L & A Bus Lines

National Labor Relations Board - Board Decisions

Aug 15, 1939

14 N.L.R.B. 649 (N.L.R.B. 1939)

In the Matter of C. G. LASHLEY, DOING BUSINESS AS L & A Bus LINES
and LOCAL DIVISION #1110, AMALGAMATED ASSOCIATION OF STREET,
ELECTRIC , RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA and
Roy MAPHIS
Case No. C-791.Decided August 15, 1939
Transportation Industry-In.terterence, Restraint, and Coercion: suspension
and discharge of union president without cause with subsequent refusal to
reinstate-Discrimnination: discharge for union membership and activity sus-
tained as to one employee-Reinstatement Ordered: discharged employee-Back
Pay: awarded from date of suspension to offer of reinstatement.
Mr. Reeves R. Hilton, for the Board.
Mr. Charles Z. Heskett and Mr. Janes Alfred Avirett of Cumber-
land, Md., for the respondent.
Miss Margaret Holmes, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Roy Maphis
and Local Division No. 1110, Amalgamated Association of Street,
Electric, Railway and Motor Coach Employees of America, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fifth Region (Balti-
more, Maryland) issued a complaint, dated, March 25, 1938, against
C. G. Lashley, doiiig business as L & A Bus Lines, Cumberland,
Maryland, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were
duly served on the respondent and the Union.
The complaint charged in substance that the respondent had dis-
criminated, in regard to hire and tenure of. employment of Roy
14 N. L. R. B., No. 45.
649
650 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Maphis to discourage membership in the Union; that by this and
other acts aiid conduct the respondent had interfered with, restrained,
and coerced his employees in the exercise of their right to self-
organization and to engage in concerted , activities for their mutual
aid and . protection . On April 1, 1938, the respondent filed an answer
.denying the , allegations of unfair labor practices and making certain
allegations by way of affirmative defense.
Pursuant to notice, a hearing on the complaint was held in Cum-
berland, Maryland, on May 2, 3, and 4, 1938, before James G. Ewell,
the Trial Examiner duly designated by the Board. The respondent
appeared and was represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses , and to introduce
evidence bearing upon the issues was afforded all parties . During
the course of the hearing , the Trial Examiner made various rulings
on motions and objections to the admission of evidence , to some of
which rulings exceptions were taken . At the close of the hearing
counsel for the Board moved that the pleadings be conformed to
the proof, which motion the Trial Examiner granted. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed .' The rulings are hereby affirmed.
On July 22, 193S, the Trial Examiner filed an Intermediate Re-
port., copies of which were duly served on all parties , finding that
the respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act, and recommending that the respondent
cease and desist therefrom and offer to Roy Maphis , full reinstate-
ment. with back pay. Exceptions to the Intermediate Report were
thereafter filed with the Board by the respondent. On March 28,
1939, oral argument was had before the Board in Washington, D. C.
The respondent appeared and participated in the argument and
thereafter filed a brief, which has been considered. Except in so
far as the exceptions are consistent with the findings of fact, con-
clusions of later, and order set forth below, we find them to be without
merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent , Conda G. Lashley, for' many years has been en-
gaged in the business of transporting passengers and freight for hire
C. G. LASHLEY 651
under the trade name of L & A Bus Lines.' The respondent main-
tains bus terminals in Cumberland, Maryland, and in Keyser and
Piedmont, West Virginia. From his principal terminal in Cumber-
land, Maryland, 54 busses departed daily during the month of De-
cember 1937 en route to points in Maryland, West Virginia, and.
Pennsylvania. The respondent furnishes the only means of com-
mercial transportation between Ridgely, West Virginia, and Cum-
berland, Maryland. At Newcreek, West Virginia, the respondent's
schedules connect with those of the Greyhound bus lines which carry
passengers from Newcreek to Washington, D. C., and St. Louis,
Missouri.
The gross receipts accumulated from the transportation of pas-
sengers and freight in 1937 were $181,000, 50 per cent of which was
derived from interstate operations. The respondent in a normal
year employs approximately 35 drivers, servicemen, and mechanics.
We find that the respondent is engaged in trade, traffic, commerce,
and transportation among the several States and that the employees
of the respondent are directly engaged in such traffic, commerce, and
transportation.
