Ohio Valley Bus Co.

National Labor Relations Board - Board Decisions

Jan 31, 1942

38 N.L.R.B. 838 (N.L.R.B. 1942)

In the Matter Of OHIO VALLEY Bus COMPANY and DIVISION 1171,
AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR
COACH EMPLOYES OF AMERICA, AFFILIATED WITH AFL and TRANS-
PORT WORKERS UNION OF AMERICA AND LOCAL No. 195 THEREOF, SUC-
CESSOR TO UNITED TRANSPORTATION WORKERS LOCAL INDUSTRIAL
UNION 919, SUCCESSOR TO FIRST CITY TRANSPORTATION UNION,
PARTIES TO THE CONTRACT
Case No . C-1914.-Decided January 31, 1942
Jurisdiction : motor bus transportation industry.
Unfair Labor Practices
In General: employer held responsible for activities of "bus dispatchers" and
"supervisors" who are found to possess supervisory authority and who were
regarded by other employees as representatives of management.
Interference, Restraint, and Coercion: threats to withdraw privileges if em-
ployees joined union ; threat to discharge and suspension of one employee
because of belief that he joined union ; assistance to affiliated successor of
dominated union.
Company-Dominated Union: formation of dominated organization to forestall
success of "outside" union drive-assistance in formation and administration
of successor by employees who exhibited subservience to respondent' s wishes
by taking leading part in formation and administration of predecessor organ-
ization-interference by : threats to withdraw privileges if employees joined
"outside" union ; interference with consent election-discrimination : threats
to discharge and suspension of one employee because of belief that he joined
union-indicia : giving credit for pay increase to dominated organization ;
consummation of agreement after cursory negotiations.
Discrimination: discharge and refusal to reemploy of five employees pursuant
to an illegal closed-shop contract with an assisted affiliated organization.
Remedial Orders : cease and desist from recognizing assisted affiliated organ-
ization as exclusive representative of employees until it is certified by the
Board ; closed-shop contract with assisted affiliated organization abrogated ;
reinstatement and back pay awarded to persons discriminated against.
Practice and Procedure : contention of respondent that Board is barred from
inquiry into events occurring prior to consent election conducted by Regional
Director held without merit in view of the fact that respondent persisted in
its commission of unfair labor practices during and after the consent election.
Mr. Alba B. Martin, for the Board.
Vinson, Thompson, Meek, and Scherr, by Mr. John B. Meek, of Hunt-
ington, W. Va., for the respondent.
38 N. L. R. B., No. 153.
838
OHIO VALLEY BUS COMPANY 839
Zimring and Rabe, by Mr. 0. David Zimring and Mr. H. J. Lehman,
of Chicago, Ill., and Mr. C. -E. Bartelbaugh; of Detroit, Mich., and
Mr. Lee `McCaffrey, of Huntington, W. Va., for Division 1171.
Mr. Harry Sacher, of New York City, for the T. W. U. and Local
195.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 18, 1940,E by
Division 1171, Amalgamated Association of Street, Electric Railway
& Motor Coach Employes of America affiliated with American Fed-
eration of Labor, herein called Division 1171, the National Labor Re-
lations Board, herein called the Board, by the Regional Director for
the Ninth Region (Cincinnati, Ohio), issued its' complaint dated
January 27, 1941, against Ohio Valley Bus Company, Huntington,
West Virginia, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (2),'and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent,
Division 1171, Transport Workers Union of America, herein called
the T. W. U., and Transport Workers Union of America, Local 195,
herein called Local 195 2
Concerning the unfair labor practices, the complaint, as amended
in certain minor particulars at the hearing, alleged in substance (1)
that in March 1938 the respondent formed and sponsored First City
Transportation Union, herein called First City, a labor organization,
and during its life dominated it, interfered with its administration,
and contributed to its support; (2) that about November 27, 1938,
First City changed its name to United Transportation Workers Local
Industrial Union 919, herein called Local 919, the latter being the
direct successor of the former; (3) and that about February or March
1940, Local 919 in turn changed its name to Transport Workers
Union of America, Local No. 195, the latter being the direct successor
of Local 919; (4) that the respondent in specified ways interfered
1 The original charge was filed by Division 1171 on April 17, 1940
2 The parties received only 9 days' notice of hearing , but specifically waived any objection
to the notice of bearing
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, influenced, and assisted the formation, organization, and admin-
istration of Local 919; (5) that about March 15, 1939, the respondent
made an agreement with Local 919 to require membership and con-
tinuous good standing in Local 919 as a condition of employment;
(6) that Local 919 and its successor, Local 195, and the T. W. U. have
continuously since March 15, 1939, continued, supplemented, and re-
newed the foregoing agreement; (7) that, by reason of the aid and
assistance granted them by the respondent, Local 919 and its suc-
cessor Local 195 were labor organizations established, maintained,
and assisted by unfair labor practices and that therefore the said
contracts were illegal; (8) that on April 16, 1940, the respondent dis-
charged George Chinn and John Childers, and on September 17, 1940,
Lee McCaffrey, Charles C. McCaffrey, and Roy Workman pursuant to
the said closed-shop contracts since these employees withdrew from
or refused to join Locals 919 or 195 and joined Division 1171; and
that the respondent refused and refuses to reinstate these employees;
and (9) that since the beginning of 1935, the respondent has, by
warning its employees to refrain from aiding or becoming members
of Division 1171; by threatening them with discharge or other re-
prisals if they joined Division 1171, or did not become or remain
members of First City or its successors, Local 919 and 195, by dis-
criminatorily changing its practice in handling "specials and charters
and in instructing new bus operators," and by other acts, interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On February 6, 1941, the respondent filed an answer admitting
certain allegations with respect to its business but denying that it
had engaged in the alleged unfair labor practices. Thereafter, Local
195 filed an answer admitting certain allegations, but also denying
the alleged unfair labor practices; in addition, it set up certain
affirmative defenses.3
Pursuant to notice, a hearing was held from February 6 to 14,
1941, at Huntington, West Virginia, before Samuel H. Jaffee, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the respondent, Division 1171, the T. W. U., and Local 195
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
At the conclusion of the Board's case, counsel for the respondent and
counsel for the T. W. U. and Local 195 moved to dismiss the com-
plaint. The Trial Examiner denied these motions. Again, when
the T. W. U. and Local 195 completed their case, counsel for the
e During the hearing the T. W. U. joined in the answer filed by Local 195
OHIO VALLEY BUS COMPANY 841
respondent renewed the motion, which the Trial Examiner again
denied. At the conclusion of the hearing, counsel for the Board
moved to conform the pleadings to the proof. There was no objection
and the motion was granted. During the course of the hearing
the Trial Examiner made various rulings upon other motions and upon
objections to the admission of evidence . On March 3 , 1941, Division
1171 filed a brief with the Trial Examiner . On May 28, 1941, the
Trial Examiner issued an order admitting certain exhibits in evidence,
and a further order correcting certain errors in the transcript of the
testimony . The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed . The rulings
are hereby affirmed.
On June 27 , 1941 , the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties . He found that
the respondent had engaged in unfair labor practices within the
meaning of Section 8 ( 1), (2), and (3) and Section 2 (6) and (7)
of the Act, and recommended that the respondent cease and desist
from its unfair labor practices and take certain appropriate affirm.
ative action . Thereafter the respondent , the T. W. U., and Local
195 filed exceptions to the Intermediate Report, and the T. W. U.
and Local 195 filed a brief in support of their exceptions . On Sep-
tember 16 , 1541 , pursuant to notice duly served upon all the parties,
a hearing for the purpose of oral argument was held before the
Board at Washington , D. C. The respondent , the T. W. U., Local
195, and Division 1171 appeared by counsel and participated in the
argument. The Board has considered the briefs and the exceptions
to the Intermediate Report and , insofar as the exceptions are in.
