. On the basis of
these factors, I can see no reason on this record how the
driver who mans the Evansville to Mount Vernon run can
be eliminated from the appropriate unit and I find, as the
complaint first alleged, that all bus operators servicing
that run are part of the appropriate unit.Z'
Although Respondents' drivers other than those who
regularly drive the three routes acquired as part of the
sale and the fourth route, which I have found should be a
part of any unit found appropriate, work out of the same
garage, get the same hourly rate, have their equipment
serviced by the same people and are supervised by the
same persons who supervise the route drivers, these
factors, in my opinion, do not of themselves destroy the
appropriateness of a unit of drivers servicing the public
generally in a different area. First of all, the work of
school bus drivers is clearly of a different nature than that
of the route drivers, and their hours of work cannot be the
same. It also appears on the basis of records in evidence,
contrary to Respondents suggestions in Martin Will's
testimony and Respondents' brief, that there is an
insignificant amount of interchange of equipment or
employees between the school runs and the public runs. I
have found earlier that for a 2-month period bridging the
sale Lamb, Mabrey, Chenault and Tucker, the
replacement for Williamson, almost without exception,
serviced the same runs that the three men who stayed on
and Williamson did before the sale. There is absolutely no
evidence that any of them ever took school runs and no
evidence of any substance that any school bus driver ever
drove their runs. It also appears that the
Evansville-Mount Vernon run is normally serviced by the
same man and no evidence that it is ever manned by a
school bus driver. I have found that the group of men
servicing the routes purchased were a cohesive,
identifiable, homogeneous grouping of classifications
which could constitute an appropriate unit. I have also
found that their work is similar to the driver of
Respondents' Evansville to Mount Vernon route, which
exists in the same geographical area as the routes
acquired, and that this portion of Respondents' operations
should not be separated from its other certificated routes.
In the light of these findings and the history of collective
bargaining, and based on the dissimilarities in occupations
and working conditions and lack of functional integration,
I find that the route drivers have not been merged with
Respondents' other employees to such an extent as to
destroy the appropriateness of a unit of route drivers.
A word about charter drivers and employees in
Respondents' garage. The record showed the E & OV's
route drivers before the sale rarely took a charter run.
"Safeway Trails, Inc, 120 NLRB 79
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These were normally handled by ECT drivers. There is no
evidence that this custom changed after the sale, and
Martin Will testified that he and his brothers handled
most of the charter business He and his brothers are
supervisors and management and could not be part of any
appropriate unit With respect to garage employees, the
complaint as first issued included them as part of an
alleged appropriate unit. The Union represented garage
employees of E & OV for some time before it was sold to
Dayton and Western Motors, Inc. in 1961 Thereafter
ECT began to service E & OV's buses and since E & OV
no longer had any maintenance personnel the E & OV
labor agreements no longer covered them. A unit of
drivers and garage personnel is not unusual and it could
be appropriate, particularly in the light of the bargaining
history, if there were any eligible garage personnel
working for Respondents after they purchased E & OV.
Employee Lamb testified, however, that when he went to
work for Respondents after E & OV was sold, the only
person he saw in the garage was Joe Wolfe who did some
maintenance work, but also drove a bus. Martin Will in
his testimony insisted that Wolfe was primarily a driver.
To confirm this it appears that at or around the time of
the sale Wolfe was driving the Evansville-Mount Vernon
run. Martin Will also testified that he and his brother do
most of the maintenance on the equipment and that he
contracts out any work that is too big or difficult to
handle. It appears, therefore, that there are no employees
in the garage to consider as part of an appropriate unit or
on the question of integration of operations.22
2. The appropriate unit, the demand and the refusal
to bargain
Although the issue is not free from doubt, I find on the
basis of the considerations discussed and found above that
all bus operators of Respondents employed servicing the
following routes (1) Evansville, Indiana, to Henderson,
Kentucky, (2) Evansville, Indiana, to Owensboro,
Kentucky; (3) Cannelton , Indiana, to Indiana Highway 66
and United States Highway 231, at Rockport (Reo),
Indiana, and (4) Evansville, Indiana, to Mount Vernon,
Indiana, excluding supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
I have found that on April 11, 1968, the day after the
sale of E & OV to Respondents was complete, the Union,
as it had on or about March 10, 13 and 15, requested
Respondents to bargain collectively with it as the
representative of the drivers who manned the former E &
OV routes. I have found that Respondents' Evansville to
Mount Vernon, Indiana routes is an integral part of its
public, scheduled transportation operations and that the
driver on that route should be included in the unit.