If. THE UNION
Local Division No. 1110, Amalgamated Association of Street, Elec-
tric, Railway and Motor Coach Employees of America is a labor
organization drawing its membership from ,several motorbus trans-
portation companies in the vicinity of Cumberland, Maryland. It
is affiliated with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. General background
Union activity commenced in the respondent 's plant in the spring
of 1934, when Local 1041, Amalgamated Association of Street and
Electric Motor Coach Employees, 2 was organized among the respond-
'The respondent , in partnership with one Anderson , originally operated the L & A Bus
Lines. In 1.937 the respondent purchased Anderson's interest in the partnership and in
April 1938 the initial steps were taken to incorporate the L & A Bus Lines. A petition
for authority to exercise the power to obtain a certificate of incorporation was filed with
the Public Service Commission of Maryland , and on April 29, 1938 , a hearing was had
on such petition at Baltimore , Maryland . The process of incorporation was incomplete
at the time of the hearing . However, the respondent stipulated that "No objection will
be made at a later time to the jurisdiction of the Board over this new corporation and
the respondent now consents that any order that would have been made against this bus
company as an individual will likewise be made against the new corporation which has
begun but which is still in an incomplete state."
2 Affiliated with the American Federation of Labor.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's employees. In the summer of 1934 Local 1041, at that time
representing a majority of the employees, unsuccessfully attempted
to bargain with the respondent concerning the working conditions in
the plant. The respondent's refusal to recognize the representatives
of Local 1041 for the purpose of collective bargaining was based on
the claim that he had previously negotiated with the L & A Protec-
tive Association, an organization formed in the summer of 1934 under
the leadership of his garage foreman, shop foreman, and traffic
manager.
Commencing in July 1934 the respondent discharged 10 or 12
members of Local 1041, including William Dorsey, its president. As
the result of complaints filed' by the discharged employees with the
old National Labor Relations Board, hearings were held and a deci-
sion was issued on January 15, 1935. In its decision the old Board
found the Association to be company dominated and that the re-
spondent had discriminatorily discharged seven members of Local
1041. The discharge of Dorsey was not found to be discriminatory
inasmuch as the explanation advanced by the respondent, that Dorsey
had failed to report for a run, was deemed satisfactory. The Board
expressed the opinion, however, that Dorsey would not have been
discharged for this infraction had it not been for his union activities.
The case was settled in March 1935 by the immediate reinstatement
of Dorsey and by the respondent's promise to reinstate three of the
seven employees found by the old Board to have been discrimina-
torily discharged as soon as business conditions permitted. Although
Dorsey went back to work, none of the other employees were rein-
stated by the respondent. By the time Dorsey was reemployed
Local 1041 had disintegrated. The Association functioned for a
time but it had become entirely inactive by November 1936.
The Union was organized in February 1937 and upon its inception
certain funds which remained in the treasury of the defunct Asso-
ciation were turned over to the Union by the respondent's garage
foreman, the former Association president. In March 1937 negotia-
tions were commenced with the respondent concerning a collective
bargaining agreement, the Union at that time having organized a
majority of the respondent's employees. On April 1 a contract was
executed by the Union and the respondent which was by its terms
to expire on October 1, 1937. The contract embraced all the respond-
ent's drivers, mechanics, and servicemen who were at that time mem-
bers of the Union or who should thereafter become members. Among
the conditions of employment set forth in the contract were pro-
visions for an eight-hour day, for the arbitration of grievances, and
for a 10-per cent wage increase applicable to all employees. Upon the
expiration of the April contract the Union and the respondent exe-
C. G. LASHLEY 653
cuted a new agreement which was to remain effective until October 1,
1938, and which contained substantially the same provisions as were
set forth in the April contract. The Union represented all the
respondent's drivers, mechanics, and servicemen in October 1937.
The record discloses that throughout the year 1937 many grievances
concerning such matters as time schedules, seniority, and individual
working conditions arose among the respondent's employees. The
Union promptly presented each grievance to the respondent and
through conferences and discussion was successful in persuading the
respondent to adjust the majority -of - problems arising under both
contracts to the satisfaction of its members.
B. The Maph,is case
Roy F. Maphis was suspended from the respondent's employ on
January 2, 1938, and discharged on January 21, 1938. Maphis had
been employed by the respondent as a driver for approximately 9
years prior to his suspension and discharge, during which time he
had driven over 400,000 miles. Maphis enjoyed an excellent record
as a driver in the vicinity of Cumberland, Maryland, and his accident
record in the respondent's service was far superior to the records of
many of the other drivers.
Maphis was one of the organizers of the Union and was elected.
president in March 1937, which position he still occupied at the date
of the hearing. As a member of the committees which negotiated
both contracts with the respondent., and as a member of the union
grievance committee, Maphis frequently conferred with the respond-
ent throughout the year 1937 concerning union matters.
On December 27, 1937, Maphis was involved in an accident during
the course of a run between Cumberland, Maryland, and.Piedmont,
West Virginia. The accident caused very slight damage to the bus
and none of the passengers on the bus complained of injuries at the
time of the accident. Maphis reported the accident to the respond-
ent's insurance adjuster and made one run on December 28, after
which he reported off sick for several days. When he returned to.
work on January 2, the respondent informed him that several
passengers had complained of injuries received in the accident and.
that he was being suspended pending investigation of such com-
plaints. Between January 2 and January 21, the union grievance
committee and Maphis conducted an independent investigation in
an effort to discover the injuries to which the respondent had referred.
