Ohio Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1940

21 N.L.R.B. 751 (N.L.R.B. 1940)

In the Matter Of OHIO GREYHOUND LINES, INC. and AMALGAMATED
ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EM-
PLOYEES OF AMERICA AND DIVISION 12071 THEREOF (A. F. OF L.
AFFILIATE)
In the Matter of OHIO GREYHOUND LINES, INC. and BROTHERHOOD OF
RAILROAD TRAINMEN, LODGE 974
In the Matter Of CENTRAL GREYHOUND LINES, INC. and BROTHERHOOD
OF RAILROAD TRAINMEN, LODGE 974
Cases Nos. R-19385, C-1246, and C-1247, respectively. -Decided
March 18, 1940
Motor Bus Transportation Industry-Interference, Restraint, and Coercion:
advice by respondent and its counsel to employees to join one "outside" union
rather than another-Discrimination: discharge of one employee because of his
union membership and activity ; dismissed as to five employees ; charge dis-
missed that reinstatement of former employee was for purposes of discriminat-
ing against present employees in respect to seniority rights because of said
employees' union membership and activity-Reinstatement Ordered: employee
discriminatorily discharged-Back Pay: awarded from date of discharge to date
of Intermediate Report, and from date of Order to date of offer of reinstate-
ment-Investigation of Representatives: controversy concerning representation
of employees : refusal to recognize petitioning union on ground Board had
certified rival union with whom a contract was in force ; refusal to renew con-
tract with rival union doubting its majority-Unit Appropriate for Collective.
Bargaining: bus drivers employed by Ohio-Representatives: proof of choice :
contention that majority claimed by petitioner was obtained by coercion-
Election Ordered: B. R. T. and Amalgamated on ballot.
Mr. Charles F. McErlean, for the Board.
Mr. Manferd Burleigh, of Minneapolis, Minn., and Bowen, Best,
Flanagan ctr Rogers, by Mr. Ivan Bowen, of Minneapolis, Minn., for
the respondents.
Mr. David Zimring, of Chicago, Ill., for the Amalgamated.
IThe petitioner in the representation case (Case No R-1225) was Division 1183 of the
Amalgamated On June 15, 1939, after the hearing, counsel for the petitioner represented
to the Board in Washington, in a statement supported by affidavits, that said Division had
been consolidated with Division 1207 of the Amalgamated, that the resulting Division was
called Division 1207, and filed a motion to amend the caption in Case No R-1225 to indi-
cate said change. On January 2 , 1939, the Board , after due notice to all parties in the
proceedings , granted said motion.
21 N. L.R.B,No.74.
751
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. A. G. Johnson, of Chicago, Ill., and Mr. S. R. Harvey, of
Cleveland, Ohio, for the B. R. T.
Miss Margaret M. Farmer, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 8, 1938, the Brotherhood of Railroad Trainmen, Lodge
974, herein called the B. R. T., filed charges and on July 30, 1938, and
on November 17, 1938, amended charges with the Regional Director
for the Seventh Region (Detroit, Michigan) alleging that- Ohio Grey-
hound Lines, Inc., Chicago, Illinois,2 herein called Ohio, 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.
On July 1, 1938, the B. R. T. filed with said Regional Director
charges and on July 30, 1938, September 23, 1938, and November 23,
1938, amended charges alleging that Central Greyhound Lines, Inc.,
Cleveland, Ohio.3 herein called Central, had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3) of the Act.4 On October 4, 1938, the
Board, acting pursuant to Article II, Section 37 (h), and Article III,
Section 10 (c) (2), of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered that the above-mentioned
cases, together with two cases involving Canadian Greyhound Lines,
Ltd., herein called Canadian,-5 be consolidated for the purpose of
hearing and all other purposes.
2 The address of Ohio as given in the charges is Detroit , Michigan.
3 The address of Central as given in the charges is Detroit , Michigan
* On September 27, 1938, the Board ordered that the above cases be consolidated with
two other cases. On October 4, 1938 , the Board revoked said order of consolidation.
5The two cases were Matter of Pennsylvania Greyhound Lines, et at ( Canadian Grey-
hound Lines, Ltd.) and The Brotherhood of Railroad Trainmen, 3 N. L. R. B 622, which
the Board ordered to be reopened for the limited purpose of taking additional testimony
on the question of the jurisdiction of the Board over employees of Canadian , and a case
involving employees of Canadian initiated by charges filed by the B R T. On June 2,
1939, after the issuance of the Intermediate Report by the Trial Examiner, the two cases
involving Canadian were severed and a decision was issued • Matter of Pennsylvania Grey-
hound Lanes, et at. (Canadian Greyhound Lines , Ltd.) and The Brotherhood of Railroad
Trainmen; Matter of Canadian Greyhound Lines, Ltd and Brotherhood of Railroad Train-
men, 13 N. L R. B . 28. We shall omit herein all discussion of the cases involving
Canadian.
OHIO GREYHOUND LINES, INC. 753
On January 3, 1939, the Board by its Regional Director issued its
complaint in the consolidated cases, alleging that Ohio, Central, and
Canadian had engaged in and were engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act. Copies of the complaint, ac-
companied by notice of hearing, were duly served upon all parties.
