Hill Bus Co., Inc.

National Labor Relations Board - Board Decisions

May 3, 1937

2 N.L.R.B. 781 (N.L.R.B. 1937)

In the Matter Of HILL Bus COMPANY, INC. and BROTHERHOOD OF
RAILROAD TRAINMEN, ROCKLAND LODGE No. 329, SPRING VALLEY,
NEW YORK
Case No. C-141.Decided May 3, 1937
Motor Bus Industry-Interference , Restraint or Coercion : expressed opposi-
tion to labor organization, threats of retaliatory action; discrediting union;
questioning employees regarding union affiliation and activity-Company-Domi-
nated Union : initiation and sponsorship ; domination and interference with
formation and administration ; check-off agreement with ; closed shop agreement
with ; discrimination in favor of in employment ; coercion to join; soliciting
and encouraging membership in; disestablished as agency for collective bar-
gaining-Discrimination : discharges pursuant to closed shop agreement with
company-dominated union ; for union membership and activity-Reinstatement
Ordered-Back Pay: awarded.
Mr. David A. Moscovitz for the Board.
Messano & Messano, of Jersey City, N. J., for respondent.
Isserman d Isserman, by Mr. Sol D. Kopelsohn and Mr. Abe Isser-
man, of Newark, N. J., for the Brotherhood.
Mr. Wallace B. Berkowitz and Mr. James J. Harkins, of Jersey
City, N. J., for Hudson Bus Transportation Drivers' Association.
Mr. Aaron W. Warner, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by Brotherhood of Railroad Trainmen.
Rockland Lodge No. 329, hereinafter referred to as the Brotherhood,
the National Labor Relations Board, by John D. Moore, Acting Re-
gional Director for the Second Region (New York, New York) issued
its complaint, dated October 6, 1936, against Hill Bus Company, Inc.,
Westwood, New Jersey, hereinafter referred to as the respondent.
The complaint, as amended, alleged that the respondent had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8, subdivisions (1), (2), and (3) and Section 2, subdivisions
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, here-
inafter called the Act. The complaint and notice of hearing thereon
were duly served upon the respondent and the Brotherhood.
The allegations of the complaint, as amended, are as follows :
1. That the respondent, a New Jersey corporation, owns and
operates a motor bus transportation system and is engaged in com-
merce among the several States;
781
782 NATIONAL LABOR RELATIONS BOARD
2. That the respondent, during the period from August 19 to
August 25, 1936, discharged and thereafter refused to reinstate
Chester Thomas, Hugo Weisslader, Ralph Suter, Charles Hollings-
worth, Arthur LeStrange,1 John O'Boyle, Archie Dunn, Henry
Holzenthaler, Harry Rever,2 Howard Matthews, Hewitt Dunn,
Frank Harrison, Leroy Sassenscheid, James Lynch, Arthur Riha,
Herbert Kimber, Mervyn Brown, and Gilbert Grace, all employees
of the respondent, because they joined and assisted the Brotherhood
of Railroad Trainmen, Rockland Lodge No. 329, a labor organiza-
tion, and engaged in concerted activities with other employees for
the purpose of collective bargaining and other mutual aid and
protection.
3. That the respondent has dominated and interfered with the
formation and administration of, and has contributed support to,
a labor organization of its employees known as the Hudson Bus
Transportation Drivers' Association, hereinafter referred to as the
Association.
4. That the respondent, by such acts, has interfered with,
restrained, and coerced its employees in the exercise, of the rights
guaranteed in Section 7 of the Act.
On October 22 and October 30, 1936, the respondent filed answers
to the complaint and to the amended complaint, respectively. It
admitted the allegations of the complaint with reference to its busi-
ness, and admitted the discharge of the employees named in the
complaint. It averred, however, that it discharged Chester Thomas,
Hugo Weisslader, Ralph Suter, and Charles Hollingsworth because
they had violated the respondent's rules, and the remainder because
of their failure to retain their membership in the Hudson Bus
Transportation Drivers' Association. It alleged that it was bound
by an agreement with the Association to employ only regular mem-
bers of the Association, and that it was precluded from reinstating
the discharged employees by reason of an order of the Court of
Chancery of New Jersey restraining the respondent "from taking
any action whatsoever effecting. injury, or^ destroying the rights of
the . . . Association". It denied the allegations in the complaint
in respect to the illegal relations between the respondent and the.
Association. Finally, it challenged the constitutionality of the Act
and moved that the complaint be dismissed.
Pursuant to notice, a hearing was held in New York City from
October 26 to November 19, 1936, before Walter Wilbur, the Trial
1 The name of Arthur LeStrange was stricken from the complaint at the heating.
2 This name appears in the transcript of the testimony as Harry Reaver . However, In
the proceedings between these employees and the respondent in the courts of New Jersey
this name is spelled as it appears in the Board's complaint, and this spelling will be
retained throughout the decision.
DECISIONS AND ORDERS 783
Examiner duly designated by the Board. All parties were repre-
sented by counsel and participated in the hearing , and were afforded
full opportunity to be heard , to examine and cross -examine wit-
nesses, and to produce evidence bearing on the issues.
At the commencement of the hearing, the respondent contended
that the Board was without Jurisdiction because of a prior proceed-
ing between the saine parties, pending in the Court of Chancery of
New Jersey . This contention was overruled by the Trial Examiner.
Exceptions were made by the respondent to this and other rulings of
the Trial Examiner during the course of the hearing . The Board
finds no prejudicial error in any of the Trial Examiner 's rulings at
the hearing and they are hereby affirmed.
On December 1, 1936, the Board, acting pursuant to Article II,
Section 37 of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , ordered the proceeding to be transferred
and continued before it.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE RESPONDENT AND ITS BUSINESS
The respondent , Hill Bus Company, Inc., is, and has been since
September 20, 1934, a New Jersey corporation having its principal
office and place of business in Westwood , New Jersey . Ernest
Capitani is the president and owner of a majority of the stock of the
respondent , and is in complete charge of its operations . Capitani is
also the president of five or six other bus lines located in New Jersey
and New York , hereinafter referred to as the Capitani lines.