Although the unit found is somewhat larger than the unit
alleged and sought to be bargained for, I find this
variance to be minor and not fatal to the effectiveness of
the Union' s demand .' Although Martin Will informed the
Union on March 15 that he had taken a vote which
revealed that the drivers wanted to be represented by the
Union24 and asked the Union to prepare contract
"Each case of "successorship" stands on its own facts , but as indicated
earlier , certain considerations are more important than others I find
Northwest Galvanizing Co, 168 NLRB No 6 and Thomas Cadillac, Inc,
170 NLRB 92, relied on by Respondents , distinguishable In one, the
Board noted the "unique" facts involved, and in the other, two separate
purchasers began separate businesses with only a small fraction of the
predecessor 's employees
proposals for his consideration, on April 11 Respondents
withdrew whatever recognition they had granted the
Union and have refused ever since to recognize it as the
statutory representative of any of their employees.
The Union represented all of E & OV's drivers before
the sale, and since Respondent succeeded to E & OV, the
presumption of the incumbent union's majority status
continued and Respondents inherited the obligation to
bargain with the Union unless it questioned its majority in
good faith Three of the four E & OV drivers were hired
by Respondents. Respondents took a poll of its E & OV
drivers and told the Union that the men wanted to be
represented by the Union. The inclusion of one driver
from the Evansville-Mount Vernon route would make a
total of five drivers in the unit of which the Union clearly
represented three because of their membership in the
Union at the time of the sale, and it may have represented
Tucker, Williamson's replacement, if Will polled him as
he said. If Will also polled Wolfe who drove the
Evansville-Mount Vernon run at that time, then the Union
represented him too, but in any case, by April 15 the
Union had secured an application for membership from
Thomas Brooks who had begun to drive the
Evansville-Mount Vernon run regularly in April 1968. The
Union, therefore, at all material times represented a
minimum of three in a maximum sized unit of five and
had a clear majority of four in a unit of five by April 15.
Respondents never questioned the unit as a reason for
refusing the Union's request to bargain and, after Martin
Will polled the drivers on the union issue, Respondents
never claimed that the Union did not represent the
drivers. Indeed, on the basis of the poll taken by
Respondents, and in the light of the recognition - limited
as it was - given the Union when it was told to get its
proposals for a contract ready, Respondents acted as if
they knew that the Union represented the drivers I find
that Respondents have never questioned the Union's
majority status in good faith or rebutted the presumption
of the Union's continued majority status. I find and
conclude that by refusing to bargain with the Union on
April 11 and continuing thereafter, Respondents violated
Section 8(a)(1) and (5) of the Act 25
3 Alleged independent violations of Section 8(a)(1) of
the Act
Elvis Lamb testified that , in attempting to recruit him
for employment, Respondents told him what wage and
other benefits he would receive as an employee. This is
alleged as a promise of benefit on condition that Lamb
and other E & OV drivers refrain from remaining
"Ftrchau Logging Company, 126 NLRB 1215, 1221, Hamilton Plastic
Molding Co, 135 NLRB 37
"Martin Will denied that he took a poll of E & OV drivers only,
suggesting that he voted others too This is contrary to the affidavit he
gave the Board in which he named Mabrey, Chenault, Lamb and Tucker
(Williamson' s replacement ) as the persons he voted In addition, at the
hearing he could remember only that "One guy might be Joe Wolfe, Irvin
Wolfe" as others who he polled Joe Wolfe was the dnver on the
Evansville-Mount Vernon run at that time, and I have found that to be
part of the unit In any case , I do not credit Will's testimony in this
respect
"The complaint alleges that Respondents refused to bargain on March
10, 14 and 17, and these are the three meetings which I have found that
the Union did have with Martin Will where he first questioned the men's
desires in the union area, then asked the Union to submit proposals, but to
wait until the sale was complete for further discussion I find it
unnecessary to decide whether this conduct was an additional violation of
Section 8(a)(5)
WILL COACH LINES, INC.
members of the Union. There is no evidence that Martin
and Jerome Will's discussions with employees about
conditions of employment at Respondents were so
conditioned. I find that Respondents did not violate the
Act in this respect as alleged in the complaint.
I have found that Respondents did conduct a poll
among the drivers on the question of whether they wanted
to be represented by the Union. After the results were
known, Respondents nevertheless refused to continue to
recognize the Union. Moreover, the poll was not by secret
ballot. In these circumstances Respondents violated
Section 8(a)(1) of the Act by coercively interrogating their
employees about their union desires and sentiments."