In so far as the complaint is based upon charges filed against Ohio,
it alleges in substance : (1) that Ohio discouraged membership in
the B. R. T. by discharging and thereafter refusing to employ two
bus drivers, William Carey and Victor McDunnah, because they
joined and assisted the B. R. T.; and (2) that by the above and other
acts, Ohio interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
In respect to Central, the complaint alleges in substance: (1) that
on or about November 24, 1937, Central discouraged membership
in the B. R. T. by employing, in violation of an agreement between
the Central and the B. R. T., one Donald Decker, a bus driver whom
it had theretofore discharged for cause, and reinstating him to the
seniority held by him prior to said discharge, thereby discriminating
against Joseph Bynum and others of its employees because said em-
ployees joined and assisted the B. R. T.; (2) that Central discouraged
membership in the B. R. T. by discharging and thereafter refusing
to employ four bus drivers, Charles A. Richards, Howard A. Lan-
caster, Anthony V. Kletz, and Joseph Bynum, because said employees
joined and assisted the B. R. T.; and (3) that by the above and other
acts, Central interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On January 17 and 18, 1939, respectively, Central and Ohio, herein
sometimes called the respondents, filed their answers to the complaint.
Each respondent denied that it had engaged in the unfair labor prac-
tices alleged in the complaint and each averred by way of affirmative
defense (1) that the B. R. T. had been certified by the Board as ex-
clusive bargaining representative for its employees, and that the
Board is without jurisdiction to intervene in matters covered by the
provisions of an agreement governing the conduct of employees and
the manner of settling grievances entered into as a result of negotia-
tions with the B. R. T. pursuant to said certification; (2) that the
complaint is based upon charges involving persons who were not its
employees at the time of filing said charges; (3) that there is a mis-
joinder of causes of complaint; and (4) that the Board is without
jurisdiction to join matters.of complaint in regard to one corporation
with matters of complaint against other and separate corporations.
754 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
On September 15, 1938, Amalgamated Association of Street, Elec-
tric Railway, and Motor Coach Employees and Division 1183 6 thereof
(A. F. of L. affiliate), herein called the Amalgamated, filed with the
Regional Director a petition and on December 12, 1938, an amended
petition, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Ohio, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the Act. On January 13, 1939, the Board, acting pursuant
to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice,
and, acting pursuant to Article II, Section 37 (b), and Article III,
Section 10 (c) (2), of said Rules and Regulations, ordered that said
case be consolidated with the unfair labor cases for all purposes.
Pursuant to notice, a hearing was held in the consolidated cases
from January 23 to 27, 1939, in Detroit, Michigan, before Peter F.
Ward, the Trial Examiner duly designated by the Board. The
Board, Ohio and Central, the B. R. T., the Amalgamated, and the
parties to the cases involving Canadian were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties.
During the hearing the Trial Examiner granted a motion of counsel
for the respondents to introduce into the record by reference the
decisions in Matter of Pennsylvania Greyhound Lines, et al. and The
Brotherhood of Railroad Trainmen 7 and in Matter of Pennsylvania
Greyhound Lines, Inc. et al. and Local Division No. 1063 of Amal-
gamated Association of Street, Electric Railway and Motor Coach
Employees of America.8 At the beginning of the hearing, at the close
of the Board's case, and at the close of the hearing, counsel for the
respondents renewed a motion made prior to the hearing to dismiss
the complaint on the ground of misjoinder of causes of action and on
the ground that the disputes involved therein were determinable under
contracts which were in force between the respondents and the B. R. T.
at the time the disputes arose and therefore not subject to determina-
tion by the Board. During the course of the hearing, counsel for
the respondents also moved to dismiss paragraphs 17 and 23 of the
complaint,9 or in the alternative, that counsel for the Board be re-
9 Now Division 1207. See footnote 1
13 N. L. R,B. 622.
BIN L. R B 1.
9 Paragraphs 17 and 23 of the complaint allege that Ohio and Central, respectively, had
by acts set forth in other paragraphs of the complaint and by other acts not specifically
set forth, interfered with and coerced their employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
OHIO GREYHOUND LINES, INC. 755
quired to furnish a bill of particulars in respect to the allegations of
said paragraphs, and moved that paragraph 25 10 of the complaint be
dismissed on the ground that the matters alleged therein were deter-
minable under the contract in force between Central and the B. R. T.
At the close of the hearing, counsel for the respondents moved to
dismiss the complaint on the additional ground that the allegations
of the complaint had not been proved. The Trial Examiner denied
these motions in part and in part reserved decision thereon. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed. Motions upon which the Trial Examiner reserved decision
at the hearing and upon which he did not rule subsequently are hereby
denied.
On April 6, 1939, the Trial Examiner issued his Intermediate Re-
port in which he found, so far as Ohio and Central are concerned,
that each of said respondents had engaged in and were engaging in
unfair labor practices within the meaning of Section 8 (1) and Sec-
tion 2 (6) and (7) of the Act, and recommended that the respondents
cease and desist from such practices. He found further that the
respondents had not committed unfair labor practices within the
meaning of Section 8 (3) of the Act and recommended that the com-
plaint to that effect be dismissed.
On April 17, 1939, the respondents notified the Regional Director
that they had complied with the recommendations of the Intermediate
Report. On the same day the B. R. T. filed with the Board exceptions
to the Intermediate Report in so far as said report recommended that
the complaint be dismissed as to the employees named therein.