Such investigation revealed that none of the passengers interviewed
had sustained injuries or had complained to the respondent. The
committee, as well as two conciliators from the Department of Labor,
also conferred with the respondent several times during the following
654 DECISION S OF NATIONAL LABOR RELATIONS BOARD
weeks"concerning the Maphis case. On January 21 Maphis was noti-
fied. that he was being discharged for gross negligence and for
violating the respondent's rules in connection with the accident on
December 27. Thereafter the union grievance committee and the
conciliators again attempted to arrange for the reinstatement of
Maphis but with no success. On February 14 the Union wrote a
letter to..the:.respondent. requesting that the Maphis case be., arbitrated
in accordance with the arbitration procedure set forth in the October
contract. On February 19 the respondent declined to arbitrate the
case.3 On February 22 the Union called a strike in protest against
Maphis' discharge and the respondent's refusal to arbitrate. While
the strike was " in progress a conciliator from the Department of
Labor and the union grievance committee conferred with the re-
spondent many times in an effort to mediate the dispute. The strike
was finally settled on March 22 by all agreement which provided
that all the strikers, with the exception of Maphis, should be
returned to work in accordance with their seniority. Shortly after
March 22 the respondent resumed operations with about half of
his force.
. We shall now consider the December 27 accident in detail and the
reasons assigned by the respondent for Maphis' discharge. Maphis
operated three round-trip runs on December 27, all of them covering
the route between Cumberland, Maryland, and Piedmont, West Vir-
ginia, the accident occurring during the course of his third
run.4 At about 4:25 p. in. Maphis arrived in the Cumberland ter-
minal, having just completed his second run. It was snowing in
Cumberland when he drove into the terminal. The respondent
inquired of Maphis concerning the condition of the roads between
Keyser and Cumberland, to which inquiry Maphis replied that the
snow was heavy on the hills and curves. The respondent then
directed Maphis to use Bus No. 74 on the next trip, stating that it
was a big, heavy bus with good tires and would not require chains.
The, respondent further directed Maphis to disregard schedules and
put chains on at Keyser if they should become necessary. Bus No.
74 was then ordered out of the garage by the respondent and de-
livered to Maphis without chains.
- The October contract provides in part that the respondent shall meet with the Union
on all questions involving the contract , and that differences which cannot be adjusted
between them shall be submitted to an impartial arbitration board . The contract does
not expressly provide for the arbitration of discharges . There is a provision , however,
that "men working under this contract shall perform their duties at all times efficiently
and loyally observe and strictly obey all rules of the company." The Union tool: the
position that the Maphis case was a question involving the contract , inasmuch as he was
allegedly discharged for gross negligence in the operation of his bus and for violation of
the respondent 's rules , matters expressly mentioned in the contract.
4 These runs go through Keyser, West Virginia, and terminate in the tri-towns of
Piedmont, Westernport , and Luke.
C. G. LASHLEY 655
Maphis departed from the Cumberland terminal at 5 p. m., and it
continued to snow as he drove toward Keyser. Maphis stopped the
bus on the crest of McCoole hill, about 20 miles from Cumberland.
The road descends in a sharp curve to the right from the crest of the
hill, and when Mathis started around the curve he observed several
cars stalled in his path. He pulled the bus over to the left-hand side
of the road and stopped there 2 or 3 minutes until the cars below
moved on. The respondent contends that in stopping on,the crest of
McCoole hill the bus skidded and struck the left embankment.
Maphis denied this assertion and his denial was corroborated by the
testimony of three of the persons who had been passengers on the
bus. However, an equal number of passengers testified at the
hearing in support of the respondent's contention. In view of the
obvious conflict in the evid0hce, we deem it significant that Maphis'
own testimony reveals that several cars were stalled on McCoole
hill. Moreover, we have examined the signed statements of several
passengers secured shortly after the accident by the respondent's
insurance adjuster. In such statements the passengers, including two
of those who at the hearing confirmed Maphis' testimony regarding
the incident, asserted that the bus skidded on McCoole hill and struck
the embankment. These statements, signed when the events in issue
were fresh in the minds of the witnesses, add weight to the evidence
introduced by the respondent at the hearing in support of the con-
tention that the bus skidded on McCoole hill and struck the embank-
ment. Although the issue is not entirely free from doubt, under all
the circumstances we are inclined to accept the respondent's version of
the McCoole hill incident.