The respondent operates an interstate motor bus transportation
system extending from Westwood, New Jersey, to New York City,
and transports passengers for hire between various points in New
Jersey, and between New Jersey and New York City. Its activities
are admittedly interstate in character and subject to the regulations
of the Interstate Commerce Commission . It maintains a garage in
Westwood , New Jersey , and owns and operates approximately ten
buses, employing about 20 drivers , three mechanics and two cleaners.
The persons named in the complaint are all bus drivers engaged in
the course of both the intrastate and interstate business of the
respondent.
The Board finds that the respondent is engaged in traffic, com-
merce, and transportation among the several States, and that the
drivers employed on the buses operated by the respondent are
directly engaged in such traffic , commerce, and transportation.
1
784 NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
A. The Brotherhood
The Brotherhood of Railroad Trainmen, organized on September
23, 1883, is a labor organization having approximately 900 lodges in
the United States, Canada, and Newfoundland, and a reported mem-
bership of approximately 116,274.3 Rockland Lodge No. 329 was
organized by the employees of three of the companies of which Capi-
taiii is president, Rockland Transit Co., Rockland Coaches Inc., and
Spring Valley Motor Coach Co., and has contracts with these com-
panies in respect to rates of pay, wages, hours of employment, and
other conditions of employment. On about August 16 or 17, 1936,
19 of the respondent's drivers (18 of whom are named in the com-
plaint) also became members of the organization.
B. The Association
Hudson Bus Transportation Drivers' Association is a labor organi-
zation which has been in existence approximately five years. Mem-
bership in the Association is limited to the employees of the Capitani
lines. Bernard F. Johnson ,4 who has been employed by the Hudson
Bus Transportation Company for 12 years 5 and is the president of
the Association, testified that the Association had its origin upon the
expiration of an agreement between that company and International
Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of
America, Local 461. Within a month of the termination of this
agreement, the Association was organized and entered into negotia-
tions with the Hudson Bus Transportation Company on behalf of the,
drivers in its Jersey City garage. Johnson testified further that
similar organizations sprang into being at approximately the same
time on every independent bus line in Hudson County, New Jersey.
Although these numerous organizations are not affiliated in one cen-
tral body, they nevertheless conduct joint meetings for the purpose
of discussing "each one's troubles". The matters considered at these
joint meetings include the grievances of members of the organiza-
tions toward their employers and the provisions of proposed agree-
ments between the organizations and the various bus companies in
Hudson County.
3 These figures aie obtained from the Handbook of American Trade-Unions, 1936 Edition,
Bulletin No 618, an official publication of the United States Department of Labor, Bureau
of Labor Statistics.
4 Johnson testified that his father was a supervisor of buses in Hudson County, New
Jersey, with authority to grant and revoke the licenses of bus owners and operators.
E Capitani was associated with the Hudson Bus Transportation Company during this
entire period.
I
DECISIONS AND ORDERS 785
At its inception, the membership of the Association numbered 20
drivers. Its meetings were held irregularly in the Jersey City
garage of the Hudson Bus Transportation Company. Although it
elected officers and entered into agreements with the company which
were renewed yearly, up to April, 1936, it had adopted neither a
constitution nor by-laws. In March, 1936, the employees in the
Englewood garage of the Hudson Bus Transportation Company be-
came members of the Association. Thereafter the Association held
monthly meetings in a store-house in the rear of the Jersey City
garage, which had been designated for the use of the Association
by Capitani. At the time of the hearing, the Association had ap-
proximately 57 members, and had entered into agreements with the
Hudson Bus Transportation Company ° and the respondent.
III. RELATIONS BETWEEN RESPONDENT AND THE ASSOCIATION
When the controlling interest in the respondent was purchased by
Capitani in July, 1935, none of the respondent's employees were
affiliated with a labor organization, although the record discloses
that at a prior date an unsuccessful attempt had been made to organ-
ize and maintain a benefit association. During the early part of
1936, efforts on the part of the Brotherhood to organize the respond-
ent's employees also failed, as will be described later.
Early efforts of the respondent on behalf of the •Association
In January, 1936, shortly after it had come to the attention of
the respondent that the Brotherhood was seeking to secure members s
among its employees, Michael Dellatorre, the respondent's superin-
tendent, warned several of the employees against participation in
union activities. Although Dellatorre has denied' the charges of
the Brotherhood in this connection, the convincing testimony of
numerous employees precludes any doubt as to Dellatorre's active
hostility toward that organization. Ralph Suter, employed by the
respondent as a driver for a year and a half, was discharged by
Dellatorre in January, 1936, because, in the opinion of Dellatorre,
Suter was "dissatisfied" with his position. Suter subsequently re-
gained his place, having first ascertained from Edward Murray, the
respondent's treasurer, that his discharge had been occasioned by a
report to the respondent concerning his activities on behalf of the
Brotherhood. Suter testified that Capitani also made reference to
his union activities, asserting that a union was undesirable "because
it would back him up against the wall". Hewitt Dunn, employed
as a driver.for three and a half years, testified that at the time of
Suter's discharge, Dellatorre asked for information concerning any-
8 Separate agreements were drawn for the Englewood and Jersey City garages , respec-
tively See Respondent's Exhibits Nos. 5 and 6.
•
786 NATIONAL LABOR RELATIONS BOARD
one who talked of union activity or of joining the Brotherhood, and
asserted "it would be a bad thing" if any of the employees should
become members of the organization. Mervyn Brown, employed by
the respondent for about four years, gave evidence of a similar na-
l ure. Harry Rever, who had been employed by the respondent for
19 months, testified that in January, 1936, Dellatorre said to him :
"Well, Harry, you know I had buses years ago down in Jersey City,
and my men joined a union and what good did it do them? It
didn't do them any good, because I cut the runs down and instead
of making what they did before they went to the union, they made
only half. The best thing for you to do is to keep your nose clean
and keep out of the union."