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
I. THE BUSINESS OF THE RESPONDENT .
The respondent was incorporated in 1924 under the laws of the
State of Ohio, and has its principal office and place of business in
Huntington , West Virginia , where, since at least January 1, 1935,
it has engaged in the business of transporting for hire as a common
carrier passengers and newspapers in motor busses in the State of
West Virginia , and between points in West Virginia and points
in other States of the United States. During 1940 the respondent's
gross income from the transportation of passengers was $484,000,
of which approximately $56,000 was paid to the respondent for
passage across the boundary between West Virginia and Kentucky.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent occasionally charters or rents busses for special trips
into Ohio, Kentucky, and other States. The gross income from such
business during 1940 was approximately $3,100. The respondent re-
ceived approximately $290 for the transportation of newspapers from
Huntington to other points in West Virginia and to points in Ken-
tucky during 1940. All the respondent's approximately 50 busses
are licensed by the Interstate Commerce Commission, and its ap-
proximately 100 bus operators are periodically given physical exam-
inations in accordance with Interstate Commerce Commission require-
ments.
H. THE ORGANIZATIONS INVOLVED
The Ohio Valley Employees Union, herein called the Employees
Union, was an unaffiliated labor organization admitting to member-
ship employees of the respondent.
Division 1171, Amalgamated Association of Street, Electric Rail-
way & Motor Coach Employes of America, is a labor organization
affiliated with the American Federation of Labor, admitting to
membership employees of the respondent.
Tri-State Transit Union, herein called Tri-State, was an unaffili-
ated labor organization admitting to membership employees of the
respondent.
First City Transportation Union was an unaffiliated labor organ-
ization admitting to membership employees of the respondent.
Transport Workers Union of America, Local 195, is a labor organ-
ization, affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the respondent. It was known
prior to March 1, 1940, as United Transportation Workers Local
Industrial Union 919.
III. THE UNFAIR LABOR PRACTICES
A. The formation of the Employees Union
About May 1937 there was considerable union activity in the city
of Huntington. This caused the respondent to become apprehensive
about the possibility that its employees, theretofore unorganized,
might join an affiliated union. To forestall such an eventuality, the
respondent admittedly undertook to organize an "inside" union. In
this undertaking, William S. Adams, a bus dispatcher having super-
visory authority, took a leading part .4 The evidence is undisputed,
`The record shows that all bus dispatchers in the respondent 's employ possessed super-
visory authority and were regarded by the other employees as representatives of the man-
agement. Among other things , bus dispatchers see that the bus operators report for work
on time and that they are properly dressed and capable of taking out their runs , assign
substitutes on "lay-offs," have the authority to "pull" a man off his run if something goes
OHIO VALLEY BUS COMPANY 843
and we find, that Adams told other employees that Fred W. Sam-
worth, president and majority stockholder of the respondent, would
allow them to have a "company union," but that under no circum-
stances would he tolerate an "outside" union. At the same time,
Adams circulated cards providilig that the signer favored formation
of an organization to be known as the Ohio Valley Employees Union.
He admitted at the hearing, and we find, that in this activity he had
the aid and support of other supervisory employees and that he had
engaged in it because he though it would please "the management."
Regarding the formation of the Employees Union, A. J. Riggall,
the respondent's superintendent of transportation, testified as follows :
Q. (By counsel for the respondent.) As I understand you, then,
Mr. Samworth sought through the organization of the Ohio
Valley Employees Union to forestall any outside or international
unions?
A. Yes; he did.
Q. What was Mr. Samworth's idea toward the outside or inter-
national unions?
A. At that time he was very antagonistic toward outside unions.
Q. And he was your superior?
A. He was.
Q. Did your ideas coincide with his?
A. As a matter of fact they did at that time.
At a meeting of the employees held on June 3, 1937, in the office of
N. C. Long, auditor and office manager of the respondent, the Em-
ployees Union was formally organized and officers were elected.
H. H. Preston, a bus dispatcher, became treasurer. Officers and
supervisors of the respondent were eligible to membership in and
joined the Employees Union, but were special members only for the
wrong, and , in this latter connection , decide whether something is wrong . Adams, in
addition to having the same supervisory authority as other bus dispatchers , occupied a
position of special trust and responsibility in certain respects He frequently selected bus
operators to instruct new drivers . Bus operators generally considered the instruction work
desirable because it enabled them to increase their earnings . Adams customarily performed
certain office work for A. J. Riggall, the respondent 's superintendent of transportation. In
1940 Adams was specifically placed in charge on routine matters of transportation during
occasional absences of Riggall from work, and notices so informing the other employees
were posted on the respondent' s bulletin board We find that the respondent is responsi-
ble for the activities of Adams as well as the other bus dispatchers. International Associ-
ation of Machinists, etc v. National Labor Relations Board, 61 S . Ct. 83, reh. den. Dec. 9,
1940, aff'g 110 F. ( 2d) 29 (App. D. C ) enf'g Matter of The Serrick Corporation and Inter-
national Union, United Automobile Workers of .4inerica, Local No. 459, 8 N L. R B 621;
National Labor Relations Board v . Link Belt Company, etc. 311 U S 584, rev. mod. of
Board's order in 110 F. ( 2d) 506 (C. C. A. 7) enf'g as mod . Matter of Link Belt Company
and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North Amer-
ica, etc., 12 N. L. R B. 854; H J. Heinz Co . v. National Labor Relations Board, 311 U. S.
514, aff. H J. Heinz Co v National Labor Relations Board, 110 F (2d) 843 (C C A. 6)
enf Matter of H J. Heinz Company and Canning and Pickle Workers Local Union No 325,
affiliated with Amalgamated Meat Cutters and Butcher Workmen o f North America, American
Federation of Labor, 10 N L R B 963
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of receiving benefits such as death and illness allowances.
About $2,000 was transferred to the Employees Union from the treas-
ury of the Ohio Valley Employees Welfare Association, a social or-
ganization of all the respondent's employees, of which F. W. Sam-
worth had been president for a number of years.5 The respondent
prepared a meeting place for the Employees Union on the respondent's
premises and furnished it with tables, chairs, and pool and ping-pong
tables. The Employees Union was incorporated on July 22, 1937,
under the laws of West Virginia.
B. Organization of the Amalgamated; the respondent's opposition to
the Amalgamated'
On or about November 1, 1937, organizers of the Amalgamated
Association of Street, Electric Railway and Motor Coach Employees
of America, herein called the Amalgamated,5 appeared in Huntington
and spoke to several of the respondent's employees, including Oscar
Steele, a bus operator. Steele testified that within an hour after a
visit of one of the organizers ,7 Riggall appeared at his home and asked
who had been there to see him. According to Steele, he supplied
Riggall with the desired information and the latter instructed him
to see Samworth the following morning. Steele testified that he did
so and that Samworth told him that if the men organized they would
not receive any more loans, uniforms, or insurance from the respond-
ent and that Samworth instructed him so to inform the other em-
ployees. Riggall did not deny Steele's testimony.' We find that
Riggall and Samworth made the remarks attributed to them by Steele.
Bus operator John Childers met an Amalgamated organizer on
November 11 and again on November 12, 1937, in a Huntington
hotel. On November 13, in the. afternoon, he was suspended from
his run by the respondent and required to remain off duty, without
pay, during the remainder of November 13 and all of the next day.
On November 15 he was allowed to return to work. Ernest S.
Childers, the father of John Childers, testified that in November
1937 he met Samworth in the latter's office;9 that Samworth told
him that he was going to discharge his son for "meddling too much
with the union," and that Samworth then showed him a list of names
5 After the transfer of its funds the Employees Welfare Association ceased to exist
6 As noted below , Division 1171 of the Amalgamated was formally organized and chartered
on November 15, 1937
4 Steele testified that the organizer was accompanied by employees Lark Matthews , Doliver
Jones , and Ostice Le Masters
8 Samworth died prior to the hearing
Insofar as the record discloses , Ernest S Childers was never employed by the respond-
ent. He did not specify the date in November 1937 when he met Samworth , except to
allege that it was on the same day that John Childers was suspended . He testified that
his meeting with Samworth was arranged through the secretary of George B. Martin, an
otherwise unidentified officer of the respondent.
