Public Service Corp. of New Jersey

National Labor Relations Board - Board Decisions

Apr 20, 1948

77 N.L.R.B. 153 (N.L.R.B. 1948)

In the Matter Of PUBLIC SERVICE CORPORATION or NEw JERSEY, PUBLIC
SERVICE COORDINATED TRANSPORT, PUBLIC SERVICE INTERSTATE
TRANSPORTATION COMPANY and UNITED TRANSPORT WORKERS OF
AMERICA
Case No. 93-C-6306.-Decided April 20, 1948
Mr. John J. Cuneo, for the Board.
Mr. Raymond Schroeder , of Newark , N. J., for the respondents.
Mr. O. David Zimring, of Washington , D. C.; Mr . M. Herbert Syme,
of Philadelphia , Pa.; and Messrs. P. J. O'Brien, C. D. Ciechino, and
Arthur Appleton , of Newark , N. J., for the Amalgamated.
Mr. Myles D. Kennedy , of New York City , for the United.
DECISION
AND
ORDER
On February 25, 1947, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondents had engaged in and were engaging in certain unfair labor
practices 1 and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the respondents
and the Amalgamated filed exceptions to the Intermediate Report,
briefs in support of their exceptions, and supplemental briefs in lieu
of oral argument.2
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modifications set forth below.
'The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which
the Trial Examiner found the respondents had violated, are continued in Section 8 (a) (1)
and 8 (a) (3) of the Act as amended by the Labor Management Relations Act, 1947
9 On March 12, 1947, the Board granted the respondents' request to argue orally before
the Board, but rescinded its action on December 30, 1947, with leave to the parties to
file supplemental briefs or written arguments, setting forth any matters which would
have been covered in oral argument
77 N.L.R B,No.21. 153
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found that the respondents violated Section
8 (1) of the Act. We agree. In adopting the Trial Examiner's ulti-
mate finding, however, we deem it unnecessary to rely upon the conduct
of certain managerial and supervisory personnel of the respondents in
observing two meetings of the employees in July 1943 at the Junior
Order Hall in Hackensack and the Painters Union Hall in Englewood.
We base our finding of independent violations of Section 8 (1) solely
upon the following activities of certain of the supervisory employees of
the respondents : the threatening statement made by assistant depot
master Belknap on March 19, 1946, to employees at the respondents'
Englewood garage; the unlawful interference of supervisor Moder-
sohn with the activities of Altana, an organizer for the United, at the
respondents' Englewood garage on March 21, 1946; 3 and the unlawful
surveillance by garage foreman Dick of the organizational efforts of
Altana among garage mechanics at Hackensack on March 23, 1946.
Ave find, as did the Trial Examiner, that the activities enumerated
above, and discussed in detail in the Intermediate Report, constitute
interference, restraint, and coercion within the meaning of the Act and
that these activities are attributable to the respondents because of the
positions and duties of Belknap, Modersohn, and Dick.
2. The Trial Examiner found that the respondents violated Section
8 (3) of the Act by suspending Frederick C. Sconfienza from employ-
ment. In so finding he rejected the respondents' contention that their
conduct in suspending Sconfienza was required by a contract with the
Amalgamated which is protected by the proviso to Section 8 (3). We
agree with the Trial Examiner's finding of discrimination but do not
pass upon all of the alternative theories by which he arrived at this
finding.
The Trial Examiner concluded that the collective bargaining con-
tract between the respondents and the Amalgamated did not require
the termination of Sconfienza's employment because Sconfienza had
not been expelled from membership in the Amalgamated, but had only
been suspended from membership in good standing. He further con-
cluded that the contract in question was not the type of agreement
contemplated by the proviso to Section 8 (3), because the contract
covered only employees who were members -of the Amalgamated. We
find it unnecessary to pass upon these issues. Assuming that the con-
tract required the respondents to terminate the employment of an em-
ployee suspended from membership in good standing in the Amalgam-
ated, and assuming that the contract is the type of agreement which
3 In evaluating Modersohn 's conduct on this occasion we have given no consideration
to the remarks which he made to Holden , an organizer for the United , in front of the
respondents ' property at Cresskill about March 21, 1946.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 155
falls within the ambit of the proviso, the contract does not protect the
respondents in the suspension of Sconfienza under the principles enun-
ciated in the Rutland Court case 4 and related decisions of the Board.
The facts of this case, fully recited in the Intermediate Report,
reveal that Sconfienza, toward the end of the term of the bargaining
contract between the respondents and the Amalgamated, engaged in
organizational activity on behalf of the United, reasonably calculated
to bring about a change of representatives at an appropriate time.
We find, as did the Trial Examiner, that this timely activity of Scon-
fienza on behalf of the United was an operative reason for the Amal-
gamated's action in suspending Sconfienza from membership and re-
questing his suspension from employment. We further find, as 'did
the Trial Examiner, that the respondents were aware of this reason
for the Amalgamated's action when they acceded to the Amalgamated's
request that ,Sconfienza be suspended from employments Thus on
April 24, 1946, when the Amalgamated made its demand that the
respondents suspend Sconfienza, President McCabe of the Amalga-
mated informed Personnel Manager Fields and General Manager
Warner that dual unionism was one of the reasons why Sconfienza
had been suspended from membership. In addition, the respondents
knew that the United was attempting to organize their employees and
that Sconfienza was participating in the United's campaign.
Upon all the facts we are convinced that the Rutland Court doc-
trine is here controlling and that by suspending Sconfienza from
employment upon the request of the Amalgamated the respondents
discriminated against Sconfienza within the meaning of Section 8 (3)
and8 (1) of the Act.
,ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondents, Public Service
Coordinated Transport and Public Service Interstate Transportation
4 Matter of Rutland Court Owners, Inc , 44 N L R B . 587 ; 46 N . L. R. B. 1040
5 The Amalgamated contends that it requested the suspension of Sconfienza from em-
ployment not only because of his dual union activity , but also for reasons unrelated to
such activity . Although the Amalgamated did bring charges in addition to dual unionism
against Sconfienza at the time of his suspension, we agree with the Trial Examiner that
the Amalgamated ' s demand for the suspension of Sconfienza from employment was in-
duced in substantial part by the dual activity of Sconfienza and would not have occurred
but for that activity See Matter of Durasteel Company , 73 N. L . R. B. 941.
6 In view of our finding that the respondents had notice at this time that the Amalga-
mated 's request for the suspension of Sconfienza was based in substantial part upon dual
unionism , we find it unnecessary to consider the obligation of the respondents upon receiv-
ing a letter from an attorney for the United , after Sconfienza was suspended from em-
ployment , asserting that Sconfienza ' s activity on behalf of the United was the basis for his
suspension
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Newark, New Jersey, and their officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the United Transport Workers
of America, unaffiliated, or any other labor organization of their em-
ployees, or encouraging membership in the Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of America,
affiliated with the American Federation of Labor, by discharging or
refusing to reinstate any of their employees, or by discriminating in
any other manner with respect to their hire or tenure of employment
or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Transport Workers
of America or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities 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) Offer Frederick C. Sconfienza immediate and full reinstate-
ment to his former or a substantially equivalent position, without pre-
judice to his seniority or other rights and privileges;
(b) Make whole Frederick C. Sconfienza for any loss of pay he may
have suffered by reason of the respondents' discrimination against him,
by payment to him of a sum of money equal to the amount he normally
would have earned as wages during the period from April 24, 1946,
the date of his suspension from employlent, to the date of the respond-
ents' offer of reinstatement, less his net earnings during such period;
(c) Post throughout their transportation system in the State of
New Jersey, at all places of business where their employees are en-
gaged, copies of the notice attached hereto and marked "Appendix
A."' Copies of said notice, to be furnished by the Regional Director
for the Second Region, after being duly signed by the respondents'
representatives, shall be posted by the respondents immediately upon
receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondents to insure that said notices are not altered,
defaced, or covered by any other material;
I In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words "A Decision and Order ," the words : "A Decree of the
United States Circuit Court of Appeals Enforcing."
PUBLIC SERVICE CORPORATION OF NEW JERSEY 157
(d) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
MEMBER GRAY, concurring in part and dissenting in part:
I agree that the respondent violated Section 8 (1) of the Act by
the conduct recited in the opinion of the majority. I dissent, how-
ever, from that portion of the Board's Order which is based upon the
finding of the majority that the respondent violated the Act by sus-
pending Sconfienza from employment upon the request of the Amal-
gamated.
The respondent and the Amalgamated have negotiated and operated
under collective bargaining contracts for more than a quarter-century
and have thereby attained that stability in labor relations which the
statute seeks to achieve. During the period in question all the
respondent's employees were members of the Amalgamated although
the contract then in force provided, only for maintenance-of-member-
ship. The majority assumes the validity of this contract and that it
required the respondent to terminate the employment of an employee
suspended from membership in good standing in the Amalgamated.
Sconfienza, who in my opinion was more concerned with creating dis-
sension at the plant than in securing proper and adequate collective
bargaining representation for the employees, was suspended from
good standing in the Amalgamated which then called upon the
respondent to honor its contractual obligation. In suspending Scon-
fienza from employment, the respondent did no more than enforce
its maintenance-of-membership contract which the majority assumes
falls within the ambit of the proviso to Section 8 (3) so as to consti-
tute a valid defense to a discharge for failure to adhere to membership
in the Amalgamated.