At the same time that Dellatorre discouraged the efforts of the
Brotherhood, he also ripened sentiment among the employees for
the introduction of the Association. He began by acquainting sev-
eral of the drivers with the advantages of an organization which
would provide for employees during periods of illness. Although
Dellatorre insists that this was his sole purpose in speaking to the
employees, the evidence is clear that he went much further. John
O'Boyle, employed by the respondent for two and a half years, tes-
tified that as early as January, 1936, in a conversation relating to
health insurance, Dellatorre suggested that the employees needed
something similar to the "nice little association down in Jersey City",
adding that "when they want things from Capitani, they go and
get it". In March, 1936, Dellatorre instructed Arthur Riha, an
employee who had been with the respondent for two years, to place
a notice on the bulletin board of the Westwood garage calling the
employees to a meeting for the purpose of discussing Dellatorre's
suggestions. Riha, after discussing the matter with fellow em-
ployees, declined to post the notice on the ground that the employees
did not desire a benefit association. Dellatorre thereupon prepared
his own notice, dated April 1, 1936, which appeared in the West-
wood garage as follows :
"TO ALL OPERATORS
"During the present illness of one of our operators Frank
Jolosky a thought has come to my mind that the operators of
this company should band to-gether and form some sort of a
Mutual Benefit Organization among themselves, to assist each
other in time of illness as I know from my observations that
none of the operators can afford to be out any length of time
without suffering to themselves and to their families.
"T have a number of plans in mind and I would gladly assist
you in starting an organization of this kind for your mutual
benefit. 0
DECISIONS AND ORDERS 787
"All operators who are interested in an organization of this
type will kindly sign their names below. Every operator should
be interested in this.
"M. A. DELLATORRE" 7
That the admonition contained in the last sentence of the notice was
heeded is evidenced by the fact that 19 employees signed in spite of
the previous statements of many of them to Riha that they did not
want another benefit association.
After the events described above, no further reference was made
to the subject of benefit organizations. Instead, Dellatorre directed
Riha to visit Johnson at the Jersey City garage of the Hudson Bus
Transportation Company. Dellatorre, in his testimony, disclaimed
any responsibility for Riha's visit to Johnson, and asserted that he
was in fact unaware at the time of the existence of the Association
and of Johnson's connection with it. However, he admitted that he
knew there was an organization of the employees of the Jersey City
line , and testified that he had known Johnson for a period of about
30 years. Furthermore, Dellatorre was aware that the organization
in Jersey City was not a benefit organization, since, prior to his posi-
tion with the respondent, he had made an unsuccessful effort to in-
duce the Association to purchase health insurance for its members.
In the light of this evidence, Riha's testimony, and the testimony of
numerous witnesses to the effect that Dellatorre had made frequent
reference to the Jersey City organization, we are satisfied that Riha
was sent to Johnson by Dellatorre with the purpose of inviting the
Association to organize the respondent's employees.
Riha was accompanied in his visit to Johnson by Herbert Kimber,
an employee of the respondent for over three years. Kimber, acting
as spokesman, questioned Johnson about the Association, and was
informed that the Association did not provide for sick benefits, but
intended to do so when it had sufficient funds in its treasury. How-
ever, any doubts Kimber might have entertained were soon set at
rest by Johnson, who stated that he had himself intended to visit
the respondent's garage to organize the respondent's employees,
and assured Kimber that there would be no trouble with Capitani,
who "knew all about the Association". Johnson asked no questions
of Kimber concerning the latter's right to represent the respondent's
employees, and testified that he took this authorization for granted.
At the close of the interview, Kimber departed with a copy of the
agreement between the Association and the Hudson Bus Transporta-
tion Company for the Englewood garage as an example of what^Tl
might be accomplished, and with the understanding that Johnson
was to come to Westwood in order to explain the workings of the
Association to Kimber's fellow employees.
7 Respondent 's Exhibit No. 3.
5727-37-vol n-51
788 NATIONAL LABOR RELATIONS BOARD
On the week following Kimber's visit to Jersey City, Johnson,
Robert Wenck, the secretary of the Association, and Jack Kerr,
another officer of the Association, came to Westwood. Their coming
was announced by a notice of a meeting placed on the bulletin board
by Kimber. At the meeting, which was attended by 10 or 12 em-
ployees, Johnson produced a copy of the constitution and by-laws
of the Association, which Kimber read aloud. A short discussion
followed, but was brought to a hasty conclusion because of the
necessity for the drivers to resume their work. Finally Kimber,
left alone with Johnson, Wenck; and Kerr, was directed by Wenck
to proceed to collect the dues. It was also agreed that Kimber should
take care of the adjustment of the grievances of the Westwood em
ployees. Johnson then entered the respondent's office, and returned
with a complete list of the respondent's employees for Kimber's use.
A week later, a second meeting was held by Johnson, Wenck,
Kimber, and six or seven employees, in the respondent's garage.
On this occasion, Wenck gave Kimber it set of dues cards for all
of the respondent's drivers, and instructed Kimber to collect the
dues, which amounted to $1 per month, on the first pay day of each
month. It was taken for granted that all of the employees would
become members of the Association, and Kimber subsequently did
in fact collect dues from all of them. Kimber testified that after
the first dues collection, he arranged with the respondent's book-
keeper that this sum should be deducted monthly from each driver's
pay
Prior to the collection of dues, Kimber drafted an agreement for
the use of the Association in negotiating with the respondent on
behalf of its employees. Kimber then gave Johnson two copies of
this instrument, the essential features of which were taken from the.
agreement with the Hudson Bus Transportation Company for the
Englewood garage, and requested that Johnson arrange a meeting
with Capitani. Pending the completion of these arrangements, Kim-
her recruited 18 of his fellow employees for the Association. Finally,
after some delay, a meeting was held on May 12 or 13, 1936, between
the respondent, represented by Capitani, and the Association, repre-
sented by. Johnson, Kimber, and Rever. The negotiations were brief,
and after a short discussion in regard to the rates of pay specified
in the proposed agreement, resulting in some minor alterations in
the draft, the agreement was signed.,, It contained the following
provision :
"1. No man will be permitted to operate a bus who is not a
member of the Hudson Bus Transportation Drivers Association."