Maphis reached Keyser at approximately 6:15 p. m., one-half hour
behind schedule. It was snowing heavily at Keyser and there were
2 or 3 inches of snow on the ground. Maphis testified that he asked
Roderick, the respondent's foreman and sole employee at Keyser,
if it would be necessary to use chains on the road between Keyser and
Piedmont, to which inquiry Roderick replied that Kinney House
hill, the most treacherous piece of road on the run, was cindered.
Roderick denied that Maphis asked his opinion concerning the neces-
sity for chains. However, he admitted telling Maphis that Powell,
a driver who operated the 4 o'clock run between Cumberland, Keyser,
and Piedmont, had just come into Keyser from Piedmont without
chains. We are convinced that Roderick would not have volun-
teered such a statement to Maphis had not the latter inquired con-
cerning the necessity for chains. Roderick further denied telling
Maphis that Kinney House hill was cindered. However, Powell
testified that upon arriving in Keyser on the 4 o'clock run en route
to Piedmont he asked Roderick about the condition of the road be-
'656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween Keyser and Piedmont, and Roderick told him that Kinney
House hill was cindered. Roderick made no denial of Powell's testi-
mony and we therefore accept it as true. Inasmuch as Powell
received this information from Roderick only an hour before Maphis,
embarked on the same run, talked to Roderick in regard to the
same road conditions, we are satisfied that Roderick also told Maphis
that Kinney House hill was cindered. Maphis left Keyser without
chains carrying 22 passengers.
The accident occurred on the highway between Keyser and Pied-
mont, about a mile and a half from Keyser. The highway is a
concrete road approximately 18 feet wide, edged by a 4-foot dirt
shoulder that slopes down into a ditch. Maphis testified substantially
.as follows concerning the accident :
Driving on the right-hand side of the road, Maphis had reached
the crest of a small hill when he observed the headlights of a car
approaching on the left-hand side of the road. Deciding that he had
sufficient room to pass the approaching car, he continued driving
toward it at a speed of, approximately 15 miles an hour. When
he had driven beyond the glare of the car's headlights, he dis-
covered that the car was not moving but was parked on the left-hand
side of the road, and he observed for the first time a truck parked
behind the car, the rear of which protruded 3 or 4 feet across the
center of the highway. The truck had no lights and Maphis did
not see it until he was almost even with the car. He turned the bus
to the right and succeeded in clearing the truck. The right front
wheel of the bus, however, left the concrete and ran on the dirt
shoulder of the road. Maphis, having slackened his speed con-
siderably by this time, continued to drive in an effort to bring the
wheel back on the concrete. In the meantime, the right rear dual
wheels left the concrete. About 150 feet from the point where the
wheels first left the concrete the bus was brought to a sudden stop
by striking a concrete culvert embedded in the dirt shoulder of the
road. The right front wheel of the bus, being turned to the left to
climb back on the concrete, glanced off the culvert, and the right
rear dual wheels, which by this time were about 2 feet from the
edge of the concrete, straddled the culvert. The road at this point
was bordered by the bank of a mountain whose protruding stones
scraped the side of the bus as it stopped.
Maphis' testimony concerning the accident was corroborated in
part by two witnesses who had been passengers on the bus. Hanna,
one of such passengers, was riding on the left-hand side of the bus
behind Maphis and next to the window. He had wiped the frost and
mist from the window and shortly before the accident he observed
C. G. LASHLEY 657
the bright headlights of a car approaching the but. After the acci-
dent occurred, Hanna got off the bus and saw a truck on the road.
He also asserted that he observed the driver of the truck standing
beside it. The other passenger, Shoppert, also followed Maphis off
the bus after the accident occurred. His testimony at the hearing
reveals that he observed a truck a distance behind the bus on the
road. Neither Hanna nor. Shoppert recalled that the truck had
protruded across the road as claimed by Maphis, and neither of them
saw the car that Maphis asserted had been parked in front of the
truck. We feel that a reasonable explanation of this variance be-
tween their testimony and that of Maphis' lies in the fact that Maphis
descended from the bus several minutes before these passengers got
off, during which time the driver of the truck would have had an
opportunity to straighten it out and the car could have moved on.
The respondent maintains that its investigation of the accident
failed to sustain Maphis' story that he had been forced off the road
by a truck, since the truck was not located at any time subsequent
to December 27 although a thorough search for it was made in the
vicinity of the accident. As further evidence of the unreliability
of Maphis' explanation of the accident, the respondent produced six
of the persons who had been passengers on the bus to testify that they
had seen no truck at the scene of the accident. Statements to the
same effect signed by such passengers shortly after the accident at
the request of the insurance adjuster were also introduced in evi-
dence by the respondent.