Under all the circumstances, I would dismiss the complaint insofar
as it alleges that the respondent discriminated against Sconfienza
within the meaning of Section 8 (3) and (1) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in the UNITED TRANSPORT
WORKERS or AMERICA, unaffiliated , or any other labor organiza-
tion of our employees , or encourage membership in the A-mALGAM-
ATED ASSOCIATION or STREET , ELECTRIC RArLwAY AND MOTOR COACH
EMPLOYEES OF AMERICA , A. F. OF L., by discharging or refusing
to reinstate any of our employees , or by discriminating in any
other manner with respect to their hire or tenure of employment
or any term or condition of employment.
WWTE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
UNITED TRANSPORT WORKERS OF AMERICA or any other labor or-
ganization , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employee named below immediate and
full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make him whole for any loss of pay
suffered as the result of the discrimination against him.
Frederick C. Sconfienza
PUBLIC SERVICE COORDINATED TRANSPORT,
Employer.
Dated -------- - By -------------------------------------------
(Representative ) ( Title)
PUBLIC SERVICE INTERSTATE TRANSPORTA-
TION COMPANY,
Employer.
Dated --------- By -------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. John J. Cuneo, for the Board.
Mr. Raymond Schroeder, of Newark, N. J., for the respondents.
Mr. O. David Zinaring, of Washington, D. C.; Mr. M. Herbert Syme, of Phila-
delphia, Pa.; and Messrs. P. J. O'Brien, C. D. Ciechino, and Arthur Appleton, of
Newark, N. J., for the Amalgamated.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by the United Transport Workers of
America, unaffiliated, herein designated as United, the National Labor Relations
PUBLIC SERVICE CORPORATION OP NEW JERSEY 159
Board, herein called the Board, by its Regional Director for the Second Region
(New York, New York), issued its complaint, dated July 1, 1946, against Public
Service Corporation of New Jersey, Public Service Coordinated* Transport, and
Public Service Interstate Transportation Company; herein called Respondent
Public Service, Respondent Coordinated, and Respondent Interstate, respectively,
and designated collectively as the respondents ; alleging that the respondents 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
National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the
complaint, the first amended charge and notice of hearing thereon were duly
served upon the respondents, United, and the Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, affiliated with the
American Federation of Labor, herein designated as Amalgamated.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that the respondents, on or about May 13, 1946, discharged Fred Sconfienza
and have since failed and refused to reinstate him, because of his membership
in United and his assistance to that organization; and (2) that the respondents,
from July 1943, to date, have (a) vilified, disparaged and disapproved of United,
(b) questioned employees about their union affiliation, (c) urged, persuaded, and
warned employees to refrain from assisting or joining United, (d) threatened
employees with discharge or other reprisals if they joined or assisted United, and
(e) kept under observation and surveillance the meeting places, meetings and
activities of United, or the concerted activities of its employees for the purpose
of self-organization or improvement of their working conditions-all for the
purpose of discouraging membership in United and encouraging membership in
Amalgamated, in violation of the Act
Thereafter on July 12, 1946, the respondents filed an answer, in which they
admitted certain allegations of the complaint with respect to the identity and
business operations of the respective enterprises named therein, denied others,
and further denied the commission of any unfair labor practices.
Pursuant to notice, a hearing on the complaint was held at New York, New
York, on various dates from July 17 to August 2, 1946, both dates inclusive,
before the undersigned, Maurice M Miller, the Trial Examiner duly designated
by the Chief Trial Examiner The Board, the respondents, United and Amal-
gamated were represented by counsel, and participated in the hearing.' At the
opening of the hearing, a petition for leave to intervene, previously filed on
behalf of Amalgamated with the Acting Regional Director of the Second Region,
was granted by the undersigned, "to the extent that the interest of the intervenor
may appear throughout the course of the hearing." All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesse, and to
introduce evidence pertinent to the issues. During the presentation of the Board's
case, counsel for the respondents presented a general motion to dismiss the
complaint, which was denied by the undersigned. At the conclusion of the
Board's case, counsel for the respondents presented a series of motions: (1) to
dismiss the complaint as to Respondent Public Service, on the ground that its
status as an employer for the purposes.of this proceeding had not been estab-
' Mr Pesin , principal counsel for United , took no active part in the proceedings after the
second session of the hearing, and subsequently withdrew from the case Shortly there-
after, Mr. Chasan, who had also appeared and participated on behalf of the charging union,
similarly withdrew from the case . Mr. Oliver , counsel for Amalgamated , was replaced by
Mr Syme on the third day of the hearing The changes mentioned , all of which weue
effected without objection , are noted upon the record
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lished,by the record; (2) to dismiss the allegations of the complaint with respect
to the discharge of Sconfienza; (3) to strike certain testimony with respect to
events which occurred in 1943, on the ground that they were outside the issues
of the complaint and beyond the purview of Section 7 of the Act; (4) to dismiss
the general allegations of the complaint with respect to interference, restraint
and coercion; and (5) to dismiss the entire complaint for lack of proof The
motions were denied with leave to renew. At the close of the testimony, counsel
renewed the aforesaid motions. Rulings upon the motions were reserved by
the undersigned. They are considered below. At the close of the hearing,
counsel for the Board moved to conform the complaint to the proof with respect
to formal matters. No ruling upon the motion appears in the official transcript.
It is hereby granted In addition, at the conclusion of the hearing, counsel for
all the parties, together with the undersigned, engaged in an informal discussion
of the issues. The parties were granted 3 weeks within which to file briefs
Briefs have been received from the respondents and Amalgamated.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Public Service Corporation of New Jersey, Public Service Coordinated Trans-
port, and Public Service Interstate Transportation Company are corporations
duly organized under the laws of the State of New Jersey and maintain their
principal offices in that State within the City of Newark.
Repondent Coordinated, although organized in January of 1928 shortly after
the incorporation of Respondent Interstate, owns the entire outstanding capital
stock of the latter company. Both respondents also operate under a single,
unified management, with identical directors and officers. Together, the com-
panies operate and maintain a completely integrated system of public passenger
transportation, effective throughout the State of New Jersey.
Respondent Public Service, however, operates exclusively as a holding com-
pany. As such, it owns or controls the capital stock of several gas, electric
utility, and transportation companies which operate within the State of New
Jersey, including that of Public Service Coordinated Transport. The company
maintains its office in Newark upon the premises shared by Respondents Coordi-
nated and Interstate. Seven of its directors also serve in a similar capacity on
the single board which acts for these subsidiary corporations. In addition, its
executive officers are identical with those of Coordinated and Interstate, ex-
cept for two vice presidents who act exclusively for the subsidiary companies and
maintain no official connection with the parent corporation. Despite the degree
of integration thus established by the record, however, there is no indication that
Respondent Public Service, by virtue thereof, exercises any immediately effective
control over the operations of the two subsidiary corporations; and the under-
signed makes no finding to that effect.
As of December 31, 1945, Respondent Coordinated maintained a staff of approxi-
mately 5,000 employees, and operated 2,670 vehicles over 163 routes, all within the
State of New Jersey. In the calendar year which ended on that date, Respondent
Coordinated purchased supplies, consisting principally of gasoline, fuel oil, lubri-
cants, tires, tubes and repair parts,.valued in excess of $7,500,000, operated its
vehicles over more than 72,400,000 miles of roadway, and carried approximately
532,000,000 passengers for revenue. Gross income of the Company from the oper-
PUBLIC SERVICE CORPORATION OF NEW JERSEY 161
ation of its transportation system approximated $30,300,000 for the year. During
the calendar year in question, also, the company purchased electrical energy
valued at approximately $700,000 from Public Service Electric & Gas Company,
another subsidiary of Respondent Public Service, all of which, however, was pro-
duced and delivered to Respondent Coordinated within the State of New Jersey.
During the calendar year, Respondent Coordinated received income of approxi-
mately $260,000 for the display of national advertising in the streetcars and busses
operated by it on the routes which it maintains, and approximately $400 in addi-
tion for the transportation of United States mail. The company currently main-
tains offices, shops, garages and terminal facilities at 43 points within the State
As of December 31, 1945, Respondent Interstate maintained a staff of approxi-
mately 2,000 employees, and operated approximately 1,000 busses over 57 routes,
serving 16 counties within the State of New Jersey and providing interstate trans-
portation from various points within the State to New York City and Philadel-
phia, Pennsylvania In the calendar year of 1945 the company operated its ve-
hicles over approximately 38,500,000 miles of roadway and carried approximately
124,000.000 passengers for revenue, deriving a gross income of approximately $16,-
000,000 from the operation of its transportation system. Approximately 43 per-
cent of the revenue aforesaid was derived from the transportation of passengers
across state lines, about $175,000 of that income being derived from chartered bus
service outside the State of New Jersey. Within the period under discussion,
Respondent Interstate pia chased materials and supplies, similar to those acquired
by Respondent Cooidinated, valued in excess of $3,000,000 and also purchased ap-
proximately $60,000 worth of electrical energy from Public Service Electric & Gas
Company, all of which, however, was produced and delivered to Respondent Inter-
state within the State of New Jersey As is the case with Respondent Coordinated,
the company transports United States mail, and derived approximately $400 of
income from this source during the calendar year of 1945. National advertising
is displayed upon the vehicles operated by the company, and 22 percent of the
revenue derived by Respondent Coordinated from such display is allocated to the
income account of Respondent Interstate. The company maintains garages and
terminal facilities at 30 points within the State, of which an undetei aimed num-
ber are maintained in conjunction with Respondent Coordinated
Although Respondent Interstate concedes that it is engaged in interstate coin-
merce, and that it is subject, therefore, to the requirements of the Act, Respondent
Coordinated makes no similar concession, and contests the jurisdiction of the
Board
Each of the companies in question admits that a number of its lines either pass
or terminate at stations operated by the several railroads which serve the State
of New Jersey. These include the Pennsylvania Railroad; the Erie ; the New
York, Susquehanna and Western ; the Lehigh Valley ; the Central Railroad
Company of New Jersey ; the New York, Ontario and Western ; the Delaware,
Lackawanna and Western; and the Pennsylvania-Reading Seashore Lines. The
respondents maintain no record of the passengers who board interstate railroad
facilities at the terminals or stations of the railroads listed ; it was conceded,
however, at the hearing, that a proportion of the passengers on the routes of
Respondents Coordinated and Interstate do employ the facilities of these com-
panies for the purpose of securing access to other transportation facilities, en-
gaged in interstate commerce. Again, although the companies insisted that no
records were maintained as to the proportion of their supplies which are secured
from points outside the State, it was conceded at the hearing that Respondents
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coordinated and Interstate "may" get oil and gas within the State which "may"
have come from points outside the State. The undersigned so finds.