'See: Respondent's Exhibit No. 2. The agreement was made retroactive, reciting that
it was to run for the period of one year from May 1, 1936, to May 1, 1937.
DECISIONS AND ORDERS 789
In spite of the obvious importance of these events to the respond-
ent's employees, no move was taken by the Association toward notify-
ing them of their new rights and duties. Kimber made mention of
the new agreement to some of the employees in chance conversations,
but called no meeting of the employees as a body to discuss its pro-
visions. It remained for Dellatorre, at a routine "safety" meeting
of the employees conducted by the respondent, to announce that the
agreement was in force, and to read it aloud. Dellatorre also an-
nounced that all grievances were to be adjusted through Kimber.
In this manner the undertaking-initiated by Dellatorre was brought
to a successful culmination in the establishment of the Association as a
labor organization with a closed shop agreement with the respondent.
Kimber has testified that his participation in this enterprise was unau-
thorized by his fellow employees, an admission which is fully borne
out by the evidence. At no time was Kimber designated by the re-
spondent's employees as their representative either to explore the
problem of organization with Johnson or to negotiate with Capitani.
The signatures appended to Dellatorre's notice in the early part of
April, 1936, indicated at the most the interest of the employees in the
formation of a benefit organization, and not in the formation of the
Association.
Furthermore, the record discloses that many of the employees
joined the Association in April, 1936, under compulsion. Rever testi-
fied that he joined the Association when Kimber said he would have to
join if he wanted to keep his job. James Lynch, employed by the
respondent since August, 1932, resisted the demands made upon him
by Kimber for dues until he was told by Dellatorre : "What is the
matter, Jimmie? I hear you are not going to go along with the rest
of the boys? . . . I hear the rest of the boys are going into the Hud-
son Bus Drivers Association . . . If the rest of the boys join, you
have to join. This is going to be a closed shop." These incidents
occurred prior to the signing of the agreement. Frank Harrison,
employed by the respondent for over a year, testified that at the
"safety" meeting in May, 1936, Dellatorre, in assisting Kimber to
collect dues, stated : "You either pay it or you don't go to work."
This testimony was corroborated by Gilbert H. Grace, employed by
the respondent for over three years. Hewitt Dunn testified that he
knew he was joining a union "run under the company." It is evi-
dent that under these circumstances, the employees joined the Associa-
tion through fear rather than through self determination.
We have repeatedly held in previous decisions that the formation
.and administration of labor organizations are the concern of em-
ployees, and not of employers. Section 7 of the Act provides that
"Employees shall have the right to self-organization, to form, join,
790 NATIONAL LABOR RELATIONS BOARD
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or pro-
tection." Section 8, subdivision (1) of the Act provides that it shall
be an unfair labor practice for an employer to "interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed in
Section 7." Section 8, subdivision (2), of the Act provides that it
shall be an unfair labor practice to "dominate or interfere with the
formation or administration of any labor organization or contribute
financial or other support to it." The application of these sections
of the Act to a situation such as exists in this case is illustrated by
Matter of Ansin Shoe Manufacturing Company and Shoe Workers'
Protective Union, Local No. 80,9 decided June 12, 1936, where we said:
"The charge against respondent is that it dominated and inter-
fered with the formation and dominates and interferes with the
administration of the progressive union and contributes financial
and other support to it. Sidney Ansin (treasurer and general
manager of the respondent), testifying at the hearing, sought
consistently to give the impression that respondent was purely
passive in all the events described above ; it did not call the
meetings, write the by-laws, or propose the form of the new
organization. It did not, in other words, actively take a part
in initiating or forming the specific organization here attacked.
"We do not so narrowly interpret section 8, subdivision (2),
of the Act, as to require this direct and immediate link between
the employer and the out-lawed organization. This section does
not stand alone; its meaning is derived not solely from its
words but from related sections and from the purposes of the
Act. This section makes specific one of the ways in which an
employer can interfere with the broad right of the employees
under section 7 to bargain collectively through representatives
of `their own choosing', and is to be construed so as to further
the intention of section 7. Its object is to protect the rights of
employees from, being hamstrung by an organization which has
grown up in response to the will and the purposes of the em-
ployer, an organization which would not be, in the sense of
section 7, an organization of the employees' choice. The workers
may be aware of their employer's antipathy to union organiza-
tion and seek to propitiate him by acceptable conduct. This
may be unavoidable. But the employer can be prevented from
engaging in overt activity calculated to produce that result. If
labor organizations are to be truly representative of the em-
ployees' interest, as was the intention of Congress as embodied
91 N.L R.B 929.
DECISIONS AND ORDERS 791
in this Act, the words `dominate and interfere with the forma-
tion of any labor organization' must be broadly interpreted to
cover any conduct upon the part of an employer which is in-
tended to bring into being, even indirectly, some organization
which he considers favorable to his interests."
These principles are applicable here; in fact, the participation of
the respondent in the organization of its employees in the instant
case was more direct. The successful organization of the respond-
ent's employees by the Association was almost entirely due to the
intervention and solicitation of employees by the respondent's super-
visor, Dellatorre. Proceeding sometimes with caution and subtlety,
but often fostering his design with abrupt warning as to the con-
sequences of non-conformity, Dellatorre succeeded in erecting a bar-
rier against the influence of the Brotherhood, and in herding the
employees into the safe pasturage afforded by the closed shop agree-
ment between the respondent and the Association. The respondent
has thus substituted its will for the freedom of choice guaranteed to
its employees by the Act. We find, therefore, that 'the respondent
has dominated and interfered with the formation of the Hudson
Bus Transportation Drivers' Association.