The Board has reviewed the exceptions to the Intermediate Report
and, except as they are consistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS it
Ohio Greyhound Lines, Inc., is an Indiana corporation having its
principal place of business in Chicago, Illinois. Under the name of
Greyhound Lines it is engaged in the business of transporting by
10
Paragraph 25 of the complaint alleged that Central employed one Donald Decker after
having discharged said employee for cause , and reinstated him to his original seniority
rating in violation of an agieement between the B R T and Central , thereby discrimi-
nating against other employees in respect to tenure , terms, and conditions of employment
because said employees belonged to and aided the B R T
11The findings in this section , except as to the number of drivers employed by the com-
panies in 1939 . are derived from the Decision in Mattel of Pennsylvania Greyhound Lines,
at al and The Brotherhood of Railroad Travamen , 3 N L R B 622 , which was introduced
into the record in the instant proceedings by consent of the parties
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motorbus for hire passengers, mail, express, and newspapers, under
regularly published tariffs, through the States of Michigan, Ohio, and
Indiana. Its gross revenue for the year ending December 31, 1936,
was $610,637.61, and for the first 5 months of 1937, $247,088.25. Dur-
ing the pay-roll period of January 1 to 15, 1939, it employed 55
drivers.
Central Greyhound Lines, Inc., is a Delaware corporation with
New York and Indiana subsidiaries, having its principal place of
business in Cleveland, Ohio. It is engaged in the business of trans-
porting by motorbus for hire passengers, mail, express, and news-
papers under regularly published tariffs, through the States of
Massachusetts, New York, Pennsylvania, Ohio, Indiana, Michigan,
and Illinois. The consolidated gross revenue for the year ending
May 31, 1937, was $5,022,641 and its total consolidated assets on
December 31, 1936, were $7,325,546.37. On December 15, 1937, it
employed approximately 650 drivers.
The voting capital stock of both respondents is owned directly or
indirectly by the Greyhound Corporation of Delaware. Both are
closely affiliated with other Greyhound systems in the Greyhound
Lines and, by means of joint operating traffic and facility arrange-
ments with these systems and interchange arrangements with inde-
pendent bus lines, operate as a closely coordinated part of an
integrated system of national transportation.
H. THE ORGANIZATIONS INVOLVED
The Brotherhood of Railroad Trainmen is a national labor
organization founded in 1883 to represent railroad trainmen in train
and yard service. Since November 1933 it has admitted motorbus
drivers to membership. During the year 1937 Lodge 974, which filed
the charges in the instant cases, limited its membership to drivers of
Ohio, Central, and Canadian. The record is not clear as to the
present membership requirements of Lodge 974.
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, Division 1207 thereof (A. F. of L.
affiliate), is a labor organization. Although its exact membership
requirements are not disclosed by the record, it is shown that the
organization admits to membership bus drivers employed on the
Ohio lines.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
For some time prior to April 22, 1937, there existed throughout
the system of Greyhound Lines a labor organization generally re-
ferred to as the Company Association of Employees. The govern-
OHIO GREYHOUND LINES, INC. 757
ing body of this organization was composed of representatives of
both employers and employees in the various Greyhound companies
including Ohio and Central. On or about April 22, 1937, Grey-
houncl officials informed the Company Association of Employees
that, in view of the decisions of the Supreme Court of the United
States rendered on April 12, 1937, in National Labor Relations Board
v. Jones d Laughlin Steel Corporation, 301, U. S. 1, and companion
cases, in which the Act was held to be constitutional, the respective
Greyhound lines would no longer recognize the organization as the
bargaining agent for their employees and suggested that its mem-
bers seek an "outside" union as their representative in collective
bargaining.
At a meeting held on April 22, 1937, delegates to the quarterly
meeting of the Company Association of Employees, including
employees of Ohio and Central, discussed the advisability of joining
either the Amalgamated or the B. R. T. The Greyhound officials
and their counsel indicated a preference for the Amalgamated. In
reply to questions asked hini by employees, counsel for the respond-
ents stated that his preference was based upon the fact that the
B. R. T. has _ sought legislation favorable to railroads and detri-
mental to motorbus transportation. We find that by thus expressing
their preference for one labor organization over the other at a time
when representatives of their employees were discussing the selec-
tion of a bargaining agelit the respondents interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B. Discrimination in regard to hire and tenure of employment
1. The discharges on Ohio
William C. Carey was first employed as, a driver on the,Greyhound
Lines in June 1931. At the time of his discharge on or about May
28, 1937, he was employed by Ohio on its Detroit to Cincinnati run.
Manferd Burleigh, the general manager of Ohio at the Detroit
terminal , testified that Carey was discharged because of his poor
driving record, culminating in two checker reports 12 showing that
he (1) had loitered at stops and then exceeded the speed limit in
order to arrive at the next stop on schedule; (2) had upon one
12 The various Greyhound .conrpanies'elnploy an outside- company periodically to Investi-
gate the driving qualities of Greyhound drivers Employees of the outside company,
known as "checkers ," ride on the Greyhound busses or follow the busses in private cars and
submit "checker" reports to a Greyhound supervisory employee on the bus driver 's observ-
ance of company and State regulations , efficiency , and courtesy to passengers The checker
reports on a driver are made a part of the driver 's permanent record with the Company
and serve as a basis for either discipline or commendation.
283032-41-vol 21 49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion traveled over a road he was not authorized to traverse and
had consequently arrived at his destination ahead of schedule; (3)
had stopped his bus at a railroad crossing with the front wheels on
the railroad tracks; and (4) had been discourteous to passengers.
Burleigh testified that Carey had had several accidents and had
repeatedly violated company driving and safety rules, that he had
often discussed Carey's record with the latter and had warned him
that if he could not improve his driving he might as well resign
from his employment. Although Carey denied that he had been
guilty of some of the violations of rules charged against him and
sought to explain others, he admitted that Burleigh had discussed
his record with him several times, and that upon the last of these
occasions, about 2 weeks before his discharge, Burleigh had asked
him to resign from Ohio.