Respondents Coordinated and Interstate both admit that routes which they
maintain provide regular service to a number of large industrial establishments
throughout the State of New Jersey. Twenty-four establishments, with em-
ployees of 4,000 and over in number, have been listed in this connection by the
respondents.2 All but one of the industrial enterprises listed have been found
by the Board, in prior proceedings, to be engaged in interstate commerce.' Both
respondents also admit that they were subject to the jurisdiction of the Office
of Defense Transportation throughout the period of the war emergency.
At joint operating points-terminals or garages from which the busses owned by
Respondent Coordinated and busses owned by Respondent Interstate operate
jointly-individuals employed as operators or maintenance personnel frequently
work for both respondents, shifting from the equipment of one company to that
of the other at different times. In all such cases, each respondent pays directly
for work done Supervisory personnel at such joint operating points, however,
receive their pay from both of the companies involved in the operation. Ac-
cording to the general manager of Respondents Coordinated and Interstate, such
individuals receive a single check; they are listed, however, as the employees of
both respondents, and the amount of the salary payment involved is divided
between the two corporations in a proportion equal to that of their respective
gross revenues for the pay-roll period involved.
Upon the entire record-including, but without limitation, the available evi-
dence with respect to the operations of Respondent Coordinated in aid of the
1 See following table
Company Em-ployees
Passen-
gers Source
Bethlehem Steel Company. Hoboken ----------------------------- 4,263 3,100 Plant
Tietlen & Lang Drv Dock Company, Hoboken ------------------- 4 000 2,560 Do
Weston Electrical Company, [sin] Newark ------------------------ 4,150 1,618 Do
Federal Shipbuilding and Dry Dock Company, Kearny ---------- 29,600 8,000 Do
Western Electric Company, Kearny ____________________________ 22 000 6,600 Do
Westinghouse Electric Mfg Company, Bluefield ----------------- 6,222 2,488 Do
Radio Corporation ofAmerica, Harrison -------------------------- 7,249 3,480 Do
Crucible Steel Company of America, Harrison -------------------- 9,700 2,637 Do
Federal Shipbuilding and Dry Dock Company, Newark --------- 7,193 1,510 Do
Curtiss-Wright Corporation (Propeller Division), Caldwell ------- 4,092 615 Do
Botany Worsted Mills, Passaic ----------------------------------- 6,200 1,860 Do
Wright Aeronautical Corporation, Plant No 1, Paterson ---------- 11,450 2,633 Do
Wright Aeronautical Corporation, Plant No 2, Paterson_________ 6,6,% 1,263 Do,
Wright Aeronautical Corporation, Plant No 3, Fairlawn --------- 4, 775 1,003 Do
Wright Aeronautical Corporation, Plant No 4, Paterson ---------- 5,525 1,326 Do.
Singer Manufacturing Company, Elizabeth ----------------------- 6,800 1 , 960 Do.
General Motors Corporation, Linden___________________________ 6, 700 670 Do
Standard Oil Company of New Jersey, Linden___________________ 4,600 1,150 Do,
Radio Corporation ofAmerica,Camden -------------------------- 12,426 5,000 Do,
Campbell Soup Company, Camden ------------------------------ 4,500 2,700 Do.
New York Shipbuilding Corporation, Camden___________________ 30,050 8,400 Do,
E I Dupont de Nemours and Company, Perms Grove ----------- 6, 137 1,166 Do
John A Roebling's Son's Company, Roebling -------------------- 4,200 420 Do,
Bendix Aviation Company, Bendix _______________________________ 4,913 1,475 Do
U S Naval Depot, Bayonne_____________________________________ 5,100 2 142 Do
Raritan Arsenal, Raritan township ------------------------------- 8,862 2,747 Do
Picatinny Arsenal, Rockaway____________________________________ 15,000 4,900 Do
I In 16 instances the industrial establishments served by the respondent companies have
been involved directly in proceedings before the Board , in each such case it was found by
the Board that the enterprise involved was engaged in interstate commerce In seven
instances , the records of the Board contain no reference to proceedings which involved
the specific establishment serviced by the respondent companies , but show Instead that the
enterprises which own and operate the establishments aforesaid have previously been found
subject to the requirements of the Act.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 163
activities in commerce of the enterprises which it serves, and the evidence which
established its close relationship to the operations of Respondent Interstate-
the undersigned concludes and finds that Respondent Coordinated, contrary to its
expressed contention, is engaged in commerce within the meaning of the Act.'
The record, however, contains no indication that Respondent Public Service
exercises any immediate control over the operation of Respondents Coordinated
and Interstate. Since it appears that Respondent Public Service functions ex-
clusively as a holding company, exercises no direct control over the operation of
its subsidiary corporations, and takes no active part, as such, in the formulation
or application of their labor policy, the undersigned finds that the motion for
dismissal made on behalf of this respondent has merit ; and the motion is hereby
granted.'
Ii. THE ORGANIZATIONS INVOLVED
The Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America, Division 819, 820, 821, 822, 823, 824, 825, 862, SSO and 947,
affiliated with the American Federation of Labor, constitute labor organizations
which admit to membership employees of the respondents.
The United Transport Workers of America, unaffiliated,' was incorporated
under the laws of the State of New Jersey on February 26, 1946, and held its
initial meeting on the 10th of March. Its constitution, formally adopted by vote
of the membership on March 25, 1946, specifically provides that the organization
shall concern itself with matters affecting the general interest of the member-
ship, such as the establishment and enforcement of working contract rules
governing hours, wages, and conditions of work, the conduct and settlement of
strikes, and the establishment of a pension fund. The document also contains
provision for the organization of affiliated locals, and further provides for the
election by such locals of delegates to a district council. Provisions with respect
to applications for membership, initiation fees and the payment of dues and
per capita taxes are included. In addition, the constitution contains elaborate
provisions with respect to the election of officers, business agents and shop stew-
ards, their duties and responsibilities, the qualifications of delegates to the dis-
trict council, and the various powers delegated to that organization.
Officers of the United Transport Workers of America, as designated in its
constitution, have already been elected by the membership, and, so far as the
record shows, have already begun to function in their behalf. Membership
meetings of the organization have been held at frequent intervals since the date
of its formation.
Counsel for the Amalgamated argued strenuously at the hearing, and in his
brief, that United had been organized to promote the personal interest of its
incorporators, that the circumstances of its incorporation differentiated it from
conventional trade unions, that its officers were irresponsible, and that it was
not, in sum, the type of labor organization contemplated by the Act. Upon
4 Matter of the Baltimore Transit Company , 47 N L. R. B 109 , enforced 140 F. (2d) 61
(C C A. 4) , Bert den. 321 U. S 795 ; Matter of Turner Transportation Company,
N L R B 87, cf Matter of Trans-Bridge Lines Inb., 63 N. L R B. 807.
60
5 The collective designation of the employer interests involved in the instant case as the
"respondents" will be used in the balance of this report to refer to Respondents Coordi-
nated and Interstate only , and will involve no reference to Respondent Public Service
unless that corporation is expressly named.
° Martha Davis , president of the organization , identified it as affiliated with the Shipyard
Workers of America. There is no indication, however, that the latter organization is a
parent organization with respect to United.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
the basis of this contention, counsel argued further that United has no rights as a
party to the instant case. The basic contention advanced by counsel for Amalgam-
ated is clearly without merit Whatever the internal structure and purpose of
the organization may be, it fulfills the requirements of the statute.' The evidence
cited by counsel for Amalgamated, in his argument and related offers of proof,
must be considered irrelevant to any determination of the matter in issue.' It
is established by the record that United admits to membership employees of
the respondent companies, and exists for the purpose of dealing with them in
regard to "grievances, labor disputes, wages, rates of pay, hours of employ-
ment and conditions of work" affecting the persons in their employ. The under-
signed accordingly concludes and finds that United Transport Workers of
America, unaffiliated, is a labor organization within the meaning of the Act.'