IV. EVENTS LEADING TO THE DISCHARGES
The effect of belonging to an organization not truly representative
of their aims soon became manifest in the dissatisfaction of the re-
spondent's employees with the Association. Kimber testified that
grievances arose immediately concerning the failure of the re-
spondent to pay the rates specified in the agreement, but that he was
powerless to adjust them with the respondent either through his own
efforts or through the Association. The complaints were so per-
sistent that Kimber, according to his testimony, would have resigned
from the Association had it not been for his fear of losing his job.
The grievances were discussed at the meetings of the Association in
June and August, 1936, the July meeting having been postponed
when an insufficient number of members attended.1° Johnson testi-
fied that at the close of each meeting he visited Capitani in an effort
to secure an adjustment of the complaints., However, he made no
list of the grievances or other matters which he discussed with
Capitani, nor any record of adjustments made, and made verbal
reports to the employees. This procedure in no way served to allay
the prevalent discontent.
11 Inasmuch as the respondent 's employees work in shifts, the attendance at these meet-
ings was always limited, and they were conducted whether a majority of the members was
present or not.
u The evidence disclosed that Capitani was always in the vicinity of the meetings when
they were held, although he did not attend.
792 NATIONAL LABOR RELATIONS BOARD
In consequence of the circumstances thus described, all of the re-
spondent's drivers with the exception of Frank Jolosky joined the
Brotherhood on August 16 and 17, 1936. The effect of this move
upon the respondent and the Association was electric. Dellatorre
learned of what had occurred on August 18 through one of the shop
employees, and immediately conveyed the information to Capitani.
Dellatorre then boarded Kimber's bus and demanded to know how
many of the drivers had affiliated with the Brotherhood. Kimber
testified that Dellatorre "seemed mad". On the same day, the re-
spondent held a meeting of its employees, attended by Capitani,
Dellatorre, Johnson, Wenck, and about 15 drivers, on which occasion
each driver was requested to declare whether he was a member of
the Brotherhood. As to what occurred at this meeting Johnson
testified as follows :
"At the discussion at that meeting they (the employees) were
satisfied with the wages, they were satisfied with the working
conditions, but they were not satisfied with the representation
and the representative in that barn was Herbie Kimber. I
didn't appoint him, the men said they -didn't elect him. He was
the spokesman for the group, he was the spokesman that came to
my house, and I took it for granted that the men put him there,
him and Riha, they said they didn't elect him, and I don't know
if they did or not."
According to the testimony of several employees, Johnson asserted
that there would have been no trouble had Dellatorre lived up to
the agreement and the rules of the Association. No action of any
'sort was taken at the meeting and it was testified by Riha that
Capitani remarked at its close
"That he would not really hold it against us for joining the
Brotherhood, but we could continue on with our work and 'that
would be all there would be to it."
It was also testified that Capitani informed his employees that they
would have to find another place to hold their meetings in the future.
After the meeting, on the same evening, Dellatorre discharged
Chester Thomas. On the next day, August 19, several of the re-
spondent's employees noticed that new men were being broken in
on Jolosky's bus. On August 20, Riha, who was talking to a Public
Service 12 driver in his bus, was accosted by Capitani, who, mistak-
ing the identity of the strange driver, said : "If I ever catch a
Rockland driver 13 in the bus with you I will split your both heads
open." Riha testified that subsequent to this Capitani followed him
la A rival Company.
I e, a member of the Brotherhood.
- DECISIONS AND ORDERS 793
with his automobile. On-the same day, Dellatorre discharged Ralph
Suter and Hugo Weisslader. On August 22, Dellatorre also dis-
charged Charles Hollingsworth. On August 24. and 25, the re-
mainder of the employees who had joined the Brotherhood were
discharged as they ' came to work. We will now consider these
discharges. ,
V. THE DISCHARGES
As above stated, the respondent proceeded to discharge its em-
ployees who were members of the Brotherhood immediately upon
ascertaining definitely the extent of their activity in that organiza-
tion. It is clear from the record that the summary dismissals on
August 24 and 25, 1936, were the result of the insistance of the
Association that the respondent abide by the terms of the agree-
ment. Dellatorre has testified in this connection that he was in-
structed to discharge the employees by Capitani on August 24. The
conversation and the attendant circumstances, as related by Della-
torre, were as follows : "Mr. Capitani came up to Westwood .. .
`Mike', he says, `You had better get the things ready for tomorrow
morning'. I said, `What do you mean?' He said, `Johnson told me
we have got to let the men go', so I said, `All right, why do we have
to let them go V He said, `It is due to the fact that they have vio-
lated their contract, the by-laws whatever they have,' and he says,
They have got to be let go.' So I said, all right, and we both sat
down, and we' arranged, the schedule for the following morning.
The next morning I come in and I told the men one by one just
what was what and said their places were taken by organization
men." This evidence was corroborated by Johnson, who testified
4 hat he had warned Capitani against any violation of the agreement.
Johnson also testified that he had instructed Capitani on August 21
to break in new drivers preparatory to the replacement of the em-
ployees who were members of the 'Brotherhood, and had himself
supplied men for this purpose.14 Johnson testified further that on
August 21, at a special meeting of the Association attended by the
drivers of the Englewood and Jersey City garages of the Hudson
Bus Transportation Company, it was resolved that the respondent's
employees would be expelled from the Association unless they re-
signed from the Brotherhood.- On August 24, Johnson notified
Capitani for the first time that the members of the Brotherhood
16 The drivers whom Johnson supplied were members of the Association who worked as
"extra" drivers for the Hudson Bus Transportation Company
1e The discharged employees have contested the authority of the Association under. Its
constitution and by-laws to expel them from membership , and have made tenders of subse-
quent dues However, in view of the findings that the Association has been illegally estab-
lished in the respondent's line, this matter is of no importance in the decision of the case,
and will not,be discussed.