OHIO VALLEY BUS COMPANY 845
which he described as the names of those men who were "causing
him trouble" and said that John Childers' name was at the head of
the list. Ernest S. Childers also testified that he pleaded with Sam-
worth not to discharge his son without further consideration and
that Samworth replied that John had been a good driver and that he
"hated to see him get into trouble" and that, finally, Samworth
agreed that he would only "pull him off his run and not give him
any reason." At the close of the interview, according to the uncon-
tradicted testimony of Ernest S. Childers, Samworth telephoned
Riggall and instructed him to "Pull John Childers off his run when-
ever you can find John. Don't give him any reason for calling him
off." John Childers testified, without contradiction, that when, on
November 13, 1937, he was taken off his run, neither Samworth nor
Riggall would give him any reason for his suspension. Nor did the
respondent offer any explanation for his suspension at the hearing.
We find, as did the Trial Examiner, that the respondent temporarily
suspended John Childers because it considered that he was engaging
in activity on behalf of Division 1171.
Within a few days after the start of the organizational efforts of
the Amalgamated, Samworth summoned the Employees Union bar-
gaining committee,10 and announced a wage raise of 5 cents per hour,
half of the raise to become effective on December 1, 1937, and the
other half to become effective on January 1, 1938. Division 1171
was formally organized and chartered by the Amalgamated on
November 15, 1937. The Amalgamated organizers left Huntington
on December 28, 1937. The first half of the 5-cent raise announced
by the respondent was duly paid on December 1. The remainder of
the increase never went into effect.
C. Fon oration of Tri-State and First City
In March 1938, Division 1171, whose membership up to that time
had been small, began a drive for members. At about the same time,
according to Dispatcher Adams, he and other members of the Em-
ployees Union began to have doubts about the legality of that organ-
ization because supervisory officials were members, its meetings were
held on the respondent's property, and "some of the boys was saying
that we was company dominated." As a result, Adams, Dispatcher
Preston, and others active in the Employees Union, arranged a meet-
ing for March 19 in an outside hall. Roy Workman testified without
contradiction, and we find, that when Adams asked him to attend
the meeting, Adams said that its purpose was to "keep out outside
"The Employees Union bargaining committee was composed of Lee McCaffrey, Milton
Richmond , Frank Raines , and Robert Webster.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations which was getting pretty hot on the company." Bus
operator Paul Conley testified, likewise without contradiction, and
we find, that Adams told him shortly before the meeting that Sam-
worth had been good to the employees, that "they didn't want any
outside union," and that Adams then asked him to join a proposed
new organization to "fight outside unions" and to "help protect Mr.
Samworth and the company."
The meeting was held as scheduled. Frank Raines, president of
the Employees Union, presided. Approximately 35 men attended,
including Dispatchers Adams and Preston and Supervisors W. B.
Church and Earl Lewis 11 The evidence establishes, and we find, that
Charles Jones, a bus operator, and Neil Martin, a garage employee,
made speeches to the effect that the employees should not join an
outside union because Samworth did not want them to join. Those
present voted to form a new organization and to name it the Tri-
State Transit Union. Virgil Bias, a bus operator, was elected
president.
The fact that supervisors and dispatchers were involved in the
formation of Tri-State caused some concern among the members as
to its legality. Accordingly, on the evening of March 28, 1938, a
meeting was held at the home of T. C. Cridlin, a painter employed
by the respondent, which was attended by 30 to 35 employees. Bus
operator Joe Ward testified that just before the meeting he was in
the recreation room on the respondent's property with J. 0. Marcum,
the claim agent and treasurer of the respondent, and a group of other
employees; that some of the employees present started to go to the
meeting at Cridlin's home and asked him (Ward) to accompany
them; that he hesitated to comply and Marcum then advised him,
"Go on with them, Joe. You needn't be afraid. The Company will
take care of all our men." 12 We credit Ward's testimony and find,
as did the Trial Examiner, that Marcum made the remark attributed
to him by Ward.
Virgil Bias, the president of Tri-State, presided at the beginning
of the meeting at Cridlin's home on March 28, but resigned his office
during the course of the meeting. Among those attending the meet-
ing were Dispatcher Adams and Supervisors Church and Lewis.
Adams was accompanied by Shelby Handley, formerly employed
n Supervisors hold positions of greater authority than do bus dispatchers. The super-
visor on duty is located at a central phone box from which he calls bus dispatchers every
half hour to check schedules and operations. Ile has authority to "pull" bus operators off
their runs for violation of rules. Supervisors sometimes ride busses to "check up" on
the bus operators . They also receive and act upon complaints from the public and have
authority to recommend the hiring and discharging of bus operators we find that the
respondent is responsible for the activities of its supervisors . See cases cited in footnote
4, supra.
12 Marcum had died by the time of the hearing
-OHIO VALLEY BUS COMPANY 847
by the respondent as a street-car operator.13 Bus operators Neil
Buckmaster and Wallace B. Harris both testified without contradic-
tion, and we find, as did the Trial Examiner that, when Buckmaster
objected to Handley's presence on the ground that he was ineligible
for membership in a union of the respondent's employees, Adams
insisted that he remain, saying "That will be one more vote; we need
all we can get." Thereafter, Cridlin made a speech in explanation
of the reasons for the meeting. According to the undisputed testi-
mony of Harris, which we credit, Cridlin told those present that
"they had a strong organization * * * There wasn't anything
wrong with their organization but just a little something there they
thought it would be better not to take [into membership] the dis-
patchers and supervisors" and that "they would have to change the
name of the union." Adams, Church, and Lewis thereupon left the
meeting. After some discussion, the name First City Transportation
Union was chosen. Bylaws had already been prepared and were
accepted by those present. Officers were then elected and Neil
Buckmaster was designated as president.
The March 28 meeting of First City was followed by subsequent
meetings within the next few weeks, which were also held at Cridlin's
home. During these meetings, there was discussion as to the money
in the treasury of the Employees Union, which organization had not
yet been formally dissolved. It was decided that it would be unwise
to transfer the treasury to First City. In consequence of this deci-
sion the approximately $2,000 in the treasury of the Employees
Union were distributed among its members. The Employees Union
was then formally disbanded.
In the meantime, Division 1171 had written to the respondent on
March 25 stating that it represented the employees in the operating
department and asking that the respondent meet with it for bargain-
ing purposes. The respondent suggested a meeting on April 11. On
April 11 representatives of Division 1171 and the respondent con-
ferred. Division 1171 claimed majority representation and submitted
a proposed contract containing closed-shop and check-off provisions
and purporting to cover garage employees as well as bus operators.
The respondent stated that First City also claimed bargaining rights,
that a meeting was to be held with its representatives on the next day,
and that the respondent would bargain with whichever union showed
a majority. Division 1171 declined to produce proof of majority at
this meeting, but stated it would submit its records to the Board to
show majority representation. At this time Division 1171 did not
have as members or as applicants for membership a majority of the
bus operators and garage employees.
13 The record is not clear as to Handley ' s employment status at the time of the meeting.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day the respondent met with First City. Proof of major-
ity among the operators and garage employees was furnished. On
April 14, 1938, the respondent and First City entered into a contract
covering its employees exclusive of "officials, foremen, dispatchers,
supervisors, office employees and employees in any managerial capac-
ity." This contract, which was to be in effect for a period of 6 months,
made no material improvement in the wages, hours, or working condi-
tions of the respondent's employees.
Division 1171 about this time asserted that the respondent had vio-
lated the Act in connection with First City and complained to the
Regional Office of the Board. A Field Examiner from the Regional
Office spoke to the parties involved. Thereafter, on May 5, 1938, the
respondent, Division 1171, and First City entered into a consent elec-
tion agreement providing in substance that an election under the
supervision of the Regional Director be held on May 12, among the
bus operators and maintenance men, exclusive of officials, salaried em-
ployees, supervisors, dispatchers, clerical employees, and employees
with the right to hire or discharge, to determine whether they desired
to be represented by Division 1171, by First City, or by neither. This
agreement was also signed by the Field Examiner from the Regional
Office.