III. THE UNFAIR LABOR PRACTICES
A. The organszattonal structure of the respondents
The operating personnel of Respondents Coordinated and Interstate is under
the general direction and supervision of James Al. Symington, vice president
in charge of operations for both of the respondent companies. Immediately
subordinate to Symington are live assistants, designated respectively as the gen-
eial manager, assistant vice president in charge of operations, sales general
manager, personnel manager, and chief engineer Each of the five individuals
under discussion acts in a dual capacity, similar to that of Symington, and per-
forms the functions of his particular office for both respondent companies
The respondents maintain seven operational divisions within the State of
New Jersey. Each division is headed by a division manager, responsible gen-
erally to the vice president in charge of operations and also to each of the
specialized department heads already listed. In the Bergen Division, with which
this proceeding is primarily concerned, the division manager of Respondents
Coordinated and Interstate, at all the times material herein, has been Russell
V. Dievler. His immediate subordinates are W. B. Dickson, superintendent of
transportation, and F. C. Burton, superintendent of buildings and equipment from
March 1, 1945, to date.10
Seven garages are maintained in the Bergen Division. The supervisory staff of
the division presently includes 3 supervisors, responsible to the superintendent
of transportation, and 3 garage foremen, responsible to the superintendent of
buildings and equipment. Immediately subordinate to the supervisors, each of
whom is responsible for the operations of both respondents at a particular garage
or group of garages, are 9 depot masters, 13 assistant depot masters, 6 road
supervisors, and 3 inspectors All of the individuals designated by these titles are
considered a part of the supervisory staff of Respondents Coordinated and Inter-
7 "The term `labor organization' means any organization of any kind, or any agency or
employee representation committee or plan, in which employees participate and which exists
for the purpose, in whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of work " National
Labor Relations Act, Section 2 (5).
8 Matter of Federal Shipbuilding and Dry Dock Company, 65 N L R B 410 , Matter of
Columbia River Packers Association, 40 N. L R B 246 ; Matter of Lawson Manufactut ing
Company, 19 N L R B , 756, 799
° In the light of the finding made in this connection, the undersigned finds it unnecessary
to consider the further argument of counsel for Amalgamated that United is not entitled
to recognition as a party to this proceeding See National Labor Relations Board Rules
and Regulations, Series 11, Sections 203 7 and 203.11.
10 J W. Whetham occupied the latter position prior to the date in question
PUBLIC SERVICE CORPORATION OF NEW JERSEY 165
state; they receive their pay, as previously noted, from both of the companies
they serve. All are salaried employees, as distinguished from hourly paid opera-
tors and maintenance personnel; they have never been included within the
coverage of any collective bargaining agreements negotiated by the respondents
and Amalgamated Their work assignments, according to Division Manager
Dievler, are changed, when necessary, without any reference to their seniority
status with the companies.
The division manager, in general, has complete supervision over the persons
who occupy the positions named above, and is responsible generally for the
operation and maintenance of the busses operated within the division by
Respondents Coordinated and Interstate. His immediate subordinates, pre-
viously designated, are responsible respectively for the operation of the busses
in the division, and for the maintenance of the buildings and equipment owned
by the respondents therein. Although the final authority to hire, promote,
discharge, discipline, and otherwise effect changes in the status of employees
iesicles with the division manager, subject to the right of appeal established by
collective bargaining agreements, each of the superintendents has the admitted
authority to make recommendations as to changes in the status of personnel,
recommendations which are generally followed by the division manager. In the
absence of the division manager, his authority is exercised for the period of his
absence from duty by the superintendents, each within the field of his particular
and specialized jurisdiction
The garage foremen, previously noted, are primarily responsible for the main-
tenance work on the buildings and equipment of the respondents. They function
as the immediate supervisory heads of the mechanical department and service
the equipment of both respondents. The record indicates that they have the
authority to assign mechanics to their work, and certain limited authority to
make recommendations as to changes in the status of those subordinate to them
These recommendations, within the normal course of events, are communicated
to the division manager through the superintendent of buildings and equipment.
In the operating department, however, those individuals designated specifically
as supervisors report directly to the division manager. They are responsible
generally for the ettective operation of the lines which operate from garages
under their supervision. As incidents of their employment they possess the
authority to make recommendations to the division manager with respect to
changes in operational schedules, disciplinary measures designed to affect the
operating staff, and, in addition, changes in the status of minor supervisory and
non-supervisory personnel.
The depot masters already mentioned, otherwise known as station masters,
are responsible directly to the supervisors of the respondent companies They
are assigned to particular garages, at which it is their function, in turn, to assign
the operators to their work In the largest operational unit of the Bergen D_vi-
sion, which includes the Hackensack, Rutherford, Westwood and Railroad Ave-
nue garages, the respondents maintain a staff of 180 operators, subject to the
orders of the depot master there assigned At Edgewater garage, the smallest
unit within the Division, there are approximately 50 operators subject to the
orders of a depot master It was conceded at the hearing that the assignment
of work by depot masters is fully within the discretion of the latter, subject only
to such limitations upon that discretion as may be fixed by the terms of an appli-
cable collective bargaining agreement
Assistant depot masters usually receive the money turned'in by operators, and
perform, in addition, various clerical functions of assistance to the depot master
778886-49-vol. 77-12
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Road supervisors, as in the case of depot masters, are directly responsible to
a particular supervisor, and perform a number of functions related to the quality
of the service provided by Respondents Coordinated and Interstate on the par-
ticular lines to which they are assigned. Primarily, they are responsible for the
regulation of schedules maintained by the respondent companies ; they make
observations as to the adequacy of service at specific tunes, check upon the ability
of operators to maintain schedules, and make recommendations to the supervisor
with respect to changes in service.
Inspectors, so-called, have no specific assignment but are employed as relief
men, in which capacity they may be called upon at various times to replace any
of the minor supervisory personnel herein listed, below the level of a supervisor.
Each of the minor supervisory personnel listed is authorized to report a viola
tion of company rules by operators or maintenance employees, or other matters
which may require disciplinary action or changes in status among non-supervi-
sory personnel. These reports, the record shows, are customarily submitted to a
supervisor for necessary action.
The respondents concede that all of the individuals whose duties and respon-
sibilities are discussed herein are considered to be supervisory personnel. It is
argued, however, that employees subordinate to the division manager exercise
only a minor degree of supervisory authority, in fact, and that their conduct in
connection with the events which form the basis of the instant case should not
be imputed to the respondents. This contention is without merit. It should be
emphasized that the responsibility of the respondents for the conduct of their
supervisory personnel cannot be said to rest alone upon the rule of respondent
super tor." Upon the entire record, it is clear and the undersigned finds that the
personnel now under discussion were, and are, the recognized agents of Respond-
ents Coordinated and Interstate for the transmission of instructions to non-
supervisory employees, and are, in fact, immediately responsible for the degree
of effective supervision required to assure proper execution of the duties assigned
to such non-supervisory personnel. They have acted, and continue to act, as
spokesmen for the respondents in all of the varied matters, which relate to the
normal routine of the work. By virtue of that responsibility inherent in their
function they occupy a strategic position with respect to employees responsible
to them, and may be properly described, in the opinion of the undersigned, as
representatives of management.12 It follows that the respondents must be held
accountable for their knowledge and activity, insofar as it may relate to the
events with which the parties are here concerned ; and the undersigned so finds.
B. The general course of the unfair labor practices
1. The contractual relation between Amalgamated and the respondents
The record establishes that Amalgamated has maintained contractual relations
for 27 years with the companies which have operated the properties now adinin-
istered by Respondents Coordinated and Interstate. Their first agreement,
according to the record, was negotiated in 1919. The contract in effect through-
out the period with which the present case is primarily concerned, was executed
on June 25, 1945. Its parties are specifically identified in the language of the
preamble as Respondents Coordinated and Interstate, and those employees "who
are now or may hereafter become members of the several divisions known and
designated as Divisions Nos 819, 820, 821, 822, 823, 524, 825, 862, 880, and 947
it International Association of Machinists v. N. L R. B , 311 U. S 72, 80.
32 Matter of Fred P. Weissman Company, 69 N. L. R. B. 1002.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 167
of the Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America " The agreement , as adopted , was to remain in force
aintil July 1, 1946, and from year to year thereafter, subject to 60 days' notice by
either party of a desire to negotiate changes.
Throughout the major portion of the period in which the parties have governed
their. relationship by contract, and at all of the times material herein, the agree-
ments between Amalgamated and the respondents have contained a maintenance-
of-membership clause, expressed in the following terms :
The Companies shall do nothing to prevent or discourage any present
employee from becoming or continuing to be a member of the Association
and shall not in any way discriminate against a member thereof because of
such membership. The Association shall not in any way discriminate against
any present employee of the Companies because of his refusal to join the
Association. Employees, being members of the Association, and, therefore,
parties to this Agreement, shall during the period of this Agreement remain
members of the Association, if in the employ of the Companies.13
Although the agreement, thus expressed, cannot be said to establish a closed or
-union shop, the undenied and credited testimony of Appleton indicates that, at
the time of the events related herein, all of the operating and maintenance per-
sonnel employed by the respondents held membership in some division of the
-union
2. The walk-out of November 18, 1942
On November 18, 1942, as the result of grievances not directly material herein,
certain employees at the garages of the respondent companies in Hackensack,
Cresskill, and Westwood, all within the Bergen Division, called an unauthorized
.strike against the respondents, a strike which was "one hundred percent effec-
tive" at the particular garages named, according to the testimony of witnesses
for the Board. The walk-out began at approximately 4: 30 a. in. on the day in
,question Within a few hours thereafter several of the respondents' supervisory
officials, including W B. Dickson, superintendent of transportation for the Bergen
Division, a Mr. McArthur, then the personnel manager of Respondents Coordi-
nated and Interstate, Charles Fields, then assistant to McArthur, Mathew It.