794 NATIONAL LABOR RELATIONS BOARD
were to be discharged, an injunction which Capitani executed
through Dellatorre without delay.-
The Brotherhood took steps toward securing the reinstatement of
its members in the respondent's line. The agreements between Rock-
land Coaches, Inc., Rockland Transit Co., and Spring Valley Motor
coach Co., and the Brotheihood expired on August 28, 1936. On
August 24, representatives of the Brotherhood arranged a meeting
with Capitani for the purpose of negotiating a renewal of these
agreements. On August 27 or 28, at the meeting between the parties,
the Brotherhood demanded that prior to the signing of any agree-
ment it was necessary for Capitani to reinstate the discharged em-
ployees. Capitani testified in this regard that "They (the Brother-
hood) said that it wasn't so important about these paragraphs (of
the proposed agreement), that we discussed, or that we could not
agree on, but the main thing was to put the Hill men back to work."
Capitani testified further that on the following day the Brotherhood
threatened to go on strike if the reinstatement was not effectuated
immediately. Capitani, disturbed by the possibility of a strike on
several of his bus lines, sent for Johnson, and, according to his testi-
mony, "told Johnson I was going to break his contract because of the
fact I didn't want these lines to go on strike and we couldn't afford
to tie them up". Capitani, in spite of Johnson's protests, thereupon
signed the following statement :
"SPRING VALLEY MOTOR COACH CO., INC.
SPRING VALLEY
NEW YORK
"To
29th, 1936.
WHOM IT MAY CONCERN :
"I agree that in the event that the present contract now in
existence on the property"of the Hill Bus Co. is annulled or can-
celled that I will enter and.place into effect same contract now in
existence with the Rockland Coaches, Inc. and the Spring Valley
Motor Coach Co., Inc.
"In the event that this contract is not cancelled prior to its
expiration date May, 1937-I will not renew same but shall enter
into a contract with the Brotherhood of Railroad Trainmen.
covering the Hill Bus Co.
"ERNEST CAPITANI, Pres.
"ROCKLAND COACHES, INC.
"SPRING VALLEY MOTOR COACH CO., INC." 17
10 Although not strictly essential to the decision of this case , it is of extreme interest
to note the manner in which Johnson assumed the direction of the respondent 's affairs.
Considered in the light of the respondent 's eagerness to organize the Association among its
drivers, the curious simultaneous origin of similar organizations in every independent bus
line in Hudson County , the close association of these organizations , and the fact that
Johnson is the son of the superintendent of buses in Hudson County, all become significant.
11 Respondent 's Exhibit No. 1, at p. 143.
DECISIONS AND ORDERS 795
On August 30 and 31, the respondent reinstated all of the employees
whom it had discharged at the request of the Association, thereby
replacing the drivers supplied to Capitani by Johnson.
On September 1, 1936, the. Association filed a bill in the Court of
Chancery of New Jersey against the respondent , Ernest Capitani and
Michael Dellatorre , setting forth the contract between the Associa-
tion and the respondent , alleging that "commencing Monday, August
31st, 1936 the regular members of said complainant association were
to be supplanted by other drivers of some other organization contrary
to the terms of the contract", and requesting that the Court give such
relief as would remedy this alleged situation pendente lite. On the
same day, an order was issued by the Court, calling upon the re-
spondent to show cause why the relief asked for by the Association
should not be granted , and ordering pendente lite, and until the
further order of the Court , that the respondent be enjoined "from
firing, dismissing , replacing or refusing to permit its drivers who
are regular members of the complainant association from carrying
out their usual employment ". This order of the Court was duly
served upon the respondent , and resulted in a second and final dis-
charge of the employees whom the respondent had reinstated on
August 30 and 31.
VI. EFFECT OF THE PROCEEDINGS IN THE NEW JERSEY COURTS
The proceeding thus begun in the Court of Chancery in New Jersey
has resulted in protracted litigation involving the Association, the
respondent , and the Brotherhood . On September 8, 1936, the dis-
charged drivers applied to the Court for leave to be admitted as
intervening defendants, and were so admitted. The discharged driv-
ers thereupon filed an answer and counter -claim against the respond-
ent, alleging that they were illegally ousted from its employment,
and another counter-claim against the Association , contesting the
right of that organization to deprive them of their membership. At
the same time , the discharged drivers filed a petition in contempt
against the respondent, alleging that their discharge immediately
after the issuance of the restraining order of the Court was in viola-
tion of that order and in deprivation of their rights as members of
the Association . On October 2, 1936, the Court rendered its opinion,
dismissing the counter-claims and petition in contempt filed by the
discharged drivers, and stating that "the . . . intervening defend-
ants are not entitled to contest collaterally the right of the com-
plainant to bring this suit . . . If these intervening defendants had
been unfairly ousted from the complainant 's association, or if they
have a grievance against it , their rights may be protected by the
institution of a proper suit". On October 8, in accordance with its
796 NATIONAL LABOR RELATIONS BOARD
opinion, the Court issued an interlocutory decree restraining the re-
spondent, pnendente lite, and until the further order of the Court,
from injuring the rights of the Association. On October 10, the
discharged drivers appealed from this order of the Court to the
Court of Errors and Appeals of the State of New Jersey, where the
appeal was pending at the time of the hearing -before the Board. On
October 26, the discharged drivers also filed a bill in the Court of
Chancery of New Jersey for the purpose of compelling the Associa-
tion to reinstate them as members in good standing in the Association.
An order to show cause was issued by the Court, on the same day;
returnable on November 5, on which date the matter was continued to
November 19, and then continued for an indefinite time.
Prior to the filing of the bill in the Court of Chancery of New
Jersey on October 26, the Brotherhood had filed charges with the
Regional Director for the Second Region, as we have already de-
scribed. The respondent in its answer has alleged that the dis-
charged employees had submitted themselves to the Court, of Chan-
cery of New Jersey, and were not now entitled to a hearing by the
Board. The respondent has also contended -that a decision of the
Board in conflict with the decision of the Court of Chancery of New
Jersey "would jeopardize and embarrass the respondent, and might
subject respondent to contempt proceedings". Neither of these con,
tentions is of serious merit. Aside from the fact that the Board has
obvious jurisdiction in this proceeding under the clear mandate of
the Act, nothing has transpired in the courts of New Jersey which
can even be said to lend color to the respondent's assertions. The
Court of Chancery of New Jersey, in its opinion of October 2, 1936,
made no attempt to adjudicate the rights of the discharged employees
in relation to the Association, and explicitly stated they were free to
seek a proper remedy. Furthermore, the Court of Chancery of New
Jersey did not have before it for consideration the questions raised in
this proceeding. In the Court's opinion, the issue was defined as
relating only to the alleged violation of the agreement between the
respondent and the Association, and the opinion recited that in the
answering affidavits filed by the respondent's counsel it was stated,
and was admitted on the record, that the respondent had violated
the agreement by the reinstatement of its discharged employees.