Carey joined the B. R. T. in April 1937. There is no evidence in
the record to show that he otherwise took part in union activities
or that Burleigh was aware of his union membership.
We are of the opinion that Carey was discharged for reasons other
than his union membership and activity.
Victor illcDunnah was first employed as a driver on Central in
1934. In June 1937 he transferred to Ohio and at the time of his
discharge on or about November 15, 1937, was driving on the Detroit
to Cincinnati run. Burleigh testified that McDunnah's driving
record was unsatisfactory, that he had often discussed it with
McDunnah and had urged him to improve his driving, and that he
finally discharged McDunnah because of two checker reports showing
that he had skidded the wheels of his bus on a slippery pavement,
had passed vehicles in a dangerous manner, had tried to stop for
railroad crossings but was going so fast he found it impossible to
do so, had almost struck the rear of a preceding car when he failed
to notice that the car was slowing up for a right-hand turn, and
had been discourteous to passengers. McDunnah denied that he had
been guilty of some of, these acts.- Burleigh also testified that.
McDunnah was irresponsible in his family affairs and had caused.
Ohio annoyance by leaving his family unprovided for during his'
absence while driving for a charter party. McDunnah admitted
that at such times his wife appealed to Ohio officials for money "to
tide her over" until his return.
McDunnah was a member of the B. R. T. at the time of his dis-
charge. There is no evidence to show that he otherwise participated
in union activities. In October 1937 when two supervisory employees
asked him if, he intended to walk out if the- B. R. T. called a strike,
he evaded the question.
We find that McDunnah was discharged for reasons other than
his union membership or activity.
OHIO GREYHOUND LINES, INC.
2. The reinstatement of Donald Decker by Central
759
Donald Decker was employed as a bus driver by Central prior
to February 20, 1927. In February 1937 he was dismissed from the
service by Manferd Burleigh, the regional manager for Central at
the Detroit terminal, on charges of misconduct made against him
by a rest-stop proprietor. The grievance committee of the Company
Association of Employees took up his case with Central officials but
failed to accomplish his reinstatement. However, Burleigh promised
Decker to reconsider the case upon Decker's submission of more con-
vincing evidence of his innocence. On November 24, 1937, the day
a B. R. T. drivers'`strike became effective, Decker called Burleigh, in-
formed him that he could furnish conclusive proof of his innocence
of the charges against him, and requested reinstatement. Burleigh
advised Decker that he could not reconsider his case at that time
but offered to employ him as a new driver and to consider his claim
to reinstatement at a later date. Decker accepted this offer, was
immediately placed upon the "extra board" 13 and listed upon the
employee roster as entitled to seniority as of November 24, 1937.
Burleigh reconsidered Decker's case in April 1938. After ex-
amining documents submitted by Decker at that time, including
statements from witnesses as to Decker's conduct at the rest stop and a
statement in Decker's defense prepared by the chairman of the griev-
ance' committee of the Company Association of Employees for use
at the time of Decker's discharge, he decided that the charges against
Decker were groundless and that Decker should be fully reinstated
to his former seniority rights and privileges. On April 24, 1938,
Decker's seniority rating was changed from November 24, 1937, to
February 20, 1927. He thereupon became senior man on the "extra
board" and was enabled immediately to bid for and to obtain a regu-
lar run to which, had he not been reinstated to his original seniority
rating,, Joseph S. Bynum or one of a number of other drivers on the
"extra board" would have been entitled.
The complaint alleges in substance that Central reinstated Decker
to his former seniority rating in violation of an agreement between
Central and the B. R. T., and for the purpose of discriminating against
Bynum and other employees in respect to tenure, terms, and condi-
tions of employment for the reason that said employees joined and
assisted the B. R. T.
Although the reinstatement of Decker, occurring as it did during
a strike of the B. R. T., is suspicious, we find that the record does not
^'The! "exfra board" is composed 'of drivers who do not hold regular runs They, to-
gether with other.-drivers, may bid. for regular runs when such are available The.3uns
are assigned to the bidder - with the highest seniority-rating. _ "
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support these allegaticns. Burleigh promised to reconsider Decker's
case, provided Decker could submit further evidence of his innocence,
long before Decker was placed upon the "extra board." He decided to
reinstate Decker after a consideration of evidence which showed
Decker to be innocent of the charges which had caused his dismissal.
There is no evidence in the record to indicate that any of Decker's
co-drivers on the "extra board," with the exception of Bynum, were
union members at the time of Decker's reinstatement or that such
reinstatement tended to discourage any driver from joining the
union or from participating in union activity.
We find that by reinstating Decker, Central did not discriminate
in regard to the hire and tenure or conditions of employment of
Bynum or any other employee on the "extra board" because of said
employee's membership or activity in behalf of the B. R. T. We
shall dismiss the complaint that it did so.
3. The discharges on Central
Charles A. Richards was employed as a bus driver on_ Central prior
to February 1927. At the time of his discharge on or about January
28, 1938, he was driving on the Detroit, Michigan, to South Bend,
Indiana, run. Burleigh testified that Richards was frequently in-
toxicated, had been warned upon several occasions that he would be
'discharged unless he could remain sober, and was finally discharged
because he appeared on the night of January 27, 1938, at the Detroit
bus terminal while intoxicated and initiated a fight among the drivers.
Richards admitted that he had been warned that he must curtail his
drinking in order to retain his job and that on the night in question
lie had participated in a fight at the terminal while intoxicated.