Boylan, then vice president in charge of operations, and James M. Sym.ngton,
then employed as Boylan's assistant, appeared on the property of the respondents
at Cresskill and discussed with representatives of the employees the grievances
which had caused the cessation of work. As a result of this discussion, Fields
-xu as commissioned by Boylan to receive the complaints of employees and to settle
the grievances which could be adjusted on the spot. The men were exhorted by
Boylan to return to work and to await the adjustment of their grievances in the
normal course of events : and the walk-out ended at about 9: 30 a. m.14
A contemporary investigation of the circumstances which resulted in the cessa-
tion of work, by representatives of Amalgamated and supervisory officials, indi-
13 Arthur Appleton, State Business Agent of the Amalgamated, testified credibly that the
clause in question has been incorporated in every contract with the respondent companies
since 1921 or 1922 , and that its terminology has never been changed
14 Sconhenza testified that Boylan promised to hear the unadjusted grievances of the em-
ployees on the following day at the garage in Hackensack, but failed to show up for the
meeting There is no allegation, however, in this proceeding, that the conduct of the
respondents in connection with the strike amounted to a violation of the Act, and the
undersigned finds it unnecessary, therefore, to make any finding on the point thus argued
6v the witness
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated, apparently to the satisfaction of the union and the respondents, that
certain individuals, eight in number, were primarily responsible for the strike."
The individuals involved were immediately suspended by the State Conference
Board of Amalgamated, and deprived of their status as members in good standing
of that organization. Information as to the action of the Conference Board was
dispatched to Boylan on November 19, 1942; such of the individuals as were
then employed by the respondent companies were immediately suspended from
their employment until such time as they should reestablish membership in good
standing with the contracting union."
Fred Sconfienza, the dischargee involved in the instant case, participated in
the walk-out on the 18th of November but was not, so far as the record shows,
among the employees active in the promotion or conduct of the strike.
3. Concerted activity by the employees in 1943
In July of 1943, apparently because of resentment in regard to the aftermath
of the November 1942 strike, grievances, and dissatisfaction with the current
negotiations for a new agreement, certain of the suspended employees, Scon-
fienza, and several others, prepared and circulated among employees of the
respondent companies a leaflet which announced a protest meeting for the
members of Division 825 at the Junior Order Hall in Hackensack 17
The meeting was scheduled for 9 •30 p in on the evening of July 15th Copies of
the leaflet, according to the record, were found upon the respondents' premises by
Emil Johnson and John Modersohn, the supervisors assigned respectively to the
garages of the respondents at Edgewater, New Jersey, and Cresskill, and were
forwarded by them to Division Manager Dievler The latter was also informed
at the time that the circulars had been distributed by some of the employees
suspended in 1942. Dievler, according to his undenied and credited testimony,
communicated immediately with Boylan, and was advised by the latter to under-
take surveillance of the meeting, in order to observe the number of operators and
maintenance employees who attended, and to determine whether the meeting in
question portended any further difficulty in connection with the operation of
the respondent companies, similar to the November 1942 strike." Dievler dis-
cussed the matter with Dickson, and requested him to be present also The latter
agreed
Employees of the respondent companies began to gather in the vicinity of the
Junior Order hall shortly after 8: 00 p. in, on the evening of July 15th. Dievler
and Dickson, according to their testimony, had already arrived. Sconfienza,
another one of the early arrivals, testified credibly that he had observed these
official representatives of the respondent companies and several officers of Amal-
gamated upon the adjacent property of the respondents upon his arrival at the
"These included Walter Altana, William Eckert, Vincent Fagan, Joseph Whalen, J
Scerbo, U Fishman, G Straub, and George Valero, all of whom were members of Amalga-
mated', Division 825, the Divisipn with jurisdiction in Bergen County
16 Altana hail already been "discharged" by the respondents on January 20, 1942, for
reasons not directly material to the instant case Similar action had also been taken
previously with respect to Eckert
17 The hall, according to the record, is located immediately adjacent to the entrance
driveway of the respondents' garage on Gamewell Street in Hackensack Across the drive-
way, and immediately north of the hall, is located the "office building" utilized by the
respondents as the headquarters of the Bergen Division . Sconfienza explained the choice
of the hall as dictated by the fact that Carpenter's Hall, the regular meeting place of
the union, was not available on that night for the gathering under discussion.
18 Fields, according to his testimony, received substantially similar instructions.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 169
Hall.'° In addition, according to Sconfienza, Emil Johnson, then a supervisor
at the Edgewater garage, stood upon the sidewalk before the office building of the
respondents, approximately 40 feet from the entrance to the Junior Order Hall,
and accosted a number of employees who were approaching the hall from the east
with the apparent intention of attending the meeting. Johnson carried a small
notebook, which was identified as similar in size and appearance to the notebooks
customarily used by supervisors in connection with their work, and was observed
by Sconfienza and others to make notations in the notebook after a brief conversa-
tion with each of the employees accosted by him. °
At or about this time, Mathew R. Boylan also arrived at the scene by auto-
rnobile, conferred briefly with officials of the respondent companies in the drive-
way of the property, and then entered the building owned by the respondents
immediately adjacent to the Junior Order Hall."
Shortly before the scheduled start of the meeting, according to the credited
testimony of Sconfienza, Whalen and others, several supervisory officials of the
1° Dievler and Dickson, previously mentioned, four officials of Amalgamated, and two
additional employees of the respondent companies were identified by Sconfienza, who testi-
fied that the men were scattered in groups of two or three on the driveway between the
Junior Order Hall and the office building of the respondents, and on the sidewalk entrance
to the driveway, while some weie seated on the platform of the office building which
fronted on the driveway.
The testimony of Sconfienza with respect to the events of the evening, summarized
herein, has been substantially corroborated by that of Whalen, Eckert, and Altana Busi-
ness Agent Seward, President McCabe, Leonard Mills and Joseph Toleno of Amalgamated
admitted at the hearing that they had been present at the time
20 Sconfienza, according to his credited testimony, nquaied of Johnson as to what he was
doing In reply, said Sconfienza, Johnson stated, "Freddie, I never will forget that strike
you pulled up in Cresskill," to which the latter replied, in turn, "Johnny, you cannot scare
the men by standing out here this way and taking their names down " The testimony
of Sconfienza contains no reterence to a reply.
Johnson denied that he had engaged in any action of the type described, or that he
had had the quoted conversation with Sconfienza He admitted, however, that he had been
present on the property of the respondents at the time, and that he might have greeted some
employees on their way to the hall, but denied that lie had ever been out upon the sidewalk
before the office building of the respondents prior to the meeting Upon the entire record
and his observation of the witnesses, the undersigned credits the testimony of Sconfienza as
to his observation with respect to the conduct of Johnson. The record also contains addi
tional testimony by Walter Altana with respect to a statement made to him by George
Fagan, an employee, who allegedly advised Altana at the meeting that Johnson had
accosted him and noted his name and number Since the testimony in question was
hearsay, however, the undersigned makes no finding to that effect
21 The respondents introduced evidence by General Manager Warner and the former
chauffeur of M R Boylan tending to show that he iegulaily took extended vacations at
Avon, New Jersey, on every week end of July and August in 1943, beginning on Thursday
nights and ending on Monday mornings The chauffeur also testified that Boylan had been
in poor health from 1942 until his death on April 30, 1945, and that he, the chauffeur, was
never required to drive for Bovlan at night during the period in question Warner, in
addition, stated that Boylan had followed his regular practice with respect to week-end
leave on the afternoon of July 15, 1943-a day before the respondents and Amalgamated
held a meeting to discuss the area of their agreement on the 1943-44 contract which they
later executed.
The testimony in question was obviously offered to rebut the testimony of witnesses for
the Board that Boylan had been present in Hackensack on the evening of July 15, and to
discredit their testimony in general. Upon the entire record, however, and in the light
of evidence that other means of transportation were available to Boylan; that he was
active at the time in the negotiations with Amalgamated, and the War Labor Board pro-
ceedings incidental thereto; and that he obviously regarded the meeting of July 15 as
sufficiently significant to justify an attitude of watchful waiting on the part of the com-
panies, the undersigned credits the testimony of the witnesses for the Board that he was
present on company property in Hackensack at the time of the meeting under discussion.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent companies, and the officers of Amalgamated, moved to the sidewalk
area immediately before the entrance to the property of the respondents, an(I
formed an ii regular line diagonally across the entryway from the curb to the
respondents' property line, According to Sconfienza and Whalen, the line formed
an Effective barrier for persons approaching the Junior Order Hall from the east.
Sconfienza and Whalen, according to their credited testimony, went through the
line to reach the Junior Order Hall Others, among them Eckert and Altana,
stepped off the curb into Gamewell Street in order to avoid the necessity of
passing through R3
The meeting began at about 9:30 p in, as scheduled. Approximately 65 em-
ployees were present when William Eckert, who acted as chairman, called for
order. In the midst of the discussion that followed, which is not set out specifi-
cally in the record, one of the employees present called the attention of his fellow
employees to the tact that Boylan, Dievler, Dickson, and several other, officals of
the respondent companies, together with Arthur Seward, were standing at the
window of a lighted room in the adjacent building, from which they could ob-
serve the meeting in the Junior Oi der Hall. Several employees rushed to the
window from which this observation had been made. Almost immediately, the
light in the room across the way was extinguished ; and according to the credited
testimony of witnesses for the Board, the persons standing at the window across
the driveway, if any, could no longer be distinguished or identified 24
The meeting adjourned about 11 p in Upon leaving the hall, Sconfienza , Altana,
Whalen, and others observed officials of Amalgamated in the vicinity, and spoke
to them There is no indication, however, that the conversation dwelt in any
way upon the events which had occurred that evening.2°
22 Sconfienza identified the line as composed of Mathew Bo3lan, who had come back out
on the driveway in the meantime, Dievler, Dickson, Supervisors Johnson, Pierce and
Modersohn, Acting Inspector Gaddis and Depot Master Warner for the respondents, together
with Business Agent Seward, President McCabe, Shop Steward Joseph Toleno, Leonard
Mills and others for Division 825 of Amalgamated
23 It was admitted by all the parties, however, that the individuals who composed the
line presented no physical impediment to the passage of persons who sought the entrance
to the Junior Order Hall.