We do not deem this evidence sufficient to cast doubt upon the
authenticity of Maphis' explanation of the accident. In the first
place, the fact that no trace of the truck was found by the respond-
ent after December 27 is not indicative of the absence of such a
truck. Maphis did not secure the license number of the truck at the
scene of the accident and because of the heavy snowfall was unable to
render a definite description of it. Consequently, it is not surprising
that the truck was not located by the respondent. Secondly, the
evidence reveals that the six witnesses who testified at the hearing
that they had observed no truck at the scene of the accident were
passengers who had remained seated in the bus during and after
the accident. The testimony of several passengers reveals that it
was difficult to observe anything from the windows of the bus be-
cause they were frosted due to the snowstorm. Inasmuch as the pas-
sengers in question did not come out of the bus after the accident,
their signed statements and testimony to the effect that they bad
observed no truck are not inconsistent with Maphis' statement that
such a truck was present. Furthermore, in their testimony and
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements these passengers asserted that immediately after the acci-
dent occurred Maphis stated that he had been crowded off the road
by a truck. This information, volunteered by Maphis when the event
in issue occurred, substantiates his subsequent explanation to the
same effect. We further find it significant that the two passengers
who did get off the bus with Maphis shortly after the accident
occurred testified at the hearing that they had seen a truck. The
respondent maintains that the testimony of these passengers is not
credible inasmuch as Shoppert signed-a-statement for the insurance
adjuster shortly after the accident which is at variance with his
testimony at the hearing, and inasmuch as Maphis talked with Hanna
a few days after the accident. It is true that Shoppert's statement
to the insurance adjuster shortly after the accident was in contradic-
tion of his testimony at the hearing. However, before the hearing
Shoppert also signed a statement for the Board's Examiner in which
he stated, definitely that he had seen a truck at the scene of the acci-
dent. In explaining the statement he had previously signed for the
insurance adjuster, Shoppert testified that at the time such state-
ment was taken he was uncertain whether the truck he had seen
at the time of the accident was the one which had forced the bus off
the road, and that he did not mention the truck in his statement
to the insurance adjuster because of this uncertainty. Assuming,
however, that Shoppert's testimony should not be credited in view
of these contradictory statements, the testimony of Hanna substan-
tially sustains Maphis' explanation of the accident. The fact that
Maphis called on Hanna shortly after the accident does not disturb
the credibility of Hanna's testimony, since there is no showing that
Maphis in any way influenced Hanna's version of the events that
occurred on December 27. Under all the evidence, we are convinced
that Maphis' explanation of the accident is accurate.
Immediately after the bus stopped, Maphis inquired of the passen-
gers concerning any injuries they may have received, and upon find-
ing that no one had been hurt or upset in the accident, distributed
witness cards with the request that the passengers sign and return
them to him. Thirteen passengers signed the witness cards for
Maphis. Maphis then got off the bus. A car which had been follow-
ing the bus had gone off the concrete and Maphis assisted the driver
in returning to the road. Several minutes were consumed in assist-
ing the car, and by the time Maphis directed his attention to the
truck he observed that it was moving up the hill. Consequently, he
did not obtain the license number of the truck. He then examined
the bus and discovered that the front axle was tipped back about
3 inches on the spring but that it was solid. The right front fender
was pushed out but was not loose. At the hearing, the employee
who repaired the bus testified concerning additional damage that
C. 'G. LASHLEY 659
Maphis failed to discover in his examination after the accident
occurred. He stated that the spring clips which held the axle in
place were broken; that the tires were torn; that the right front light
was thrown slightly out of focus because of the damage to the
fender; that the front clamp which held the gasoline tank in place
was torn off; that the running board was bent and that the body
panels and mouldings were bent. The total cost of repairing the bus
amounted to $31.90, $20 of which covered the cost of materials
required for its repair.
After concluding his examination of the bus at the scene of the
accident, Maphis drove to Westernport and Piedmont, West Virginia,
without any mishap. He did not telephone Keyser to report the
.accident either at the time it occurred or from Westernport or
Piedmont. A second examination in Westernport convinced him
that the bus was solid, and Maphis thereupon picked up several
new passengers and drove to Keyser without any difficulty.
When he reached Keyser, Maphis ' asked Roderick to look at the
bus. Roderick examined the front end with the aid of a flashlight
and tested the steering apparatus. At the conclusion of his examina-
tion, Roderick told Maphis that it was safe to carry his load to
Cumberland. In his testimony at the hearing Roderick indicated
that he would not have permitted Maphis to drive the bus from
Keyser to Cumberland had he known there had been an accident.