Richards joined the B. R. T. in May 1937, and went on strike with
other B. R. T. drivers, in November 1937. However, he returngd to
his run after the strike, which terminated on December 1, 1937, and
worked for approximately 2 months before he wall discharged,
There is no evidence to show that he participated in any union
activity other than the strike or that his discharge was in any manner
connected with such participation.
We find that Richards was discharged for misconduct and not
because of his union membership and activity.
Howard A. Lancaster was employed as a driver on Central prior
to February 1927. At the time of his discharge on or about. Augu,t
23', 1938, he was driving on the run from Detroit, Michigan, to"'South
Bend, Indiana.
Lancaster testified that he was discharged because of his failure
to-report an accident in which he was involved on. August 9, 1938.
He admitted that the accident was his fault, and that he had been
OHIO GREYHOUND LINES, INC. 761
involved in other accidents in which he had been at fault during
his employment with the Greyhound Lines. He also admitted that
at the time of the accident he knew that the failure to report an
accident was a violation of a rule set forth in his drivers' manual '4
and was considered by Central as a cause for dismissal.
Lancaster joined the B. R. T. in May 1937. Except for his par-
ticipation in the drivers' strike in November 1937, there is no evidence
that he was active in union affairs.
We find that Lancaster was discharged because of a violation of
company rules and not because of his union membership and activity.
Joseph S. Bynw im was employed as a bus driver by Central on
June 14, 1937. At the time of his discharge on or about October 8,
1938, he was driving on the run from Detroit, Michigan, to South
Bend, Indiana.
Burleigh testified that his decision to discharge Bynum was based
upon a checker report showing that Bynum was a reckless driver and
upon a consideration of Bynum's entire record. His driving record,
substantial portions of which were read into the record, shows that
during his 17-month employment by Central, Bynum had had five
ccidents, three of which were judged to be his fault, and adversea
checker reports showing numerous violations of safety rules. Bynum
admitted that he had been at fault in three accidents. He also ad-
initted that he told Burleigh at the time of his discharge that he
knew his driving record was poor.
Bynum joined the B. R. T. in October 1937. Except for his par-
ticipation in the drivers' strike in November 1937, there is no evidence
that he was active in union affairs.
We find that Bynum was discharged for reasons other than his
union membership and activity.
Anthony Kletz was employed as a bus driver by Central in June
1930. At the time of his discharge on December 13, 1937, he was
driving on the run from Muskegon, Michigan, to Chicago, Illinois.
Kletz had.an excellent safety record with Central. On December 13,
1937, he was presented by Central's regional manager, P. C. Johnson,
with a diamond button, earned as of October 30, 1937, and a safety
placque inscribed "This is to certify that Anton V. Kletz, while em-
ployed as a bus operator by the company, through his carefulness
and his obedience to safety rules and regulations, has completed a
safe driving record for five years ending October 30, 1937, and has
been awarded a five-year non-accident button. This safety record
merits the highest commendation and praise."
Immediately following the presentation of these awards, Johnson
dismissed Kletz from the service, allegedly because he became in-
24 Greyhound Lines Manual of Rules for Bus Operators , Respondent Exhibit 9.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved in a minor accident through an error of judgment and because
he violated a company rule in seeking aid in connection therewith
from a fellow employee rather than from a supervisory employee.
Kletz maintained that the circumstances surrounding the discharge
and the manner in which it was carried out show that the accident
was a mere pretext, not a bona fide reason for dismissing him from
the service. He contended that he was discharged because of his
union membership and activity.
The accident occurred under the following circumstances. On
Saturday, December 11, at 11:30 p. m., Kletz left Muskegon, Michigan,
for Chicago, Illinois, with four passengers in his bus. He was in-
formed that the usual route between Muskegon and Holland, Michi-
gan, was blocked by snow and, on Johnson's orders, took an alternate
route. He did not receive either information or instructions con;
cerning the route from Holland, Michigan, to Chicago. A new road
had been under construction for some time between the towns of
Saugatuck and Douglas, Michigan. Although the new road was
passable the bus drivers were permitted to and usually did use an
old road which had been used as the regular route during the con-
struction of the new road. On the night in question Kletz decided
to use the old road because such a course would take him into Douglas
"facing in the right direction." Shortly before entering Douglas,
the old road crossed a bridge and immediately turned sharply to
the left and slightly down hill along a river bank. When Kletz had
proceeded for approximately 175 feet along the river bank he was
suddenly confronted with approximately 200 feet of roadway which
had not been cleared of snow and which was obviously impassable.
Beyond this stretch the road had been cleared. Kletz decided to
back the bus to the bridge, retrace his route to Saugatuck and take
the new road to Douglas. However, when he attempted to back he
discovered that he was mired, and when he removed his passengers
and attempted to shovel the snow from around one wheel, the bus
slid against the guard rails along the edge of the road nearest the
river. After attempting unsuccessfully to free the bus, Kletz walked
back to Saugatuck, telephoned to the bus depot at Holland and re-
quested that one Keeter, a relief driver whom he knew to be sta-
tioned there, but who could not, apparently, be summoned to the
telephone, come to his aid with an extra bus and a tow chain. Kletz
then returned to his bus. While he was awaiting Keeter, he dis-
cussed his situation with a crew of highway workers operating a
snow plow. The crew informed him that the road between Sauga=
tuck and Douglas was clear of snow except for the short stretch
in which the bus was mired, and that the - failure to clear that
portion of road was due to the fact that a snow plow had-broken.
He also' learned that he was the third bus 'driver who had been
r{ OHIO., GREYHOUND LINES, INC. 763
mired in that particular location in 24 hours. The crew attempted
but failed to move the bus.