A few days before the election Superintendent of Transportation
Riggall told Neil Buckmaster, president of First City, according to
Buckmaster's undisputed testimony, which we credit, that he hoped
that First City would win. A few hours before the election a "pep"
meeting was held by First City, attended by most of its members, then
57 in number. Buckmaster testified without contradiction, and we
find as did the Trial Examiner, that at the meeting he made a speech,
which had been written for him in advance by Riggall, stressing the
advantages of "independent unions" and "harmony between the men."
On May 12 the election was held. The result was as follows :
Alleged eligible votes---------------------------------------- 84
Votes cast------------------------------------------------- 84
For First City---------------------------------------------- 52
For Division 1171------------------------------------------- 31
Challenged-------------------------------------------------- 1
The Regional Director accordingly wrote a letter to the respondent, to
Division 1171, and to First City, stating the result of the election.
Late in August 1938, a contract was entered into between the respond-
ent and First City renewing the existing contract for a period of 18
months, on substantially the same terms.
D. Conclusions with respect to First City
The complaint alleged that in March 1938 the respondent formed
and sponsored First City, and during its life dominated it, interfered
OHIO VALLEY BUST COMPANY 849
with its administration, and contributed to its support. The respond-
ent, the T. W. U., and Local 195, in their answers, denied this allega-
tion of the complaint. We are of the opinion that the allegations of
the complaint as to First City are amply sustained by the evidence.
The respondent's antagonism toward outside unions prior to the
establishment of First City was conceded by Riggall; its participation
in the formation of the Employees Union to forestall such unions was
likewise conceded. Officials, supervisors, and dispatchers of the re-
spondent took a leading part in the formation and administration of
the Employees Union. When Division 1171 first appeared in Novem-
ber 1937, Samworth immediately indicated his hostility to it by making
threats to withdraw certain privileges from the employees if they
joined Division 1171; he threatened to discharge and actually did
suspend John Childers for all of 1 day and part of another because he
believed Childers was active on behalf of Division 1171; and, within
a few days after Division 1171 had commenced an organizational drive,
he promised the employees a raise in pay in such manner that credit
for obtaining it appeared to be due to the efforts of the Employees
Union. He granted a part of the promised increase during Division
1171's membership campaign but failed to grant the balance when
Division 1171 had relaxed its efforts. When Division 1171 began a
second membership drive in March 1938, Tri-State was hastily formed
to forestall the success of the drive. Adams and other dispatchers
and supervisors took a prominent and controlling part in the estab-
lishment of Tri-State. When it immediately appeared that the obvious
activity of the dispatchers and supervisors, among other things, af-
fected the legality of Tri-State, the latter organization was converted
into First City. Marcum, Adams, and other agents of the respondent
were active in the formation of First City. Shortly thereafter, a con-
tract was granted to First City. In May 1938, when the consent elec-
tion was held between Division 1171 and First City, Riggall lent his
aid and assistance to First City by writing the speech Buckmaster
delivered at the "pep meeting" a few hours before the election and by
otherwise expressing his support of First City in the election. Clearly
the respondent's conduct did not permit the employees to exercise the
freedom of choice contemplated by the Act 14 Moreover, First City
14 During the course of the hearing the T. W. U and Local 195 made various objections,
which were overruled by the Trial Examiner, to the admission of evidence of events occur-
ring prior to May 12, 1938, on the grounds that on that date the consent election was
conducted by the Regional Director for the Ninth Region of the Board between First City
and Division 1171 The T W U. and Local 195 contended in their answer, as well as at
the hearing, that the participation of the Regional Director in the consent election barred
the Board from inquiry into events occurring prior thereto. This contention of the
T. W. U and Local 195, and the objections based thereon, lack merit in view of the fact,
as discussed hereinafter , that the respondent persisted in its commission of unfair labor
practices during and after the consent election. See Matter of Hope Webbing Company
and Textile Workers Organizing Committee, etc ., 14 N. L. R. B. 55; Matter of Wickwire
438861-42-vol 38-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was assisted in its formation and administration by employees who
had exhibited subservience to the respondent's wishes 15 by taking a
leading part in the formation and administration of the earlier labor
organizations 16
We find that by the above-described course of conduct the respondent
has dominated and interfered with the formation and administration
of First City Transportation Union, and has contributed support
thereto, and has thereby, and by threatening to deprive its employees
of loans, uniforms, and insurance if they joined Division 1171, by
otherwise warning its employees not to join Division 1171, and by
suspending Childers in November 1937 because of his activity in con-
nection with Division 1171, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
E. Assistance to Locals 919 and 195; the closed-shop contracts; the
discharges
1. Organization of Local 919
By October 1938 there was dissatisfaction among the members of
First City, due to the fact that its grievance committee had been
unsuccessful in effecting, with the respondent, a satisfactory settle-
ment of various grievances 17 The C. I. O. was active in organizing
Brothers and Amalgamated Association , etc, 16 N. L. R . B. 316; Matter of J. Dunitz, etc.,
and Joint Council, etc ., 19 N L. R B 712; and Matter of Wilson & Co. Inc. and Local
Union No. 25, etc., 31 N. L. R. B , No. 69.
15 Cf. International Association of Machinists, etc.. V. National Labor Relations Board,
311 U. S. 72, reh. den 311 U. S. 729, aff'g 110 F (2d) 29 (App D. C ), enf' g Matter of the
Serrick Corporation and International Union, United Automobile Workers of America,
Local No. 459, 8 N. L. R. B. 621.
19 On March 30, 1938, the respondent posted the following notice on its bulletin board :
Dispatchers and supervisors to carefully observe the Law in regard to the Wagner
Law
Our attorneys advise us that according to the findings of the National Labor Rela-
tions Board , especially as noted in the case of the Greyhound Lines, it is prohibited
that dispatchers , supervisors , or other persons "close to the management" express
any preference in the matter of labor organizations or in any other way to discuss
or aid , intimidate or coerce any employee in matters of this kind It is the Com-
pany's policy to observe carefully and strictly the intent of the law and you are
please to follow this policy.
As noted above , and hereafter, the respondent through its supervisory officials and em-
ployees, did not observe the prohibitions specified in the notice . Cf. National Labor Rela-
tions Board v. Swift & Co . 116 F. ( 2d) 143, enf . Matter of Swift & Company and United
Packing House Workers Local Industrial Union #814,15 N. L. R B 992; Matter of Aintree
Corporation and International Ladies Garment Workers' Union, Local No. 373, affiliated with
the American Federation of Labor, 37 N. L R B 1174.
11 Bus operator Frank Raines , former president of the Employees Union and a member
of the bargaining and grievance committees of First City , testified that First City had
attempted to induce the respondent to make certain changes on the defrosting pans and
windshields on its busses and that Samworth had replied that he would consider such
matters "when he could or when he felt like it." Raines mentioned these two specific
matters as examples of grievances First City attempted unsuccessfully to settle.
OHIO VALLEY BUS COMPANY 851
efforts in Huntington during this period and at a meeting of First
City held on October 11 there was some discussion concerning the
possibility of affiliating with a national labor organization. Frank
Raines, who had succeeded Milton Richmond as president of the Em-
ployees Union, and who was then on the bargaining and grievance
committees of First City, spoke to Virgil Bias and others concerning
the C. I. O. Bias had been president of Tri-State. Some years pre-
vious he had been connected with the United Mine Workers of Amer-
ica, affiliated with the C. I. O. Bias was acquainted with John Easton
of Charleston, West Virginia, president of the West Virginia State
Industrial Council of the C. 1. 0.
Early in November 1938, Raines and Bias went to Charleston to
see Easton about "getting into the C. I. 0." Easton told them that
he wanted to see a larger group and agreed to come to Huntington.
In the meantime Bias had interested Buckmaster in the C. I. O. Buck-
master was first opposed to bringing in an "outside organization," but
finally agreed "to string along."
On November 23 Easton came to Huntington. By this time, Raines,
Bias, and Buckmaster had interested three or four other bus operators
in the plan, and the group conferred with Easton at a local hotel.