24 According to the testimony of Sconfienza and Whalen, which the undersigned credits,
the windows in both buildings were open at the time, and throughout the period of the
meeting
2s Witnesses for the respondent companies , among then Personnel Manager Fields,
Dievler, Dickson, Supervisor Johnson , General Manager Warner and others , variously
denied that Boylan had been at the Hackensack garage on the night of July 15, that Emir
Johnson had been present in the vicinity making notes on the, people present, or that the
company and union officials present had ever formed a line across the sidewalk which
impeded access to the Junior Order Hall Statements of similar tenor were offered b}-
witnesses who testified for Amalgamated Dievler admitted , however , that lie had observe(p
the number of employees present in the vicinity of the hall, and, indeed, had made an effort
to do so He testified that there were only 25 or 30, and that lie concluded , as a result,
that there was no significant danger of any interruption in service
The testimony of a number of drivers and other employees was also offered to refute
or otherwise discredit specific testimony offered by witnesses for the Board In this con-
nection James Monroe , a driver , testified that he had attended the meeting of July 15 and
denied that he had been accosted at the time by anyone Similar testimony was given by
Peter Trotta, who had accompanied Monroe. Joseph Ryan, it driver, stated that he had
come to Hackensack from Westwood with James Bracken , a fellow employee , to observe
the meeting , and also denied that he had been accosted or spoken to by anyone in the vicinity
of the hall His testimony was corroborated by Bracken Peter McCarthy, a Westwood
driver, denied that he had been in the vicinity of the Hackensack garage at all on the date
PUBLIC SERVICE CORPORATION OF NEW JERSEY 171
Within a day or two thereafter leaflets were again distributed to employees of
the respondent companies within the Bergen Division , to announce that a second
meeting had been planned for the 19th of July, at the Painter 's Union Hall in
Englewood , New Jersey Copies of the leaflet were again received by Division
Manager Dievler from Supervisors Johnson and Modersohn . Dievler communi-
cated with Boylan as before , and was again advised to undertake surveillance
of the meeting . On the evening of the 19th , some time before the scheduled hour
of the meeting , Business Agent Seward, accompanied by Division Manager Dievler,
drove past the Painter ' s Union Flall ; his action in doing so was observed by
Whalen, who was sitting across the street." About one-half hour before 9 p.,m.
the meeting time announced in the leaflet, Dievler , Dickson, and Seward, accom-
panied by Leonard Mills , shop steward at Hackensack '27 appeared again before
the hall , and parked the cars in which they were riding about 20 feet north of
the entrance to the hall , at a point from which they could observe and be observed
by employees of the respondent companies who entered the building . 28 In addition,
at some time before the start of the meeting, Emil Johnson , who had also appeared
in his car, was observed in conversation with Dickson and Dievler , at the open
widow of the car in which the latter were sitting 20
There is no substantial indication , however , that Dievler, Seward or Johnson
spoke to any employee of the respondent companies , with the exception of one
employee who allegedly volunteered the information that he expected to attend.
Dievler testified , without contradiction , that a blackout which began shortly after
the scheduled start of the meeting prevented his departure from the vicinity
for about an hour, but that he and Seward left the neighborhood of the hall
in question Similar testimony was given by Depot Master Warner, and John H Gaddis.
currently employed as it road supervisor
In evaluating the testimony summarized above, the undersigned has noted that the
record contains no reference to Monroe or Trotta on the part of witnesses for the Board.
The testimony which they offered, therefore, does not meet or refute any of the evidence
relied upon by the Board, and the undersigned so finds Ryan and Bracken testified that
they had arrived in Hackensack very early on the night of the meeting, and had then
remained away in search of "refreshments" for about 4 hours, to 11 30 p ni The under-
signed considers it most unlikely that Ryan and Bracken would have come to Hackensack
from Westwood to observe the meeting and then remove themselves from the vicinity of
the hall for the entire period of its duration without a more compelling reason than a desire
for refreshments Such a reason is found in the testinionv of Whalen and Eckert that
the drivers in question were among those accosted by .Tolnson -testimony which the
undersigned believes to be worthy of credit The undersigned notes in this connection,
the testimony of President McCabe that Bracken and Ryan were seated with him on the
platform of the company building between the hours of 8 15 and 9 30 p. m
Upon the entire record, therefore , and in the light of his observation of the witnesses.
the undersigned credits the testimony of the witnesses for the Board.
^ Dievler , with corroboration by Dickson , testified that he had driven his car to Engle-
wood , picked up Dickson there , and arrived in front of the meeting hall shortly thereafter,
but denied that he saw Seward at any time before his arrival in front of the hall Insofar
as his testimony in this connection varies front that of Whalen , the undersigned credits
Whalen
21 The identification of Mills is based upon the testimony of Whalen , Eckert, Altana,
Dievler, Dickson , and Seward . Sconfienza identified the man with Seward as Joseph
Toleno, of the Cresskill garage. According to McCabe and Seward , both Mills and Toleno
were present . In the light of the entire record , therefore , the undersigned does not regard
the variance as material and finds it unnecessary to resolve the questioii created thereby
28 Dievler and Dickson appear to have been seated in one car ; Seward and Mills in
another. McCabe , according to his testimony , was also present in front of the hall , for part
of the evening in question
29 The testimony of Sconfienza and Whalen, upon which these findings are based , has been
substantially corroborated by that of Eckert and Altana.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately after the blackout was lifted.30 The meeting adjourned at about
11p.m.
There is no indication in the record that the meetings held on the 15th and
19th of July, in 1943, resulted in any specific action on the part of Amalgamated
or the respondents. The insurgent group, however, so far as the record shows,
has called no further meeting of employees.
4. The organization of United
The record contains no indication of dissatisfaction among employees of the
respondent companies, in 1944, with respect to the quality of their representation
by Amalgamated Early in 1945, however, as the result of extended negotiations
between Amalgamated and the respondents with respect to their agreement for
the 1945-46 contract year, and proceedings before the War Labor Board which
need not be detailed here, employees of the respondent companies received a
WLB award which called for a pay increase of about 5 cents per hour-an amount
which some of the employees, including Sconfienza, regarded as inadequate"
Dissatisfaction with the award among the members of Division 825 ultimately
resulted in the appointment of Sconfienza to a committee delegated to meet with
an international officer of Amalgamated and to discuss the scope of possible
action which Division 825 might take to express its discontent. Business Agent
Seward and President McCabe of Division 825 were the other members of the
committee, which subsequently met in Baltimore with Amalgamated Interna-
tional Vice-President Mischo, and discussed the matter with lam The conmut-
tee made no formal report to the members of the Division with respect to its con-
versations with Vice-President Mischo. Sconfienza, however, acting upon his
own initiative, spoke informally to employees of the respondent companies at
several garages within the Bergen division, and reported the substance of the
discussion as he had understood it. The record indicates that on one such occa-
sion, at least, in the operator's room at the Hackensack garage, Sconfienza's
report to the employees was overheard by Dievler, Dickson, and Seward, who
stood in the doorway of the operator's room within plain view of all the employees
there, while Sconfienza repeated the story of the committee's conversation with
Mischo, already noted 22
On the 8th of March, 1946, Sconfienza was approached during a period of lay-
over at the end of his run by an individual who represented himself as an
organizer for the United Transport Workers of America, a labor organization
which intended to establish itself upon the property of the respondents Upon
the basis of representations made by the individual in question Sconfienza com-
municated with Walter Altana, Whalen, Eckert, Valero, Holden, and several of
the other individuals who had been suspended by Amalgamated in November
1942, and advised them as to the existence of United. On March 10, 1946, at a
80 This occurred, apparently , between 10 and 10: 30 p in
31 The contract which embodied the award, according to Sconfienza , was rejected by the
Bergen County and Camden divisions of Amalgamated , although it was apparently ap-
proved and signed by the other divisions within the State-wide bargaining unit.
81 Counsel for the Amalgamated sought to establish , on several occasions during the
hearing, that Sconfienza , in his talks to other employees , had misinterpreted the results of
the mission to Baltimore . The undersigned , however , regards the evidence offered in this
connection as irrelevant and immaterial . Even though it be assumed for purposes of
argument , that the contentions of counsel in this connection may be consistent with the
facts, the record shows that Sconfienza was not subjected to union discipline at the time,
and there is no indication that the conduct of which counsel now complains was considered
in connection with his ultimate suspension, discussed in detail hereinafter.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 173
meeting attended by Sconfienza, the individuals named, and other employees of
the respondent companies, United was formally organized. On March 18, the
new organization adopted the constitution already discussed in this report, which
was subsequently ratified, as already noted, and typed in final form"
Thereafter, Sconfienza and the other individuals named were actively engaged
in the solicitation of members for United among employees of the respondent
companies According to Sconfienza he distributed membership application cards
and circulars at various garages and freely, discussed the benefits to be derived
from membership in the newly founded organization. On one such occasion,
Sconfienza testified, while he, Altana, Eckert, and Whalen were engaged in
organizational activity at the Hackensack garage, Depot Master Flood asked
Altana "what it was all about," and was expressly informed at the time that
"a new union" was being organized among the respondents' employees. On
another occasion, according to the witness, he distributed application cards at
Cresskill within the presence of Depot Master Bertram, and on still another
occasion, outside the property there, within the view of Supervisor Modersohn.34
On March 16, 1946, apparently as the result of action taken at the meeting,
Martha Davis, president of United, prepared a petition for the certification of
representatives which was ultimately filed with the Regional Qffice of the Board
on March 21, and was docketed as Case No 2-R-6386. The petition, as filed,
designated the employer involved as Public Service Coordinated Transport
Company and described the unit appropriate for the purposes of collective bar-
gaining as the "Bus Drivers-Garage men and Maintenance men of Bergen
County, New jersey." Contemporaneously with the preparation of the petition,
representatives of United undertook an extensive organizational campaign among
employees of the respondent companies, as already noted 35
On the 19th of March, at some time in the evening-about the close of the
evening rush hour-Holden and Altana appeared at the respondents' Englewood
garage to interview a bus cleaner, and to solicit his membership in United. Altana
entered the garage to seek the cleaner, and was discovered there by Charles
Belknap, the assistant depot master then on duty. The latter informed Altana,
after some discussion as to the object of Altana's visit, that he had no business
upon the property of the respondents, and ordered him to leave the garage
Altana, together with Holden, who had apparently remained outside, then pro-
ceeded to the front of the garage, where the operator's room was located, at a
corner of the building marked by a store front window and door.