When Keeter received Kletz's request for aid, lie telephoned for
instructions to Johnson at the latter's home in Grand Rapids.
Johnson telephoned one Acton, a wrecking-car owner in Douglas
whose services Central had used upon former occasions, and instructed
him to pull Kletz's bus out of the snow. After Acton had freed the
bus Kletz resumed his run to Chicago. Two panels of the bus were
slightly damaged where they had rested against the guard rails.
The passengers were not injured.
At a hearing before Johnson, held on January 17, 1938, after
Kletz's discharge, in accordance with provisions for the handling of
grievances contained in a contract between the B. R. T. and Central,
Johnson stated that the discharge of Kletz arose solely from inci-
dents connected with the accident, and emphasized the fact that
Kletz had violated company rules in reporting the accident to Keeter
rather than to a supervisory employee, and in failing to seek in-
structions in regard to moving the bus. In a subsequent hearing on
appeal of the case, held before Budd, the president of Central, on
June 4, 1938, Johnson admitted that Kletz had not been advised of
the condition of the road south of Holland, Michigan, and that the
choice of a route beyond that point and the decision to attempt to
free his bus under his own power after it became mired were mat-
ters within Kletz's discretion. Johnson considered that Kletz had
used poor judgment in attempting to use the old road and felt that
Kletz should have telephoned for instructions before attempting to
move the bus. He again emphasized the fact that Kletz had asked
aid from the wrong source. On the other hand, Kletz testified at
this hearing that Johnson had repeatedly instructed his drivers to
"use their heads" in emergencies, that he had not been directed to
call his superiors for instructions upon previous occasions when he
had been mired in the snow, and that upon such occasions, he usually
had been able to free the bus under its own -power. Johnson did
not deny that this was true.
At the hearing in the instant case, Johnson abandoned his position
that the accident was the sole cause of Kletz's discharge and testified
that "based on his (Kletz) record of the past several years, plus the
incident at hand, we did not-I did not consider him capable of re-
maining in our service." This testimony is not consistent with the
facts. Records of the hearings before Johnson and Budd, mentioned
above, and of decisions in the case rendered by Benefiel, vice presi-
dent of Central, and by Budd, and introduced in evidence by Central,
show conclusively that Johnson discharged Kletz without any con-
sideration of his past driving record.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Convincing evidence was introduced to show that Kletz was dis-
charged because of his union membership and activity. Kletz was
an active union member. He joined the B. R. T. in May 1937 and
helped organizd the drivers at the Muskegon terminal. He twice
tied with another driver for a union office in union elections. He
then withdrew his candidacy in favor of the other driver who had
greater seniority than he. He went on strike with other drivers in
November 1937, and was active on the picket line.
Johnson was on ` friendly terms with Kletz prior to the strike.
He had selected Kletz as his personal driver from time to time and
had received chickens and other commodities from Kletz, by way
either of purchase or of gift, during the time he had known Kletz.
Johnson was hostile, however, to union activity among his drivers.
Although he had been instructed by his superiors to avoid discussing
labor or the joining of any organization with his men, he went out
of his way to inquire into the union activity of his men. Kletz
-testified that Johnson had given Kletz his home telephone number with
instructions to inform Johnson'immediately if he heard of a driver
joining the union. Although Johnson could not recall this particular
incident at the hearing, he testified that some of his drivers had had
information concerning union activity among the drivers prior to
the organizational drive of the B. R. T., that the men understood
that they were free to call him at his home "in any emergency," and
had informed him of such activity upon several occasions. Johnson
further testified that his attitude upon such occasions was "not to
go by that information I had from that party but to proceed on
my own basis, I was usually able to ferret out my own information.''
In November 1937 Kletz was asked by a dispatcher whether he in-
tended to join a drivers' strike called by the B. R. T. for November
24. He testified that when he signified his intention of striking with
the other drivers, Johnson, who was standing by, "flared up" and
exclaimed "Jesus Christ, you're not going out!" Johnson admitted
that he may have spoken to Kletz upon this occasion but denied
that he had made the remark attributed to him. Johnson could not
recall the incident clearly, however, and we are of the opinion that
Kletz's version of what occurred there is substantially correct. We
find that Johnson was antagonistic toward the union activity of his
drivers and that he was opposed to Kletz's action in joining the
strike.
Kletz was discharged approximately 10 days after the termina-
tion of the strike. He contended that Johnson had decided upon _
his dismissal before receiving his report of the accident. In support
of this contention and his contention that the accident in which he
was involved on December 11, 1937, was a pretext rather than a
OHIO GREYHOUND LINES, INC. 765
reason for eliminating him from the service and that the true reason
for his discharge was his -union activity, he related that he was dis-
charged in the following manner. On the morning of December 13,
1937, the drivers at the Muskegon terminal assembled in the drivers'
room for the presentation of awards. Kletz received a diamond
button for a,5-year no-accident xecord,. as, has been mentioned above.
After the presentation of these awards, Johnson instructed Kletz to
write a report of the accident of December 11. Immediately upon
receiving this report, he requested all the drivers except Kletz to
leave the room, read Kletz certain rules from the drivers' manual,
the contents of which are not specified in the record, read Kletz a
report of the accident written by Acton, the wrecking-car owner who
freed Kletz's bus, and dismissed Kletz from the service. Kletz testi-
fied that he was not afforded an opportunity to discuss the accident
at that time but that Johnson, immediately after discharging him,
offered to disregard the discharge, provided Kletz complied with
Johnson's wishes in matters wholly unconnected with the accident;
that Johnson said to him, "Well, you know, Kletz, if you was on the
right side of the fence I could tear this up . . . I'll let you think
it over 15 or 20 minutes," and that when Kletz failed to accept John-
son's implied suggestion, Johnson reaffirmed his discharge.