Easton was told of First City and Division 1171. He told the men
present that he did not wish to interest himself in the formation of
a C. I. O. local "unless you are sold on the fact that you want the
C. I. 0." Buckmaster replied that he wanted a C. I. O. union as the
men were not receiving what they should in regard to pay and working
conditions. As to Division 1171, Easton said, he "didn't want to
buck into somebody else's organization unless the majority wanted"
the C. I. O. and that he did not want to come in "without giving the
AFL boys a free hand in organizing or joining it." The others de-
cided, however, to go ahead with organizing efforts and asked Easton
to send them membership blanks. Easton said that he would send
the blanks, and the meeting adjourned.
On November 25, 1938, the membership blanks from Easton arrived
in Huntington. Buckmaster rented a room in a local hotel and, as-
sisted by Bias and Raines, launched an organizational campaign.
The three men distributed application blanks to some of the employees,
and urged them to sign and to induce others to sign. This organiza-
tional drive led eventually to the formation of Local 919.s
The group obtained approximately 59 signatures on November 25
and 26. A substantial number of these were secured late at night
on November 25 or early in the morning on November 26 in the hotel
"Several of the membership blanks which Buckmaster , Bias, and Raines distributed
were introduced in evidence . These blanks contain the name of Local 919 stamped thereon
as the organization which the signers joined . The evidence does not disclose whether the
name of Local 919 was stamped in before , during, or after the signing of the blanks.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room which Buckmaster, Bias, and Raines used as campaign head-
quarters. Dispatcher Adams was on duty in the dispatcher's office
from 8 o'clock the night of November 25 until 4 o'clock the next morn-
ing. According to their own undisputed testimony, Buckmaster and
Adams arranged between themselves that as the bus operators came
in from their last runs on the night of November 25 or early morning
of November 26 and reported at the dispatcher's office, Adams should
send them to the hotel room. Adams admitted directing 15 to 18
men to the hotel room pursuant to this arrangement and telephoning
Buckmaster "two or three times" during the night to notify him that
various employees were on their way. The evidence is clear that many
of those sent to the hotel room signed membership blanks for the new
organization.
Both Adams and Buckmaster testified that, although they had made
the arrangement described above, they had not discussed Buckmaster's
purpose in wishing to see the bus operators. Furthermore, Adams
denied that at the time he sent the bus operators to the hotel he had
any knowledge that a union was being organized. He explained his
cooperation with Buckmaster as nothing more than a favor which
he would have done for any of the employees. Squarely contradicting
Adams' denial of knowledge as to Buckmaster's purpose is the testi-
mony of bus operator John Childers who alleged that on the night
of November 25 Adams told him that "they are organizing the C. I. 0."
in the hotel room and instructed him to go there. Adams did not
specifically deny Childers' testimony. The Trial Examiner did not
credit Adams' disclaimer of knowledge as to the reason Buckmaster
wished to see the bus operators; nor do we.19 We find that Adams
knowingly aided this organizational campaign of the C. I. 0. by
sending bus operators to the hotel room.
Buckmaster testified that early on the morning of November 26,
John Rule, a bus operator, came to the hotel room and was asked by
Buckmaster, in the presence of John Childers, and T. C. Cridlin, the
only other persons then in the room, to join the C. I. 0. Buckmaster
testified further that Rule refused to join and left the room; that
Buckmaster then telephoned Riggall, the respondent's superintendent
of transportation, at his home and told him that he had been "having
trouble with John Rule" ; and that Riggall replied, "Well, just let
him go ; I will take care of him." Regarding the same incident, John
Childers testified that when Buckmaster asked Rule to join the C. I. 0.
in the hotel room, Rule replied that he "wouldn't do it until he got
"Also tending to discredit Adams' denial of knowledge as to the organization of Local
919 is the testimony of Harry Huxham , a bus operator , that Adams visited him at his home
and asked him to join the C. I. O. Huxham placed the time of such visit only by alleging
that it was the first occasion upon which he heard that the C I 0 leas "coming on the
property ." This incident is discussed in detail below.
OHIO VALLEY BUS COMPANY 853
orders from the boss"; that after some argument on the subject Rule
left the room ; that Buckmaster then announced that he was going to
call Riggall; that Buckmaster made a telephone call and told the
party on the other end of the line that he was "having trouble with
John Rule." Cridlin testified that Rule came into the room while he,
Buckmaster , and Childers were there ; that there ensued a discussion
between Buckmaster and Rule as to whether the latter would join
the C. I. 0.; that Rule left; and that he (Cridlin ) did not overhear
Buckmaster say anything about telephoning Riggall . Cridlin alleged,
however, that he rested on the bed in the hotel room several times
during the night and that he did not pay attention to or remember all
that took place.
Rule denied having been in the hotel room at any time during the
night of November 25 or the morning of November 26. Rule also
denied having at any time told Buckmaster that he would not join
the C. I. 0. He testified affirmatively that shortly before midnight
on November 25 he met Frank Raines on a Huntington street corner
and, at Raines request , signed a membership card for Local 919;
that thereafter bus operator Wallace Harris approached them, and
that both Rule and Raines asked him to sign. Raines corroborated
Rule's account of events on the street corner. Harris, however,
testified that on the occasion under consideration Raines asked him
to sign a card ; that he ( Harris ) refused; and that Rule then said
to him, "Go ahead , Wally, and sign it. If you sign one I will."
Harris persisted in his refusal to sign. A membership card for
Local 919 bearing Rule's signature is in evidence . Although it is
dated November 25 , 1938, the date is obviously not in the same hand-
writing as Rule's signature and Rule admitted that he did not date
the card when he signed it. Under the circumstances, we cannot
accept the date on the card as convincing evidence that Rule signed
it at the time he claimed.
Riggall denied, in substance , having any knowledge as to the
circumstance under which Rule joined Local 919 . He also denied
that Buckmaster telephoned him at his home on the night of No-
vember 25 or on the morning of November 26 , 1938. He qualified
his second denial somewhat by explaining that he is a heavy sleeper
and that he might conceivably be roused from sleep by the telephone,
answer it, and return to bed without thereafter remembering the
incident . Following Riggall 's testimony at the hearing, the night
clerk on duty at the hotel during the night of November 25 and on
the morning of November 26, 1938, was called as a witness. He
identified a telephone call slip kept in the regular course of business
of the hotel showing that at 4:15 a. m. on November 26 , 1938, a
telephone call was placed and completed from the hotel room rented
by Buckmaster to Riggall 's home.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the above record, we find, as did the Trial Ex-
aminer, that Rule was in the hotel room on the night of November
25 or on the morning of November 26, 1938; that he there stated that
he would not apply for membership in Local 919 without "orders from
the boss"; that by "the boss" Rule meant Riggall; that Buckmaster
informed Riggall of Rule's position and Riggall replied that he
would "take care of Rule"; that soon thereafter Rule joined Local
919; and that Riggall induced him to join.
Bus operator Harry Huxham testified that the first time he heard
about the organization of Local 919 was when Adams appeared at
his home and asked him to join, saying that "all the boys were going
in it." Huxham alleged that, without giving a reason, he told
Adams he could not join; that on the next day he went to Rig-
gall and told him of the conversation with Adams; that Riggall
replied that the C. I. O. was an "up and coming union," that he saw
no reason why Huxham could not join it if he wanted to and that
he understood the C. I. O. was "coming on the property." Accord-
ing to Huxham, he then reminded Riggall that when he had been
hired he had given his word of honor not to join an outside or-
ganization and Riggall replied that if that was all that was keeping
him out he could have his "word of honor back." 20 Soon thereafter
Huxham joined Local 919. Adams admitted soliciting Huxham to
join Tri-State, but denied asking him to join Local 919. In view
of the other evidence of Adams' activity on behalf of Local 919, we
do not credit his denial, nor did the Trial Examiner. Although
Riggall denied Huxham's version of the conversation with him, he
admitted that Huxham had come to him and spoken about being
bound by a promise not to join an "outside" organization. Riggall
testified further that, while Huxham may have at one time given
him a promise not to join an "outside" union, he (Riggall) had
never exacted such a promise from Huxham. The fact that Riggall
and Huxham discussed a promise not to join an "outside" union
indicates clearly that their conversation did not occur in connection
with Tri-State or First City. We credit, as did the Trial Examiner,
Huxham's testimony with regard to his conversations with Adams
and Riggall.