According to the credited testimony of Altana and Holden , the store front
window was painted dark green, to a height of approximately 6 feet from the
ground, while the panel of the store front door, which was made of glass, was
painted completely black. Altana, however, according to his testimony, observed
a sizeable chip in the paint through which the light of the room inside was ap-
parent to persons outside , and noted also that the transom of the door was
open. Thereupon, according to Altana and Holden , the former stooped and
33 Sconfienza , according to his undenied and credited testimony, was elected to member-
ship in the district council of the organization
34 Flood, when called as a witness by the respondents, denied that Sconfienza or Altana
had ever mentioned United to him, and Bertram similarly denied that he had ever been
spoken to by Sconfienza. The undersigned notes that the testimony of Sconfienza contains
no reference to a conversation with Bertram. Upon the entire record, the undersigned
credits the testimony of the witness for the Board
35 The petition was subsequently withdrawn, on June 28, 1946, and was replaced by a new
petition in which United sought certification by the Board in a unit which covered the
State.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied his eye to the point in the door at which the paint was chipped, while
the latter pulled himself up at the store front window to a point at which he
could see above the painted barrier. Both observed Belknap, the assistant
depot master, sitting upon a table in the operator's room, addressing several
individuals attired in overalls who were apparently cleaners employed at the
respondents' Englewood garage. Belknap, according to Altana and Holden,
who heard him through the open transom, advised the employees that they should
not join "another" organization, that he had known Arthur Seward for "a long
time," that Seward was a "good man," and that the employees would be well off
in "sticking" with the union to which they belonged. According to Altana, he
concluded with the admonition that, "If any of you fellows get caught talking
to that fellow you might lose your job !" The record contains no reference to the
further activity of Holden or Altana on that date.36
On or about March 21, according to Sconfienza and Holden, Supervisor Moder-
sohn, while on duty at the Cresskill garage, accosted Holden on the sidewalk be-
fore the property of the respondents in the presence of Sconfienza, and inquired
of Holden, "What kind of trouble are you bringing on the property now?" Holden
replied that he was not on company property, and was not bringing any "trouble"
to the property of the respondents. Modersohn concluded the conversation with
an admonition to Holden, saying, in effect, that "I don't want you in on com-
pany property at all " Sconfienza, who was in a bus waiting to start his run,
then left. His testimony with respect to the incident up to the moment of his
departure corroborates that of Holden, who added that Modersohn went on to
inquire how many "men" had been signed up by Holden for United. Holden,
according to his testimony, refused to give the information requested ; Modersohn
ac The account of the foregoing incident contained in this report is based upon a synthesis
of the testimony given by Altana and Holden Belknap, when questioned as to the
incident, testified as follows,
I came into the operator's room to go to the office, and I said to this Isaac Forster,
(sic) "So you don't want to sign up with the boys?" He said, "No, I am satisfied "
I said, "I don't blame you ; as far as I am concerned, I have belonged to unions for a
good many years and I have never belonged to any of them that worked any haider
for their nien than Arty Seward "
Isaac Foster, the cleaner sought by Altana, also denied that Belknap had advised him not
to join another union, or that lie might lose his lob if he did so
The respondents also sought to discredit the testimony of Altana and Holden in this
connection by extensive testimony and exhibits to show that the panel of the door, which
they described as made of glass, had been broken and replaced with a panel made of
plywood approximately 1 year before the incident under discussion, in March of 1945
Upon the entire record, the undersigned is satisfied that the door had a panel of plywood
at the time of the hearing The testimony of Altana and Holden, however, as to the
nature of the panel in March of 1946, was corroborated by that of George MacDonald,
former driver for the respondents, who had been employed in the Englewood garage His
testimony that the panel was then constructed of glass was not successfully shaken on
cross -examination , and he impressed the undersigned as an honest and forthright witness
The testimony of Altana and Holden, in the opinion of the undersigned, was further cor-
roborated by the admission of Belknap, already noted It would seem to be extremely
unlikely that Altana and Holden could testify as accurately as they did with respect to
that portion of the conversation which is corroborated by Belknap, and still be mistaken
or guilty of obvious fabrication in connection with it matter of such incidental significance,
and one so easily subject to objective verification Although the testimony of the witnesses
for the Board contained several differences in respect to minor matters, the undersigned
is satisfied that their composite testimony provides a sufficiently accurate account of the
events in question to support the findings made herein. Upon the entire record, therefore,
the undersigned credits the quoted testimony of Altana and Holden
PUBLIC SERVICE CORPORATION OF NEW JERSEY 175
then repeated his earlier comment that he did not wish to see Holden on the
company property, but disclaimed any personal animus in the matter.3'
Later, at about 4.10 p. m., Holden visited Altana, and returned with him to
the Cresskill property of the respondents. At or about 6: 10 p. in., Altana was
driven by Holden, in Holden's car, to the respondents' Englewood garage 33
According to the credited testimony of Altana and Holden, they observed in the
course of their journey from Cresskill to Englewood that the automobile in which
they were riding was being followed by another car, which both identified as the
automobile customarily driven by Modersohn 36
Almost immediately after their arrival at the Englewood garage, at or about
3 • 30 p. in , Modersohn did drive tip before the garage in an automobile of the type
identified by Holden and Altana as the one which had "trailed" them from Cress-
kill. After spending 10 or 15 minutes in the garage, Modersohn came out and
resumed his place in the car. Altana, who had left Holden's automobile and
taken a position upon the sidewalk immediately adjacent to the Englewood
garage, approached Modersohn at the wheel of his car, together with Holden,
and advised the former that lie had come to Englewood for the purpose of solicit-
ing membership applications on behalf of United among employees of the respond-
ent companies, and that 1liodersohn's presence within the view of employees
leaving the garage would seriously interfere with his organizational activity 40
Modersohn, according to Altana, immediately replied that he had intended to
leave, but that, in view of Altana's protest, he would "stay" a while. "just for
spite." n The record establishes that several employees who left the Englewood
garage at or about this time did observe the presence of Modersohn and spoke
to him when called. One such employee, who testified at the hearing, stated that
lie had stopped to talk with Modersohn and that the activities of Altana in con-
nection with the organization of United were mentioned in the course of the
31 Modersohn testified to a conversation with Holden, and admitted that Holden was then
on public property, but stated that he had merely warned Holden not to interfere with the
operation of busses that were clue to pull out The undersigned credits Sconfienza and
Holden
33 Altana testified that lie and Holden were accompanied at the time by Charles Daly,
another representative of United.
39 When questioned on cross-examination as to the degree of sunlight available at the
time , the amount of traffic , the distance at which they were being followed , and the amount
of shadow on the highway, Altana insisted that darkness had not yet fallen, that traffic
was not heavy, and that the car which he identified had been observed half a block behind
them before Holden reached a point in the route at which the shadows would have hampered
vision Holden testified to the same effect. In the light of the entire record, however,
and the finding made hereafter in this connection . the undersigned finds it unnecessary to
resolve the question thus presented as to the accuracy of their observation
40 According to Altana, several operators had already left the garage and had refused
to acknowledge his attempt to engage them in conversation about United
91 The testimony of Holden with respect to this conversation differs somewhat from that
of Altana. The former quoted Modersohn's reply as, "I have the right to stay here as long
as I want to. Seeing that you make that statement, I am going to stay here as long as you
stay hero " Modersohn did not deny that he had been accosted by Altana , and substan-
tially corrobated the testimony of the latter as to the nature of his complaint When
questioned as to his reply , however , Modersohn stated that he had said , " If there is going
to be a show put on , I will stay and look at it a while " Upon the entire record in this
connection the undersigned finds the sense of all the available - testimony substantially
identical , and does not find it necessary to make a specific finding as to which quotation
most nearly reflects the actual comment made by Modersohn at the time
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation 's At the end of approximately 45 minutes , Altana and Holden left
the vicinity of the garage.