At the hearing Johnson stated that he had discharged Kletz after
a consideration of his accident report. He denied that he had offered
to disregard the discharge under any circumstances. We note, how-
ever, that Kletz also testified to the occurrence of the above incident
in the hearing before Budd, held 6 months prior to the hearing in
the instant case, and that Johnson, although present and able to
question Kletz at that time, had neither questioned Kletz nor denied
that the incident had taken place. We find that Kletz was dis-
charged in the manner described by him.
The Trial Examiner recommended that the complaint be dismissed
as to Kletz. He based this recommendation on his finding that fac-
tors other than Kletz's union activity entered into his discharge and
that the discharge may have been based upon such factors. 'He cited
as an example, a ncontradictecl testimony that during the drivers'
strike, Johnson and Kletz had a controversy concerning the payment
for chickens supplied to Johnson from Kletz's chicken farm and that
Johnson maintained that he had been forced to pay twice for the
chickens. It may well be that the controversy concerning the pay-
ment for the chickens contributed to Johnson's determination to
discharge Kletz. We believe, however, in the light of Johnson's
hostility toward the union activity of his men and his knowledge of
Kletz's participation in such activity, that Johnson's reference to
"the other side of the fence" can reasonably be interpreted only as
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a request that • Kletz abandon his union allegiance as ' a condition of -
remaining in Central's employment. We believe, furthermore, that
Johnson's hostility to Kletz's union activity furnished the principal
motive underlying Kletz's discharge.
We find that the respondent, through Johnson, discharged Kletz
because of Kletz's union membership and activity, thereby discourag-
ing membership in the B. R. T. and interferilig with, restraining,,
and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of Ohio and Central set forth in Section
III above, occurring in connection with the operations of said com-
panies described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Ohio and Central have engaged in certain un-
fair labor practices, we shall order them to cease and desist from
further engaging in such practices. However, since both respond-
ents have posted the notice recommended by the Trial Examiner that
they will cease and desist from engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act, we shall not require
them again to post notices in regard to these practices.
We have found that Central discriminatorily discharged Anthony
Kletz on December 13, 1937. We shall order Central to offer to said
employee immediate and full reinstatement to his former or to a
substantially equivalent position without prejudice to his seniority
and other rights and privileges. Normally we would also order back
pay from the date of discharge to the time of the respondent's offer
of reinstatement. We believe, however, that in view of the Trial
Examiner's recommendation, Central could not have been expected
to reinstate Kletz after it received the Intermediate Report (April G,
1939), and therefore it should not be required to pay back pay from
that time to the date of this Decision 15 We shall therefore order
Central to make Kletz whole for any loss of pay he may have suf-
fered by reason of the discrimination against him by payment to
him of a sum of money-equal to the amount he would normally have
earned from the date of Central's discrimination against him in De-
ss See Matter of B. R. Haffelfinger Company, Inc . and United Wall Paper Crafts of
North America , Local No. 6, 1 N. L. R . B. 760, 767.
OHIO GREYHOUND LINES, INC. 767
cember 1937 to April 6, 1939, the date of the Intermediate Report of
the Trial Examiner and from the date of this Order to the date of
the respondent's offer of reinstatement pursuant to. the terms of our
Order, less his net earnings 16 during said periods.
VI. THE QUESTION CONCERNING REPRESENTATION
During February or March 1938, the Amalgamated, claiming that
it represented a majority of Ohio's employees, requested Ohio to
negotiate a collective bargaining agreement with it. Ohio refused to
bargain with the Amalgamated on the ground that the Board had
certified the B. R. T.11 as exclusive bargaining agent for its em-
ployees and that a collective bargaining contract with the B. R. T.
was then in force. In October or November 1938, Ohio, in response
to an inquiry by the Board, stated that it did not recognize the
Amalgamated as the bargaining representative of its employees and
that in view of the Board's certification of the B. R. T. as bargaining
agent the claim that Amalgamated represented a majority of Ohio's
employees should be presented to the Board. On December 1, 1938,
Ohio refused to renew its contract with the B. R. T. on the ground
that said organization did not at that time represent a majority of
its employees. The B. R. T. contends that it is the representative
of the drivers on Ohio pending the Board's certification of another
organization as collective bargaining agent.
We find that a question has arisen concerning the representation of
employees of Ohio.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with operations of Ohio described in
Section I above, has a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by Kletz in connection with obtaining work and working elsewhere
than for Central , which would not have been incurred but for his unlawful discharge and
refusal of employment 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, 8 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 him, and the amount thereof shall be paid over to the appro-
priate fiscal agency of the Federal, State, county , municipal, or other government or gov-
ernments which supplied the funds for said work -relief projects.
17Matter of Pennsylvania Greyhound Lines, et al. and The Brotherhood of Railroad
Trainmen, 3 N L. R B. 622
768 DECISIONS OF NATIONAL LABOR RELATTONS BOARD
VIII . THE APPROPRIATE UNIT
In September 1937 we determined that bus drivers employed by
Ohio constituted an appropriate bargaining unit.18 The Amalgam-
ated, in its petition, and the B. R. T., during the course of the
hearing, requested that said unit be retained in the instant case.