The approximately 59 signatures which were secured on behalf
of Local 919 during November 25 and 26, 1938, represented a ma-
jority of the respondent's bus operators and maintenance employees.
" Huxham testified , and we find , as did the Trial Examiner , that in July 1935 , when he
applied to Riggall for a job with the respondent , Riggall asked him if he was a member
of a union , saying that he had given much thought to "this union question " and that he
wanted no trouble ; that Huxham then promised Riggall that he would not join a union,
and that Riggall hired him. Riggall , as stated below , admitted that Huxham may have
given Riggall his promise not to join an "outside" union. He denied having exacted such
a promise from Huxham.
OHIO VALLEY BUS COMPANY 855
After a majority had signed, Buckmaster and several other em-
ployees in the hotel room prepared a suggested "slate" of officers
for Local 919. As noted below, this "slate," with one modification,
was subsequently elected by Local 919.
On November 27, 1938, a gathering attended by about 50 employees,
including a half dozen members of Division 1171, was held at an out-
side hall. Two C. 1. 0. organizers were present. The undisputed evi-
dence establishes the following account of the meeting. It opened
as a meeting of First City, with President Buckmaster presiding.
Buckmaster asked all non-members to leave temporarily. The C. I. O.
organizers and the members of Division 1171 complied with his request.
Those remaining in the room then immediately voted that First City
be dissolved, that its members join Local 919, and that the money
in First City's treasury be used as payment for a charter for Local
919.21 The meeting of First City then officially adjourned. The
C. I. O. organizers and the members of Division 1171 were invited
back in the room, and the meeting was turned over to the organizers
who made speeches inviting all eligible employees to join Local 919,
including the members of Division 1171. Some of the latter asked a
few questions and indicated that they would think the matter over.
The meeting then proceeded to the election of officers. Frank Raines
was elected president; Alva Hagley, vice president; T. C. Cridlin,
recording secretary; Paul Queen, financial secretary; and W. A. Hon-
aker, treasurer. Raines had been second term president of the Em-
ployees Union and a member of its grievance committee; he had also
been a member of the bargaining and grievance committees of First
City. Hagley had been a member of First City's grievance committee.
Cridlin and Honaker had been on First City's bargaining and griev-
ance committees. Queen had been treasurer of First City. In the
election of these men as the first officers of Local 919, the "slate" which
had been agreed upon on November 26 in the hotel room had been
exactly followed with but one variation. The position of secretary,
which had been "slated" to go to Cridlin, was divided ; Cridlin was
elected recording secretary, and Queen financial secretary.
2. The 1939 contracts; other events in 1939
In February 1939, negotiations were opened between Local 919 and
the respondent looking toward the execution of a contract. Upon
Samworth's demand, Local 919 presented proof of majority, consisting
of 61 to 65 membership cards. At that time there were approximately
77 bus operators and 20 maintenance men. These conferences ex-
tended over a period of several weeks. A contract was finally exe-
" The record does not indicate clearly the amount in First City 's treasury . The next
day $25 of it was used to pay for the charter of Local 919. -
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cuted on March 23, although dated March 15, and was immediately
approved at a meeting of Local 919. This contract contained a clause
providing in substance that all employees eligible for membership in
Local 919 then employed or subsequently hired must become mem-
bers of Local 919 within 30 days or be discharged. The contract also
contained, inter alia, a check-off clause, a 2-cent per hour increase in
wages, time and one-half for overtime, and a grievance procedure. It
was provided that the contract was to continue until September 10,
1940, but that further wage adjustments were to be discussed on March
1, 1940. It was taken for granted by all parties, apparently, that the
contract with First City, which did not formally expire until April
1939, had been abandoned.
The provision of the contract between the respondent and Local 919
requiring membership in Local 919 as a condition of employment, did
not meet with the approval of members of Division 1171. They com-
plained to the Regional Director and asserted that Local 919 had been
formed with the respondent's assistance. There was considerable ill
feeling between members of Local 919 and members of Division 1171
during this period. Bus operator Roy Workman testified without
contradiction, and we find, that about the middle of April 1939 Riggall
commented to him on this ill feeling and stated, in substance, that there
would shortly be only one union there-"our union."
Upon the expiration of the 30-day period during which, according to
the terms of the contract of March 1939, non-members of Local 919
were to join that organization or be discharged, 19 members of Divi-
sion 1171 had not joined Local 919. These men were not then dis-
charged. A committee of Local 919 composed of Raines and other
employees went to see John Easton in Charleston on April 22, and
complained to him that the respondent had failed to discharge the 19
men, and that they feared there would be a strike as a result. While
conferring with Easton, Raines received a telephone call from Sam-
worth, who advised him that at the suggestion of the Board's Regional
Director he had posted a notice to employees stating that the "closed-
shop" clause of the contract would be suspended until the matters
arising out of Division 1171's "protest" against the contract were set-
tled by the Board. Easton telephoned to the Regional Director and
explained the situation to him. The Regional Director asked Easton
to try to prevent a strike while he made an effort to adjust the dis-
pute. The employee committee returned to Huntington, where they
advised Samworth that there would be a meeting of Local 919 that
night at which a strike vote would be taken. Easton followed the com-
mittee to Huntington shortly thereafter, and pursuant to his sug-
gestion, the respondent, Easton, and the committee of Local 919, on
that day entered into an agreement temporarily suspending the provi-
sion of the contract requiring membership in Local 919 as a condition
OHIO VALLEY BUS COMPANY 857
of employment, until a conference with the Regional Director was held
during the following week. This meeting had been called by the
Regional Director. The agreement further provided, however, that
anyone joining Local 919 after midnight April 22, would be required
to pay a special additional initiation fee of $15. A copy of this agree-
ment was immediately posted on the respondent's bulletin board.
A meeting of Local 919 was held late the same night at which time
its members refused to accept the terms of the arrangement made
earlier that day, and voted to strike. The strike began on the morning
of April 23. This situation brought Easton back to Huntington, where
he found a Field Examiner of the Board present. A meeting of Local
919 was held the same day and was addressed by Easton and the Field
Examiner. The latter asked the men to return to work and allow
the Regional Director to attempt to adjust the dispute. The men
finally voted to return to work on this basis and the strike was called off.
Discussions between representatives of Local 919 and Division 1171
were then held, in which the Regional Director participated. On
April 27, Local 919 and Division 1171 entered into an agreement pro-
viding, among other things, that the "closed-shop" provision of Local
919's contract "will not be applicable to members of Local 1171 pend-
ing an arbitration to be held on the following question : Is it fair under
all the circumstances to require members of 1171 to be subject to the
said closed-shop provision?" Arbitrators were thereafter selected and
a hearing was held. On July 14, the arbitrators made a finding that
it was not fair to require members of Division 1171 to be subject to the
"closed shop" provision of the contract between Local 919 and the re-
spondent. In accordance with the arbitrators' finding, the approxi-
mately 19 members of Division 1171 employed by the respondent con-
tinued to work without joining Local 919.22
On November 4, 1939, Fred W. Samworth, the respondent's presi-
dent and general manager, died. Colonel J. H. Long, one of the di-
rectors, became president of the respondent on November 16. During
the same month he called in the respondent's executives and told them
that he understood that there had been labor troubles in the past. He
then said that in the future he wanted them to comply with all labor
laws.
During 1939, most of the meetings of Local 919 were held in a
hall belonging to the respondent. Local 919 paid the respondent at
the rate of $1 per meeting for the use of this hall.
3. Local 195; the 1940 contracts; the discharges
As indicated above, the contract between the respondent and Local
919 provided that wage adjustments were to be discussed on March
Counsel for. the Board conceded that the findings and recommendations of the arbitra-
tors do not bind the Board. They were neither offered nor received for that purpose.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1, 1940. Discussions between Local 919 and the respondent began
late in February 1940, and resulted in an agreement dated March 4
providing for an increase of 3 cents an hour for the bus operators
as well as increases for other employees. Meanwhile, during March,
Local 919 was affiliated with the T. W. U. and became known as
Transport Workers Union of America, Local 195. The respondent
was notified of the affiliation and the change of name.