Roderick asserted that Maphis did not inform him that the bus
had collided with a, culvert but merely stated that he had been
forced off the road. It seems highly improbable that Roderick, at
least aware that the bus had been forced off the road, could have
examined the damaged axle and failed to deduce that there had been
a collision of some kind. We are satisfied that Roderick was ap-
prised of the fact that there had been an accident when he ex-
amined the bus in Keyser and, that his advice that the bus was safe to
drive was given with knowledge of that fact.
Before Maphis left Keyser, the question of chains was again dis-
cussed. Maphis stated that he did not consider them necessary,
and thereupon drove from Keyser to Cumberland without chains.
He encountered no difficulty on the road between Keyser and
Cumberland.
The reasons assigned by the respondent for Maphis' discharge were
as follows: (1) driving his bus on December 27 without chains;
(2) driving and carrying passengers in the damaged bus after the
accident occurred; (3) failing to report the accident by telephone;
and (4) failing to secure the names of nine passengers and the li-
cense number of the truck at the' scene of the accident. We shall
now consider these contentions.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to the first contention, the respondent maintains that
Maphis was grossly negligent in driving his bus on December 27
without chains. It is to be noted, however, that the respondent per-
mitted Maphis to depart from Cumberland without chains although
he knew there was a heavy snow on the road between Cumberland
and Keyser. It is true that the skidding of the bus on McCoole hill
indicated that the road conditions at that point were dangerous.
However, Maphis would have encountered extreme difficulty in at-
tempting to place chains on his bus on McCoole hill. There is evi-
dence that the jack in Bus No. 74 was inadequate to lift the bus;
furthermore, Maphis had no assistant to help him attach chains.
Since it requires as many as three persons to place chains on the
respondent's busses, it was not the usual practice for the respondent's
drivers to stop on the road over which Maphis traveled on December
27 and place chains on their busses unassisted. When Maphis ar-
rived in Keyser, he discussed the necessity for chains with Roderick,
and departed from Keyser without chains upon Roderick's advice
that, Kinney House hill was cindered: ^ Except in cases of emerg-
ency, it is true that Roderick's authority over the drivers is more
advisory than mandatory. However, the drivers customarily seek
and rely upon.his advice because of his status as foreman and his
familiarity with the route between Keyser and Piedmont. Thus, on
December '27 both Maphis and Powell omitted to use chains between
Keyser and Piedmont in reliance on Roderick's advice that Kinney
House hill was cindered. When Maphis returned to Keyser after
the accident occurred, the question of chains was again discussed.
Roderick's authority over the drivers becomes mandatory whenever
an accident has occurred on the road. It is significant that Rod-
erick failed to exercise such authority and direct Maphis to use
chains but rather approved Maphis' driving the bus in the condition
in which it arrived in Keyser. Under these circumstances, we do
not believe that Maphis' failure to use chains was a grossly negligent
omission. Furthermore, the record discloses that failure to use
chains on occasions when the respondent deemed them necessary had
never provoked such drastic discipline as discharge in the case of
other drivers.
With regard to the second contention, the respondent urges that
Maphis was grossly negligent in driving and carrying passengers in
the damaged bus after the accident occurred. , It is the respondent's
position that the full extent of the injuries to the bus was discovered
only after the shop examination and that the total damage thus sub-
sequently revealed rendered the bus unsafe for operation. Irre-
spective of the fact that the respondent after a thorough examination
of the damage to the bus considered it unsafe to drive, we feel that
Maphis' decision that it was roadworthy was reasonable under all
C. G. LASHLEY 661
the circumstances. Maphis examined the bus after the accident oc-
curred and again when he arrived in Westernport. The reasonable-
ness of his decision that the bus was safe for driving is evidenced by
the fact that Roderick, who had full authority over Maphis and the
bus due to the accident, confirmed his opinion after examining it in
Keyser and permitted him to drive it to Cumberland; and by the
further fact that Maphis encountered no difficulty in driving from
the scene of the accident to Piedmont, Keyser, and Cumberland.
Under these circumstances, we find the respondent's contention that
Maphis' conduct in driving the damaged bus was grossly negligent
untenable. Moreover, the record reveals that on one occasion another
driver drove a damaged bus from the scene of the accident to the
Cumberland terminal and was not disciplined or discharged for
so doing.
With respect to the third contention, the respondent's rules require
that the "operator of any bus which becomes disabled in service shall
promptly telephone the Superintendent of Maintenance at the same
time giving complete information as to the nature of the defect and
whether or not it is possible for him to bring the bus into the terminal
safely." Maphis did not comply with this rule, since he considered
the bus safe for the remainder of, the trip and hence deemed it un-
necessary to report to obtain a relief bus. While Maphis did breach
the respondent's rule, his failure to telephone to report the accident
under the circumstances disclosed could hardly have been deemed a
serious omission.