We find that bus drivers employed by Ohio constitute a unit
appropriate for the purposes of collective bargaining and that said
unit will insure to employees of Ohio the full benefit of their right
to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Amalgamated claimed to represent a majority
of the employees of Ohio in the appropriate unit and introduced
evidence in support of its claim. The B. R. T. contended that a
number of employees claimed as members by the Amalgamated had
been coerced into joining that organization. We are of the opinion
that an election by secret ballot is necessary to resolve the question
concerning representation which has arisen.
We shall direct that the employees within the appropriate unit who
were employed by Ohio during the pay-roll period last preceding
the date of this Direction of Election, including employees who did
not work during such pay-roll period because they were ill or on
vacation and employees who were then or have since been temporarily
laid off, but excluding employees who have since quit or been dis-
charged for cause, shall be eligible to vote. -
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric- Railway ahd 'Mo-
tor Coach Employees of America and Division 1207 thereof (A. F.
of L. affiliate) and Brotherhood of Railroad Trainmen, Lodge 974,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Anthony Kletz, thereby discouraging membership in
Brotherhood of Railroad Trainmen, Lodge 974, Central Greyhound
Lines, Inc., has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
"Matter of Pennsylvania Greyhound Lines, et al . and The Brotherhood of Railroad
Trainmen, 3 N. L. R. B. 622, 671.
OHIO GREYHOUND LINES, INC. 769
3. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act,
Ohio Greyhound Lines, Inc., and Central Greyhound Lines, Inc.,
have engaged in and are 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
within the meaning of Section 2 (6) and (7) of the Act.
5. A question affecting commerce has arisen concerning the rep-
resentation of employees of Ohio Greyhound Lines, Inc., Chicago,
Illinois, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
6. The bus drivers employed by Ohio Greyhound Lines, Inc., con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
7. Ohio Greyhound Lines, Inc., by discharging William Carey and
Victor McDunnah,"and Central Greyhound Lines, Inc., by discharg-
ing Joseph Bynum, Howard Lancaster, and Charles Richardson, and
by reinstating Donald Decker, have not engaged in unfair labor
^practices_within the meaning of Section 8 (3) 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 Ohio
Greyhound Lines, Inc., Chicago, Illinois, and its officers, agents, suc-
cessors, and assigns shall cease and desist from in any manner in-
terfering with, restraining, or coercing its employees in the exercise
of the right to self-organization, to form, join, or assist the Brother-
hood of Railroad Trainmen, Lodge 974, or any other labor organiza-
tion, to bargain collectively -through representatives of their own
choosing, -and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act;
AND IT IS FURTHER ORDERED that Central Greyhound Lines, Inc.,
Cleveland, Ohio, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Brotherhood of Railroad Train-
men, Lodge 974, or discouraging membership in any other labor
organization of its employees, by discriminating in regard to hire and
tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, oir"coercing
its employees in the exercise of the right to self-organization, to form.
join, or assist labor organizations, to bargain collectively through
770 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Anthony Kletz immediate and full reinstatement to
his former, or to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges ; and make him whole
for any loss of pay he may have suffered by reason of Central's dis-
crimination against him by payment to him of a sum of money equal
to that which lie would normally have earned as wages from the date
of Central's discrimination against him in December 1937, to April
6, 1939, the date of the Intermediate Report of the Trial Examiner
and from the date of this Order to the date of the offer of reinstate-
ment pursuant to this Order, less his net earnings 19 during said
periods; deducting, however, from the amount otherwise clue him.
monies received by him during said periods for work performed upon
Federal, State, county, municipal, or other work-relief projects; and
pay over the amounts so deducted to the appropriate fiscal agency of
the Federal, State, county, municipal, or other government on govern-
ments which supplied the funds for said work-relief projects.
(b) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of sixty (60) consecu-
tive days from the date of such posting, stating that Central
will cease and desist in the manner set forth in paragraph 1 (a) above
and that it will take the affirmative action set forth in paragraph 2
(a) above; that the respondent's employees are free to become and re-
main members of Brotherhood of Railroad Trainmen, Lodge 974;
and that the respondent will not discriminate against any employee
because of membership in that organization;
(c) Notify the Regional Director of the Seventh Region in writing
within ten (10) days from the date of this Order what steps Central
has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that Ohio Greyhound Lines, Inc., by discharging William Carey and
Victor McDunnah, and Central Greyhound Lines, Inc., by discharging
Joseph Bynum, Howard Lancaster, and Charles Richardson, and by
reinstating Donald Decker, have discriminated in regard to the hire
and tenure of employment of their respective employees, be, and it
hereby is, dismissed.
" See footnote 16.
OHIO GREYHOUND LINES, INC.
DIRECTION OF ELECTION
771
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Ohio Greyhound Lines, Inc., Chicago, Illinois, an election by
secret ballot shall be conducted as early as possible but not later
than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for the
Seventh Region acting in this matter as agent for the National Labor
Relations Board and subject to Article III, Section 9, of said Rules
and Regulations, among the bus drivers employed by Ohio Grey-
hound Lines, Inc., who were on its pay roll during the pay-roll period
immediately preceding the date of this Direction of Election, in-
cluding bus drivers who did not work during such pay-roll period
because they were ill or on vacation and bus drivers who,were then
or shall have since been temporarily laid off, but excluding bus drivers
who shall have since quit or been discharged for cause, to determine
whether they desire to be represented by Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America and
Division 1207 thereof (A. F. of L. affiliate), or by Brotherhood of
Railroad Trainmen, Lodge 974, for the purpose of collective
bargaining, or by neither.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision, Order, and Direction of Election.