The fact that members of Division 1171 were not required to join
Local 919 in accordance with the contract between the latter organiza-
tion and the respondent, created considerable dissatisfaction among
some members of Local 919 and, on March 11, 1940, caused 27 mem-
bers to withdraw from Local 919 and join Division 1171. On March
11, these 27 men signed a joint petition asking the respondent to
discontinue checking off their dues to Local 919 for the reason that
they had joined Division 1171 "which is our right under the arbitra-
tion board's decision of July 14, 1939." Immediately thereafter, rep-
resentatives of Division 1171 conferred with the respondent, claimed
to represent a majority of the employees, and said that Division
1171 expected to negotiate the next contract. The respondent's presi-
dent, Colonel Long, replied that he considered the contract with the
C. I. O. a solemn obligation and could not break it.
Late in March, Local 195 notified employee George Chinn, one of
its members, to appear before its trial board to answer charges that
Chinn had violated certain provisions of the T. W. U.'s constitution
by, inter alia, advising certain members to withdraw from the T. W. U.
This action created uneasiness among the 27 most recent members
of Division 1171 and Bartelbaugh, a vice president of the Amalga-
mated, who had been active in the affairs of Division 1171, suggested
to them that they rejoin Local 195 because "he preferred to fight for
the men on the job rather than off." They then rejoined Local 195.
On April 12, Chinn was found guilty of the charges against him
and expelled from Local 195. John Childers was likewise expelled
for the same reason. Following such expulsions, Local 195 de-
manded that the respondent discharge Chinn and Childers. In com-
pliance with this demand, the respondent discharged them on April
16, 1940. No action was then taken with reference to other members
of Division 1171 who had refused to join Local 195, and they con-
tinued as employees despite the requirements of the contract.
It was Local 195's interpretation of the arbitrator's findings and
recommendations that they applied only to the 19 then existing mem-
bers of Division 1171, but not to members thereafter acquired. This
position caused representatives of Division 1171 to appeal to the
arbitrators for clarification upon the subject. Two of three arbi-
trators thereupon met and on April 11, 1940, issued a "Clarification
and Interpretation" of the original decision, stating in substance that
OHIO VALLEY, BUS COMPANY 859
the original decision meant to apply not only to employees then mem-
hers of Division 1171, but also to those who thereafter joined.
Although the March 1939 agreement between the respondent and
Local 919, supplemented by the March 1940 agreement, did not expire
until September 11, 1940, a new contract was entered into on May
24, 1940, between the respondent and the T. W. U. and Local 195
superseding the earlier agreements and providing, inter alia, for
additional increases in pay. This contract contained a provision
suspending the provision of the March 1939 and March 1940 contracts
requiring membership in Local 919 or Local 195 as a condition of
employment until September 10, 1940, the date of expiration of the
earlier contracts, insofar as it affected the 19 men who were then
members of Division 1171. This contract was signed by representa-
tives of the parties and 80 members of Local 195.
On September 11, 1940, members of Local 195 refused to work
further with members of Division 1171 and went on strike. This
strike lasted 6 or 7 days during which time the operations of the
respondent were shut down. Conferences were held between repre-
sentatives of the unions, the respondent, and the Board's Regional
Director. Long took the position that he did not want to discharge
any more men until the issue had been passed upon by the Board.
Counsel for the T. W. U. insisted that the contract be enforced.
Long replied that he had tried to treat both unions fairly, that he
wanted the busses to run, and that the strike was "giving the city a
black eye." During the conference, a suggestion was made that a
small number of men be discharged as test cases. This was ap-
parently acceptable, and upon the demand of the T. W. U., bus
operators Lee McCaffrey, Charles C. McCaffrey, and Roy Workman
were discharged on September 17, 1940. The strike was accordingly
celled off. The respondent takes the position that its contracts with
Local 919 and the T. W. U. and Local 195 were valid and that it was
compelled, because of the insistence of Local 195 and the T. W. U.
upon compliance with the contracts, to discharge Childers, Chinn,
Workman, Lee McCaffrey, and Charles C. McCaffrey.23
4. Conclusions
As noted previously, Riggall freely admitted that the respondent
was originally opposed to all "outside" unions. Division 1171 was
the first "outside" union which attempted to organize its employees
and the respondent's antagonism was then specifically directed against
Division 1171. In addition, in order to "forestall" the formation of
23 The respondent announced at the hearing that it was , willing to reinstate the five
discharged employees if Local 195 gave permission.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an "outside" union, the respondent, as we have found, first formed the
Employees Union, then Tri-State and, a few days later, First City.
The respondent's opposition to Division 1171 continued unabated.
In November 1938, certain leaders of First City (such as Buck-
master, president of First City, Raines, a member of its bargaining
and negotiating committees, and Bias, a member of First City, and
president, during its life, of Tri-State, predecessor of First City)
became dissatisfied because First City had failed to secure a satis-
factory disposition of various grievances and turned, not to Division
1171, but to the C. I. 0. The efforts of these employees eventually
led to the formation of Local 919. Local 919 was formally launched
by the official vote of the members of First City at one of its meetings
and the charter of Local 919 was paid for out of the funds of First
City.
When Local 919 opened its drive for members and became, thereby,
a competitor of Division 1171, it was the respondent's duty to main-
tain complete neutrality as between the two organizations seeking
to enroll its employees as members. This was particularly incumbent
upon the respondent since it had in the past openly opposed Division
1171 and dominated and interfered with the organization and ad-
ministration of First City to which Local 919 had succeeded. Instead
of announcing and maintaining neutrality, however, the respondent
not only made no effort to dissipate the effects of its previous unfair
labor practices, but openly assisted Local 919 in its campaign for
members. Thus, Adams, a dispatcher, for whose actions in this re-
spect the respondent is answerable, knowingly and materially aided
Local 919 by sending employees to the organizing headquarters of
that union during the night of November 25 and the morning of No-
vember 26, 1938, and by urging employees to join Local 919; Riggall,
the respondent's superintendent of transportation, aided and assisted
,in the organization of Local 919 by encouraging Buckmaster during
the morning of November 26, 1938, in his efforts to obtain members
for Local 919 and by inducing Rule and Huxham to join Local 919.24
Upon the basis of all the evidence, we find, as did the Trial Exam-
iner, that Local 919 and Local 195 are labor organizations which
have been maintained and assisted by the respondent. We further
find that by maintaining and assisting Local 919 and Local 195 the
24 The complaint alleged that the respondent discriminatori ] y changed its practice in
handling "specials and charters" and in instructing new bus operators . The matter of
"specials and charters" had to do with special trips which were generally regarded as
desirable by the bus operators by reason of extra compensation and for other reasons.
The job of instructing new drivers was also generally regarded as desirable . There was
testimony that prior to the making of the first contract with Local 919, a so-called "rota-
tion system" was put into effect concerning specials and charters which, it was claimed,
resulted in discrimination against Division 1171 members . On all the evidence , however,
we are not convinced that the changes in practice in these connections were discriminatory
under the Act.
OHIO VALLEY BUS COMPANY 861
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. Since
the contracts dated March, 15, 1939, and March 4 and May 24, 1940,
were entered into, as set forth above, by the respondent with Lo-
cal 919 and Local 195, labor organizations which have been aided and
assisted by the respondent, the provisions of the contracts requiring
membership in Local 919 or Local 195 as a condition of employment
cannot, in view of the proviso of Section 8 (3) of the Act, serve as
justification for the discharges of Chinn, Childers, Lee McCaffrey,
Charles C. McCaffrey, and Workman.25
We find, as did the Trial Examiner, that the respondent discharged
George Chinn and John Childers on April 16, 1940, and Lee Mc-
Caffrey, Charles C. McCaffrey and Roy Workman on September 17,
1940, and has since failed and refused to reinstate them because they
failed to join Local 919 or Local 195 and because they joined and
assisted Division 1171 and engaged in concerted activities on its be-
half. We further find that the respondent thereby discriminated in
regard to the hire and tenure and terms and conditions of their em-
ployment, discouraged membership in Division 1171, and encouraged
membership in Local 919 and Local 195, and interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent described in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. We will order it to cease and desist therefrom and
to take certain affirmative action which we find necessary to effectuate
the policies of the Act.