With respect to the fourth contention, the respondent's rules re-
quire that the driver of a bus which has met with an accident shall
secure the names of all witnesses and the license numbers of vehicles
involved therein. The purpose of these rules is to protect the re-
spondent and his insurance carrier from the risk of false claims being
filed against them. Although Maphis secured' signed witness cards
from 13 of his passengers, he neglected to obtain either cards or the
names of the remaining nine witnesses, nor did he obtain' the license
number of the truck which forced him off the road. However, no
claims of any description were ever filed against the respondent or his
insurance company as a result of the accident. Under these cir-
cumstances, Maphis' failure to obtain this information was not a
serious omission. Furthermore, Ralph Lashley testified at the hear-
ing that there had been occasions when other drivers had failed to
secure the names of 'all witnesses and that such failure had merely
provoked advice from the respondent "that it is very essential to get
all the names."
It is the further contention of the respondent that Maphis' con-
duct on December 27 was illustrative of apast record of inefficiency
and disregard of rules and regulations. The only evidence offered in
662 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
support of this contention related to an incident which occurred in
February 1937, almost a year before the events with which we are
here concerned. On that occasion Maphis was involved in an ac-
cident for which it was clearly. established that he was, not- respon-
sible. He was reprimanded by the respondent, however, for failing
to secure the names of several witnesses, for failing to report the
accident by telephone, and for driving and carrying passengers in
a damaged bus. With the exception of the February 1937 incident,
the respondent had no complaint to make concerning Maphis' con-
duct during his 8 years and 400,000 miles of driving. We are not
persuaded that the February 1937 incident, singled out of an other-
wise excellent driving record, establishes the respondent's contention
that Maphis' past record was inefficient and evidenced a disregard of
rules and regulations. On the contrary, we find that Maphis en-
joyed an excellent record as a driver in the respondent's employ.
C. Conclusions as to the Maphis Case
Maphis, the president of the Union and its most active member,
was the acknowledged leader of an employee group which was mili-
tant in its determination to preserve the working conditions it had
obtained through collective bargaining and to secure the satisfactory
adjustment of numerous grievances arising in the course of employ-
ment. His importance to the Union was evidenced by the fact that
his fellow workers struck to secure his reinstatement when other
avenues of adjustment failed. The accident which formed the basis
for Maphis' discharge was minor both in consequences and material
damage. No person was injured in the accident; no claims were
filed against the respondent or his insurance carrier; and the expense
incurred by the respondent in repairing the bus was but $31.90, the
actual cost of materials essential to its repair being only. $20. We
have found the contention that Maphis' conduct on December 27
was grossly negligent to be unsupported by the evidence, and that
Maphis' violations of certain rules were not serious offenses under
all the circumstances.
As stated by the Board in Matter of Houston Cartage Company, Inc.
and Local Union No. 367,- International Brotherhood of Teamsters,
Chauffeurs, Stablemen, and Helpers of America and L. S. Brooks:
Experience - has shown this Board that there is no field of
employment where employers can so easily find means to cloak
their real motives for discharging employees as in the employ-
5 2 N. L. R. B. 1000; see also Matter of Harry G. Beck, trading as Rocks Eapress Com-
pany and International Brotherhood of Teamsters, Chauffeurs , Stablemen and Helpers of
America, Local Union No. 355, 3 N. L..R. B. 110.
C. G. LASHLEY 663
ment of bus or truck drivers. In practically every case which
has come before us involving such employees, it has been charged
and proven that the discharged employees have exceeded the
speed limit, left their route, or made stops not strictly in line
with their duties. But from the very nature of the work of
bus or truck drivers it is apparent that an employer has only to
follow any truck or bus driver for a comparatively short time,
to find him guilty of many such violations. We are, therefore,
not impressed with the sincerity of an employer who advances
such reasons for a discharge, where he fails to show that such
violations were flagrant or repeated and where the surrounding
circumstances indicate that the employee was active in union
activities to which the employer was opposed.
The language just quoted is particularly pertinent to the instant
case. Maphis enjoyed a long and excellent driving record in the
respondent's service. It is inconceivable that the respondent would
discharge an employee of Maphis' proven ability and value because
of a minor accident and minor offenses in connection therewith.
Other circumstances also lead us to doubt the respondent's good
faith in assigning the reasons we have discussed as the basis for
Maphis' discharge. The evidence discloses that the respondent in-
formed Maphis on.January 2 that he was being suspended from duty
because several passengers had complained of injuries received in the
accident. The record, however, conclusively shows that no person
sustained injury in the accident and the respondent adduced no evi-
dence that complaints of injuries were made to him at any time
subsequent to the accident. Furthermore, the reasons later assigned
for Maphis' discharge bear no relation to the reason given him by
the respondent for his suspension on January 2. These facts are
strongly persuasive of the conclusion that the respondent was de-
termined on January 2 to discover cause to terminate Maphis' em-
ployment.° Between January 2 and January 21 the respondent con-
ducted a minute investigation of the December '27 incident in an
attempt to discover conduct for which Maphis could be criticized.