In attempting to recruit the seller's drivers for
employment with it, Respondents offered them the same
conditions its other drivers employed including a rate of
$2 50 an hour. Lamb was hired at that rate after
conversations with two of the Will brothers. He testified
that some time in March after he went to work for
Respondents Martin Will told him that if he negotiated
with the Union wages would "be cut back to $2 35 an
hour, the union scale" It is a fact that the drivers had
been paid $2.35 under the Union's agreement with E &
OV. Will's remark was a clear threat of reprisal if the
men selected the Union and not a mere prediction of what
might be the result of good faith collective bargaining. By
such threat, Respondents violated Section 8(a)(1) of the
Act Z'
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III,
above, which have been found to constitute unfair labor
practices, occurring in connection with the operations of
Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents engaged in
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, it will be recommended that the
Respondents cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Since it has been found that Respondents refused to
bargain with the Union as the exclusive representative of
the employees in the appropriate unit described herein, it
will, therefore , be recommended that Respondents be
ordered to bargain collectively , upon request , with the
Union as the exclusive representative of the employees in
the appropriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
"Struksnes Construction Co , Inc , 165 NLRB No 102
"Even a threat to bargain from scratch, which this was not, has been
held coercive and in violation of the Act Surprenant Manufacturing
Company v NLRB , 341 F 2d 756, 761 (C A 6), NLRB v Marsh
Supermarkets , Inc , 321 F 2d 109, 111 (C A 7)
CONCLUSIONS OF LAW
525
I The Respondents are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act
3. All bus operators of Respondents, excluding
supervisors, employed on Respondents' following routes,
(1) Evansville, Indiana, to Henderson, Kentucky, (2)
Evansville, Indiana, to Owensboro, Kentucky; (3)
Cannelton, Indiana, to Indiana Highway 66 and United
States Highway 231, at Rockport (Reo), Indiana, and (4)
Evansville, Indiana, to Mount Vernon, Indiana, constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since on or about March 7, 1968, when
Respondents began operating the routes acquired from E
& OV, the Union has been the exclusive representative of
all the employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing to bargain with the Union, as found
above, on April 11, 1968, and thereafter, Respondents
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
6 By engaging in the conduct described in section III,
C, 3, above which has been found to be improper,
Respondents violated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondents, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the exclusive
representative of its employees in the appropriate unit
found herein.
(b) Coercively interrogating their employees about their
union membership or desires
(c) Threatening employees with economic losses if they
become or remain members of the Union.
(d) In any other like or related manner, interfering
with, restraining, or coercing its employees in the exercise
of their rights to self-organization; to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing; to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection; or to refrain
from any and all such activities
2. Take the following affirmative action:
(a) Bargain with the Union, upon request, as the
exclusive representative of the employees in the
appropriate unit found herein with respect to wages,
hours, and other conditions of employment, and if an
understanding is reached embody such understanding in a
signed agreement.
(b) Post at its Evansville, Indiana, garage copies of the
attached notice marked "Appendix."" Copies of said
"In the event that this Recommended Order be adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice In the further event
that the Board 's Order be enforced by a decree of a United States Court
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondents or its
representatives, shall be posted by Respondents
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Decision and
Recommended Order, what steps Respondents have taken
to comply herewith."
of Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read " Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT refuse to recognize and bargain
collectively with Amalgamated Transit Union, Local
Division 878, AFL-CIO, as the exclusive bargaining
representative of the employees in the following
appropriate unit:
All bus operators employed servicing our following
routes: (1) Evansville, Indiana, to Henderson,
Kentucky; (2) Evansville, Indiana, to Owensboro,
Kentucky; (3) Cannelton, Indiana, to Indiana
Highway 66 and United States Highway 231, at
Rockport (Reo), Indiana; and (4) Evansville, Indiana,
to Mount Vernon, Indiana.
WE WILL NOT interrogate our employees about their
union membership or desires.
WE WILL NOT threaten employees with loss of
benefits if they join or remain members of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce the employees in the exercise
of their right to self-organization, to form, join or assist
unions, to bargain collectively through representatives
of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from such
activities, except to the extent that such right may be
affected by an agreement requiring union membership
as a condition of employment, as authorized in Section
8(a)(3) of the National Labor Relations Act, as
amended by the Labor- Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with
Amalgamated Transit Union, Local Division 878,
AFL-CIO, as the exclusive bargaining representative of
all employees in the appropriate unit as found above,
and, if an understanding is reached, embody such
understanding in a signed agreement.
Dated By
WILL COACH LINES, INC.
ANDREW P. WILL, SOLE
PROPRIETOR EVANSVILLE
AND OHIO VALLEY
RAILWAY COMPANY, INC
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board 's Regional Office, 614 ISTA
Center 150 West Market Street , Indianapolis , Indiana
46204, Telephone 317-633-8921.