As First City has ceased to function, we will not order the re-
spondent to disestablish First City as a representative of its em-
ployees for the purposes of collective bargaining.
We have found that the respondent aided, encouraged, and as-
sisted Local 919, and Local 195 by various unfair labor practices.
25 Matter of Gerity Whitaker Company and Geritit Adrian Manufacturing Corporation and
Metal Polishers, Buffers, Platers and Helpers International Union , affiliated with the
American Federation of Labor , et al., 33 N. L. R. B, No. 78.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to restore the status quo and to permit the employees full
freedom in self-organization, without hindrance by reason of the
respondent's unfair labor practices, we will order the respondent to
withdraw recognition from Local 195 26 as the exclusive representa-
tive of the respondent's employees for the purposes of collective bar-
gaining, unless and until it shall have been certified as such by the
Board.
The contracts granted to Local 919 and Local 195 requiring mem-
bership in those organizations as a condition of employment were
the culmination and perpetuation of the respondent's unfair labor
practices of encouraging membership in and rendering assistance to
Local 919 and Local 195 while discouraging membership in Division
1171. We will, therefore, order the respondent to, cease and desist
from giving effect to the contracts of March 15, 1939, March 4, 1940,
and May 24, 1940, as well as any extension, renewal, modification,
or supplement thereof, and any superseding contract which may now
be in force.27 Nothing herein shall be taken to require the respondent
to vary those wages, hours, seniority, and other such substantive fea-
tures of its relations with the employees themselves which the re-
spondent established in performance of the contracts as extended,
renewed, modified, supplemented, or superseded.28
We have found that the respondent discriminatorily discharged
George Chinn and John Childers on April 16, 1940, and Lee McCaf-
frey, Charles C. McCaffrey, and Roy Workman on September 17, 1940,
and has since failed and refused to reinstate them because they did
not join Local 919 or Local 195 and because they joined and assisted
Division 1171 and engaged in concerted activities on behalf of Di-
vision 1171. We will order the respondent to offer full and imme-
diate reinstatement to these men and make them whole for any loss
of pay they may have suffered by reason of the respondent's discrim-
ination against them by payment to each of them of a sum equal to
the amount which each normally would have earned as wages from
Local 919 is no longer in existence.
In his Intermediate Report , the Trial Examiner recommended that the respondent
reimburse its employees for all sums of money which the respondent has deducted from
their wages as dues, initiation fees , or assessments for Local 919 and Local 195, pursuant
to its contracts with those organizations We do not believe , however, that , under the
circumstances herein presented , it would effectuate the policies of the Act to require the
respondent to reimburse its employees for money checked off from their wages pursuant
to the contracts.
28 The T. W. U , with which Local 195 is affiliated, was a party to the contract of May
24, 1940. The original complaint named Local 195, but did not name the T. W. U., as a
party to the contract . The answer of Local 195 and the T. W U admitted that the contract
was between the respondent and Local 195 and that the contract required membership in
Local 195 as a condition of employment . During the course of the hearing the complaint
was amended without objection, to include the T. W. U. as a party to the contract. As
previously stated the T. W. U. participated in this proceeding . Our order shall, under
the circumstances , preclude the respondent from giving effect to the contract of May 24,
1940 , with either Local 195 or the T. W. U., with which Local 195 Is affiliated.
OHIO VALLEY BUS COMPANY 863
the date of his discharge to the date of the respondent's offer of re-
instatement, less his net earnings'29 if any, during said period.30
Upon the foregoing findings of fact and upon the entire record in
the case, the Board hereby makes the following :
CONCLUSIONS OF LAW
1. The Ohio Valley Employees Union, Tri-State Transit Union,
First City Transportation Union, and United Transportation Work-
ers Local Industrial Union 919 were labor organizations; and Division
1171, Amalgamated Association of Street, Electric Railway & Motor
Coach Employes of America, affiliated with American Federation
of Labor, and Transport Union of Americo, Local No. 195 are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation and adminis-
tration of First City Transportation Union, and contributing support
to it, the respondent has engaged in unfair labor practices, within the
meaning of Section 8 (2) of the Act. -
4. By discriminating in regard to the hire and tenure of employment
of George Chinn, John Childers, Lee McCaffrey, Charles C. McCaf-
frey, and Roy Workman, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
5. 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 respond-
99 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where 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, 8 N. L. R B. 440. Monies received' for
work performed upon Federal , State, county, municipal , or other work-relief projects shall
be considered as earnings See Republic Steel Corporation v N. L. R. B , 311 U S. 7.
80 See Matter of Monticello Manufacturing Corporation and Steel Workers Organizing
Committee, etc, 17 N. L. R B. 1091 ; Matter of The Serrick Corporation and International
Union, United Automobile Workers of America, etc., 8 N. L. R B 621, enf 'd International
Association of Machinists , etc. v. N. L. R. B., 110 Fed (2d) 29 (C. A of D. C.), 311 U. 8 72
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, Ohio Valley Bus Company, Huntington, West Virginia, and its
officers, agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of any labor organization of its employees , or from contributing
financial or other support to any labor organization of its employees;
(b) Discouraging membership in Division 1171, Amalgamated
Association of Street , Electric Railway & Motor Coach Employes of
America, affiliated with American Federation of Labor, or encour-
aging membership in Transport Workers Union of America, Local
No. 195, or discouraging or encouraging membership in any other
labor organization of its employees , by discriminating in regard to
the hire or tenure of employment, or any term or condition of employ-
ment of its employees;
( c) Recognizing Transport. Workers Union of America , Local No.
195 as the exclusive representative of its employees for the purposes
of collective bargaining , unless and until it shall have been certified
as such by the National Labor Relations Board;
(d) Giving effect to its contracts of March 15 , 1939, March 4, 1940,
or May 24, 1940, with United Transportation Workers Local Indus-
trial Union 919, or Transport Workers Union of America, Local No.
195, or Transport Workers Union of America , or to any extension,
renewal, modification , or supplement thereof, or to any superseding
contract which may now be in force;
(e) Urging, persuading , intimidating , or coercing its employees to
join Transport Workers Union of America, Local No. 195, or to join
or not to join any other labor organization of its employees;
(f) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
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) Withdraw and withhold all recognition from Transport Work-
ers Union of America , Local No. 195 , as the exclusive representative
of its employees for the purpose of dealing with the respondent con-
cerning grievances , labor disputes , wages, rates of pay, hours of em-
ployment, and other conditions of employment , unless and until it
shall - have been certified as such by the National Labor Relations
Board ;
(b) Offer to George Chinn, John Childers , Lee McCaffrey , Charles
C. McCaffrey , and Roy Workman immediate and full reinstatement to
OHIO VALLEY BUS COMPANY 865
their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges ;
(c) Make whole the employees named in paragraph 2 (b) above
for any loss of pay they may have suffered by reason of their respec-
tive discharges, by payment to each of them of a sum of money equal
to that which each normally would have earned as wages from the
date of the discharge to the date of the offer of reinstatement, less his
net earnings, if any, during said period ;
(d) Post immediately in conspicuous places throughout its place
of business in Huntington, West Virginia, and in its garages therein,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the respond-
ent will not engage in the conduct from which it has been ordered to
cease and desist in paragraph 1 (a), (b), (c), (d), (e), and (f) of
this Order; that it will take the affirmative action set forth in para-
graph 2 (a), (b), and (c) of this Order; and that the respondent's
employees are free to become or remain members of Division 1171,
Amalgamated Association of Street, Electric Railway & Motor Coach
Employes of America, affiliated with American Federation of Labor;
and that the respondent will not discriminate against any employee
because of membership or activity in that organization;
(e) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
438861-42-vol 38-56