It is highly improbable that the respondent would have probed so
deeply into the circumstances attending such a minor accident in
an effort to discover breaches on the part of Maphis were there not
some other reason for desiring his discharge. The Union was un-
successful in its numerous attempts to, secure the'. reinstatement of
° There is evidence that the respondent on the evening of. December 27 expressed his
decision "to get rid of" Maphis, assertedly because of his failure to use chains , and that
-on December 28 either the respondent or his son remarked that Maphis was costing them
too much money and "we. have got to do something about it." Neither the failure to
use chains nor the money involved in repairing the bus , was mentioned to Maphis as
the basis for his suspension on January 2.
190935-40-vol. 14-43
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maphis at any time after'January 2, although it enlisted the support
of two conciliators from the Department of Labor, offered to sub-
mit the dispute to arbitration and finally resorted to: a strike in pro-
test against the respondent's disposition of the case. It is highly
unlikely that the respondent would have remained adamant, in his
determination to terminate Maphis' employment despite the inter-
cessions of the Union if the December 27 incident and Maphis' con-
duct in connection therewith were in fact the reason for his discharge.
Under all the circumstances, we find that the December: 27 incident
and Maphis' conduct in connection therewith did not ' provoke his
discharge but that the respondent seized upon' the December 27 in-
cident as an occasion for terminating the employment of the Union's
president and most active member.
We find that the respondent, by suspending Maphis from service
on January 2, 1938, by discharging Maphis on -January 21, 1938,
and by thereafter refusing to reinstate him, discriminated with re-
gard to his hire and tenure of employment, thereby discouraging
membership in the Union. We further find that, by such acts, the
respondent has interfered with, restrained, and coerced his em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations,' to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection.
THE REMEDY
We have found that the respondent suspended, discharged, and.
thereafter refused to reinstate Maphis because of his union activities.
In order to remedy such unlawful conduct, we will 'order the re-
spondent to reinstate Maphis to his former position without preju-
dice to his seniority or other rights and privileges, and to make him
whole for any loss of pay he has suffered by reason of his suspension
and discharge by payment to him of a sum equal to that which he
would normally have earned as wages from the date of his suspen-
sion from the respondent's service on January 2, 1938, until the date
of the offer of reinstatement, less his net earnings 7 during said period.
'By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by such employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, .S N. L. R. B. 440.
Monies received for work performed upon Federal, State, county ,' municipal , or other
work-relief projects are not considered as earnings , but, as provided below in the Order,
shall be deducted from the sum due the employees ; and the amount ' thereof shall be paid
over to the appropriate fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for said work -relief projects.
C. G. LASHLEY 665
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local Division #1110, Amalgamated Association of Street, Elec-
tric, Railway and Motor Coach Employees of America, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ--
mnent of Roy Maphis, thereby discouraging membership in the labor-
organization known as Local Division #1110, Amalgamated Associa-
tion of Street, Electric, Railway and Motor Coach Employees of"
America, the respondent has engaged in and is engaging in unfair-
labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing his 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 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, Within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act; the National Labor Relations Board hereby orders that the
respondent, C. G. Lashley, doing business as L & A Bus Lines, and
his officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local Division #1110, Amalga-
mated Association of Street, Electric, Railway and Motor Coach
Employees of America, or any other labor organization of his em-
ployees, by discharging, refusing to reinstate, suspending, or in any-
other manner discriminating against any of his employees in regard
to hire or tenure of employment or any other term or condition of
employment;
(b) In any other manner interfering with, restraining, or coercing
his 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 purpose of collective bargaining or other mu-
tual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board' find's
will effectuate the policies of the Act :
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Roy Maphis immediate and full reinstatement to his
former position without prejudice to his seniority and other rights
and privileges;
(b) Make whole said Roy Maphis for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to
his hire and tenure of employment, by payment to him of a sum of
money equal to that which he normally would have earned as wages
during the period from January 2, 1938, the date of his suspension
from service, to the date of such offer of reinstatment, less his net
earnings during the said period; deducting, however, from the
.amount otherwise due to the said employee, monies received by said
employee during the said period for work performed upon Federal,
'State, county, municipal, or other work-relief projects, and pay over
the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the fund for said work-relief projects;
(c) Post immediately in conspicuous places in each department
-of the respondent's plant copies of this Order;
(d) Maintain such posted notices for a period of at least sixty
(60) consecutive days from the date of posting;
(e) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. WILLIAM M. LEIs1 nsoN took no part in the consideration of the
above Decision and Order.