Thus, the Court found no occasion to examine into the history of the
Association or the legality of the agreement, and referred to the
relation of the discharged employees to the Association in the follow-
ing terms : "I might add that the intervening defendants seek to
inject into the issue between the complainant and the original defend-
ants all the elements of a labor dispute-an issue which is clearly
collateral to the issues herein." It was therefore clearly contem-
plated in the decree of the New Jersey Court that the discharged
DECISIONS AND ORDERS 797
employees should seek elsewhere for an adjudication in regard to the
labor dispute, as indeed they have done.
VII. CONCLUSIONS IN RESPECT TO THE DISCHARGES
In view of the finding that the respondent has dominated and
interfered with the formation of the Association, it necessarily,
follows that the closed shop agreement between the respondent and
the Association, designed to insure the permanence of their illegal
relation, is void. The respondent,- therefore, is in no position to
set forth the agreement as a defense to the discharge of the em-
ployees named in the complaint. Furthermore, it is clear that
these employees were discharged because they had joined and
assisted the Brotherhood. .
In regard to Thomas, Suter, Weisslader, and Hollingsworth, the
respondent relies on an additional defense, contending that their
discharges were occasioned by their violation of the rules of the
respondent, and had no relation to their activities in the Brother-
hood. It is a frequent contention of employers in cases before the
Board that discharges were for inefficiency and violation of company
rules rather than for union activities. In Matter of Pennsylvania
Greyhound Lines, Inc., et al. and Local Division No. 1063 of the
Amalgamated Association of Street, Electric Railway, and Motor
Coach 'Employees of America,',, decided on December 7, 1935, we
said that "In reaching a decision between these conflicting conten-
tions the Board has had to take into consideration the entire back-
ground of the discharges, the inferences to be drawn from testimony
and conduct, and the soundness of the contentions when tested
against such background and inferences. (Compare Norris v. Ala-
bama, 294 U. S. 587 (1930).) Moreover, as the Supreme Court has
stated, `Motive is a persuasive interpreter of equivocal conduct',
so that the Board may properly view the activities of the respondents
in the light of the manifest interest and purpose described above.
(Texas & New O7-leans Railroad Co. v. Brotherhood of Railroad &
Steamship Clerks, 281 U. S. 548 (1930).)" Applying these prin-
ciples to the instant case, the conclusion is inescapable that the
respondent discharged Thomas, Suter, Weisslader, and Hollings-
worth in retribution for their disregard of the respondent's wishes
in regard to the Brotherhood. The record is replete with incidents
displaying the concentration of purpose of the respondent in mak-
ing the Association the exclusive organization among its employees.
Its diligence in pursuing this objective was complemented from
the first by its persistent efforts to ward off the influence of the
Brotherhood. In the light of this background, we do not consider
Is IN.L . R. B. 1.
798 NATIONAL LABOR RELATIONS BOARD
that the sudden discharge by the respondent of several employees-
of long standing immediately following their affiliation with the
Brotherhood is satisfactorily explained by the resurrection of a
number of charges concerning offenses many of which had occurred
a considerable time prior to the discharges, and on account of which
the offenders had already been penalized. In reaching this con-
clusion, we must consider the strenuous conditions under which the
drivers of the respondent must operate.1° In Suter's case, it is
significant that he had been dismissed once before by Dellatorre,
because of his union activities. We find on the basis of a study of
the entire record, that the discharges of Chester Thomas, Ralph
Suter, Hugo Weisslader, and Charles Hollingsworth were occasioned
by their membership in the Brotherhood.
In accordance with these findings, we conclude that the respondent
has discriminated with respect to the hire and tenure of employment
of Chester Thomas, Ralph Suter, Hugo Weisslader, Charles Hol-
lingsworth, John O'Boyle, Archie Dunn, Henry Holzenthaler, Harry
Rever, Howard Matthews, Hewitt Dunn, Frank Harrison, Leroy
Sassenscheid, James Lynch, Arthur Riha, Herbert Kimber, Mervyn
Brown, and Gilbert Grace for the purpose of discouraging member-
ship in Brotherhood of Railroad Trainmen, Rockland Lodge No. 329.
We also conclude that the respondent, by the acts above set forth
in paragraphs III, IV, and V, has interfered with, restrained, and
coerced its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection as guaranteed in Section ,7 of the Act.
We find further that the discharged employees were employees
of the respondent at the time of their discharge, and ceased work
because of the aforementioned unfair labor practices. The record
1c' It was testified by some of the employes that it was necessary to speed in order to
maintain the schedules set by the respondent . In the light of the respondent 's charges
that the discharged drivers had violated traffic regulations and had engaged in "playing
tag" with other buses, the following document containing confidential instructions from
Dellatorre to the respondent 's employees is of interest :
"MAY 26, 1936
"To All OPERATORS (CONFIDENTIAL) :
"The following instructions must be carried out right to the minute otherwise you
will receive time off.
"Leave Westwood at 15 after and 15 of, arrive at Madison and Washington at 7
and 37 after , Monument Englewood at 19 and 49 after, move up to the R . R. tracks
and wait for the 84 and keep far enough in front of him so that he cannot overtake
you on Grand Ave.
"Also when you arrive at the N. Y terminal stick around the waiting room as
there are always people seeking information who may be going over our route. Pull
up on the stand five minutes before your leaving time and if the Eagle does not pull
out on time blow your horn and infoim the starter.
"Destroy this slip after you have read it.
(Board's Exhibit No. 10.)
DECISIONS AND OILDERS 799
discloses that at the time of the hearing these employees had not
obtained any other regular and substantially equivalent employment.
The aforesaid acts of the respondent tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
The discharges described above form an inseparable part of the
respondent's attempt to foist upon its employees an organization
inimical to their interests and contrary to their wishes. Only by the
restoration of these employees to their former positions and by the
withdrawal of all recognition from the Association as their repre-
sentative can the respondent reestablish itself within the confines of
the law, and we will so order. For the sake of completeness, and
in order that the respondent conform its conduct to the requirements
of the Act, it follows that the respondent must also cease requiring
as a condition of employment that its employees become members of
the Association.
It will be noted that the order requires the respondent to make
whole the discharged employees by giving them back pay for the
period from the dates of the initial discharges to the date of rein-
statement prior to the order of the Court of Chancery of New Jersey,
and ,again for any period of time which may elapse from the effective
date of the decision of the Board in this case to the date of the offer
,of reinstatement to the discharged employees by the respondent.
We have not ordered the respondent to make whole the discharged
,employees for the losses of pay from the date of the order of the
Court,of Chancery of New Jersey to the date of this decision.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law :
1. Brotherhood of Railroad Trainmen, Rockland Lodge No. 329,
is a labor organization, within the meaning of Section 2, subdivision
(5), of the Act.
2. Hudson Bus Transportation Drivers' Association is a labor
organization, within the meaning 'of Section 2, subdivision (5), of
the Act.
3. By its domination and interference with the formation and
administration of the Hudson Bus Transportation Drivers' Associa-
tion, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8, subdivision (2) of the
Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Chester Thomas, Ralph Suter, Hugo Weisslader, Charles Hol-
lingsworth, John O'Boyle, Archie Dunn, Henry Holzenthaler, Harry
800 NATIONAL LABOR RELATIONS BOARD
Rever, Howard Matthews, Hewitt Dunn, Frank Harrison, Leroy
Sassenscheid, James Lynch, Arthur Riha, Herbert Kimber, Mervyn
Brown, and Gilbert Grace, thereby discouraging membership in the
labor organization known as Brotherhood of Railroad Trainmen,
Rockland Lodge No. 329, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8,
subdivision (3), of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1), of the Act.
6. The persons named in Paragraph 4 above were employees of the
respondent at the time of their' discharge, within the meaning of
Section 2, subdivision (3) of the Act.
7. The aforesaid labor practices are unfair labor practices affect-
ing commerce, within the meaning of Section 2, subdivisions (6) and
(7) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law,
and pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, Hill Bus Company, Inc., and its officers, agents,
successors, and assigns shall:
1. Cease and desist from in any manner interfering with, re-
straining, or coercing its employees in the exercise of their rights to
self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid or protection, as guaranteed in
Section 7 of the National Labor Relations Act ;
2. Cease and desist from dominating or interfering with the
formation or administration of any labor organization of its em-
ployees, or contributing financial or other support thereto ;
3. Cease and desist from in any manner discouraging membership
in Brotherhood of Railroad Trainmen, Rockland Lodge No. 329, or
any other labor organization of its employees, or encouraging mem-
bership in the Hudson Bus Transportation Drivers' Association, by
discriminating in regard to hire and tenure of employment or any
term or condition of employment, or by threats of such discrimina-
tion.
4. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Withdraw all recognition from the Hudson Bus Transportation
Drivers' Association as the representative of its employees for the
purposes of dealing with the respondent concerning grievances, rates
DECISIONS AND ORDERS 801
of pay, wages, hours of employment, and other conditions of
employment; and completely disestablish the Association as such
representative;
b. Offer to Chester Thomas, Ralph Suter, Hugo Weisslader,
Charles Hollingsworth, John O'Boyle, Archie Dunn, Henry Holzen-
thaler, Harry Rever, HotiVard Matthews, Hewitt Dunn, Frank
Harrison, Leroy Sassenscheid, James Lynch, Arthur Riha, Herbert
Kimber, Mervyn Brown, and Gilbert Grace, and each of them, im-
mediate and full reinstatement, respectively, to their former posi-
tions, without prejudice to their seniority or other rights and
privileges previously enjoyed;
c. Make whole Chester Thomas, Ralph Suter, Hugo Weisslader, and
Charles Hollingsworth, and each of them, for any losses of pay they
have suffered by reason of their discharge by payment to each of
them, respectively, of a sum of money equal to that which each of
them would normally have earned as wages during the period from
the date of the severance of his employment to September 1, 1936,
computed at the average weekly wage earned by each of them at the
time of the discharge;
d. Make whole John O'Boyle, Archie Dunn, Henry Holzenthaler,
Harry Rever, Howard Mattews, Hewitt Dunn, Frank Harrison, Le-
roy Sassenscheid, Jame ' s Lynch, Arthur Riha, Herbert Kimber,
Mervyn Brown, and Gilbert Grace, and each of them, for any losses
of pay they have suffered by reason of their discharge by payment to
each of them, respectively, of a sum of money equal to that which
each of them would normally have earned as wages during the
period from the date of the severance of his employment on August
24 or 25, 1936, to the date'of his reinstatement prior to September 1,
1936, computed according to the average weekly wage earned by each
of them at the time of the discharge;
e. Make whole the persons, named in Paragraph 4 (b) above, and
each of them, for any losses,of pay they may suffer by reason of their
discharge by payment to each of them, respectively, of a sum of
money. equal to that which each of them would normally earn as
Avages during the period from the effective date of the decision of the
Board in this, matter to the date of such offer of reinstatement, com-
puted at the average weekly wage earned by each of them at the time
of the discharge;
f. Post notices in conspicuous places in the respondent's garage in
Westwood, New Jersey, stating (1) that the respondent will cease
and desist as aforesaid; (2) that the Hudson Bus Transportation
Drivers' Association is so disestablished and that the respondent will
refrain from any recognition thereof; and (3) that such notices will
remain posted for a period of at least thirty •(30) consecutive. days
from the date of posting.