On the evening of the following day, Whalen and Eckert , who were also active
as organizers on behalf of United, spent some time at the municipal terminal
in Hackensack , according to their undenied and credited testimony, in an attempt
to secure applications for membership in United from operators then engaged
in the operation of busses out of the terminal in question . 4° Shortly after they
undertook this activity , which began at about 7 p. in., Whalen and Eckert observed
Division Manager Dievler and Supervisor Johnson on the terminal loading plat-
form , at a point from which they could , in turn, observe the activities of Whalen
and Eckert through a plate glass window. They remained on the loading plat-
form, according to Whalen , for a considerable period of time . At one time
during the evening , at or about S : 45 p. m , George L Straub , who was also
currently engaged , on a part-time basis , in the organizational activity on behalf
of United , approached Whalen and Eckert at the terminal and invited Whalen
to come up the street a bit and meet his father -in-law, a gentleman with whom
the latter was acquainted Whalen was away for approximately three -fourths
of an hour . While engaged in conversation at the automobile of the gentlemen
in question , which was parked on River Street half a block north of the terminal,
the attention of Whalen was called to the fact that Division Manager Dievler
was approaching along the sidewalk , and that he glanced at the persons in and
around the car as he passed , although lie gave no sign of recognition. He
continued north to Mercer Street and then turned west. " Whalen, however, upon
his return to the terminal a few minutes later, noted Dievler approaching the
terminal also , on Demarest Place a5 At the terminal , according to Whalen,
Dievler rejoined Johnson. It was then about 10 p in The men determined to
conclude their organizational activity at the terminal for the evening, and to
undertake further solicitation among employees at the Hackensack garage,
approximately 4 blocks distant. Both men testified , and the undersigned finds,
that their trip on foot from the Hackensack terminal to the garage was marked
by the appearance of Dievler and Johnson , on two occasions , within a short
distance behind them .9° Whalen and Eckert , according to their testimony, con-
cluded that their activities were under effective surveillance , and determined
to give up any further effort to solicit membership applications on behalf of
United on the evening in question.S7
On the following day, the 23rd of March, Altana , again accompanied by Holden,
visited the respondents ' Hackensack garage during the luncheon hour, for the
42 There is no indication, however , that l\Iodersohn ' s comments at the time were calculated
in any way to influence the action of the employee , whatever the effect of his presence may
have been
43 The respondents, according to the record , operate eight specific bus lines out of the
Hackensack terminal , which is also used by three " independent" companies.
4n The testimony of Whalen in this connection was corroborated by Straub and that
of his father -in-law.
45 A study of the map which forms a part of the present record indicates that Dievler's
walk had taken him completely around the block bounded on the east by River Street, on
the north by Mercer Street, Moore Street on the west , and Demarest Place on the south.
+° Whalen and Eckert , according to the record , walked west on Demarest Place to Main,
north on Main to Mercer, and west on Mercer to State Street, at which point Mercer runs
into Gamewell Street Dievler and Johnson, according to their testimony , walked up
Demarest Place to Moore Street , ( at which point they were observed by Whalen and
Eckert ) north on Moore Street to Mercer , and west on Mercer. They were observed by
Whalen and Eckert for a second time at the corner of Main and Mercer.
47 The merits of their conclusion in this regard will be discussed more fully hereinafter.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 177
purpose of soliciting membership on behalf of United among the garage mechanics
there employed. The luncheon hour at the garage customarily lasted one-half
hour, from 12 to 12: 30 p. in., at which time it was the practice of the foreman
to have a whistle blown and thus to signal the end of the luncheon period. On
the date in question, according to Holden, Altana began to speak to a number
of the mechanics on the sidewalk adjacent to the garage some time before 12: 30
p. in. The regular whistle was not blown at 12: 30 and Altana continued to
address the employees for some time thereafter, without effective interruption.
About 12: 15 p. m., according to Holden, while the latter was walking up the
street, he observed W. E Dick, the garage foreman at Hackensack, together with
Arthur Seward, business agent of Amalgamated, and Emil Johnson, several feet
inside the partially open doorway of the garage, at a point from which they
could observe and "probably" hear the conversation in the group of which
Altana was then the center. Holden brought this fact to the attention of Altana
at the time; the latter, however, continued to address the employees. The group
inside the doorway, Holden testified, remained there until about 12: 40 p. in.
At or about that time , said Holden, the word was given by one of the employees
that the luncheon period was over and that it was time to return to work.
The record establishes that work was resumed at about 12: 45 p. m98
The record in the instant case contains no further reference to organizational
activity on behalf of United among the employees of Respondents Coordinated
and Interstate.
5. The termination of Sconfienza
Frederick C. Sconfienza was employed by the respondents on September 25,
1936, at a starting rate of 55 cents per hour. After a'period of instruction, he
was assigned to work as an operator in the Bergen Division and served continu-
ously with the respondents thereafter, until the date on which his employment
ceased, as noted hereinafter. During the period of approximately 10 years in
which he was employed, Sconfienza received nine increases in his rate of pay, all
of them in accordance with the terms of applicable collective bargaining agree-
ments between the respondents and Amalgamated, of which he had become a
member. On the date when his employment ceased, Sconfienza was receiving 95
cents per hour.'9
98 Dick testified that he blew the whistle himself at about 12 40 p in , and that the men
who had been listening, to Altana started back to work at once , he denied, in effect, that
he had listened to the remarks of Altana for any period at all before he blew the whistle
already noted The respondents also sought to impugn the statements of Altana and
Holden in this connection by testimony that the door of the garage was fully open on
the date in question-instead of only partially open, as Holden testified. Anthony Luvera,
a garage mechanic at Hackensack, testified that he was a member of the group addressed
by Altana, that he could see the open doorway at the time, and that he did not see any
officials of the respondents or Amalgamated there. He corroborated the testimony of
Dick as to the time when the whistle was blown and also stated, consistently with the
testimony of his supervisor, that the men returned to work at once
The undersigned, however, notes that the testimony of Luvera, even if accepted at full
value, cannot serve to negate the possibility 'that Dick had listened to the comments of
Altana fiom the shadows of the open doorway for some time before he blew the whistle
which recalled the men to work. Holden, on the basis of his testimony had a greater
opportunity for obseivation since his movements were unrestricted Upon the entire
record, the undeisigned credits Holden, and finds that regardless of the position of the
door, Dick, together with Johnson and Seward, had in fact overheard at least a portion
of the discussion which was under way at the time
"At intervals throughout his period of employment, except for the last 2 years thereof,
SSconfienza was also assigned extra work as a register ieader His testimony that this was
considered a position of trust has not been contradicted by the respondents.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no indication in the record that Sconflenza was particularly active
in the affairs of Amalgamated before November 1942. His participation in the
unauthorized strike which occurred on the 18th of November in that year has
already been noted, and Sconfienza admitted at the hearing that lie was personally
friendly with most of the employees considered by the respondents and Amalga-
reated as responsible for the cessation of work. There is no indication, however,
that he was subjected to any disciplinary action by the respondents or his unioll
as the result of his participation in the strike.
In July of 1943, as previously noted, Sconfienza joined the individuals in ques-
tion, then suspended by the Amalgamated, in the organization of the protest
meetings and the distribution of leaflets to announce the meetings among em-
ployees of the respondent companies.50
Thereafter, however, according to his undenied and credited testimony, Scon-
fienza continued to attend the regular meetings of Division 823. The record:
establishes that he took an increasingly active part in the deliberations of that
organization and was noticeably vocal as a critic of Arthur Seward, the incumbent
officers of Amalgamated, and the quality of the representation which they pro-
vided for employees of the respondent companies. It was his activity in this con-
nection, apparently, which ultimately resulted in his designation as a member
of the committee which interviewed Vice-president Mischo, as already noted, in
connection with the objections of Division 825 to the 1945 War Labor Board award-
Sconfienza became a member of United in March of 1946. Thereafter, in com-
mon with Whalen, Altana, Holden, Eckert, and Straub, as already noted, he was
active in the solicitation of membership applications on behalf of that organiza-
tion among employees of the respondent companies He testified, without contra-
diction, that his activities in this connection were confined to periods in which he
was not working, and in which the other employees approached by him were
"laying over" between their runs
On March 18, 1946, Clinton Slafer, a fellow employee, advised Arthur Seward
by letter that Sconfienza, 4 clays earlier, has solicited his membership application
on behalf of the United The record indicates, however, that Seward and other
officers of Division 825 were already aware of the activities of Sconfienza in this
connection.
On an early date in Api il, which is not set forth in the record, John T Mc-
Cabe, the president of Division 825, instructed Harold Bergin,63 secretary of the
organization, to prepare formal charges against Sconfienza, and dictated for
the latter, in substance, the content of the charges The document, which wag
finally signed by 33 employees, contained three charges with respect to Scon-
flenza, expressed as follows :
1. That the said Fred Sconfienza has not worked to promote the best inter-
ests of the Association in violation of his obligation
5O Sconfienza , at the hearing , expressed the opinion that he was disciplined on several
occasions by superiors in the respondents' employ because of his activity in connection
with the meetings held in 1943 The testimony in this connection was developed lirgeli-
in cross-examination Upon the entire record , the undersigned is not convinced that then
incidents of which Sconfienza complained represented discriminatory treatment or illegal
interference with the exercise of rights guaranteed by the Act
b1 Variously spelled in the present record as Burgin , Bergen , and Bergin . The latter
spelling is adopted here.
Time action in this connection , according to the testimony of McCabe , was ratified hi-
the membership at a regular monthly meeting of the organization , on April 22, 1946, which
voted to authorize the issuance of the charges
PUBLIC SERVICE CORPORATION OF NEW JERSEY 179
2. That the said Fred Sconfienza has slandered the members and the Asso-
sociation in violation of his obligation
3. That during the months of March and April 1946 the said Fred Sconfienza
did violate his obligation to the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of Ainerica, by trying to encourage and
soliciting the members of this Association to join a rival. union.
The charges were served upon Sconflenza by two members of the Executive
Board, Joseph Toleno and Leonard Mills, during his tour of duty
Later in the day, at or about 4. 30 p in, Seward, acting as the business agent of
Division 825, personally served upon Division Manager Dievler a written request
that Sconfienza be excused from work on tlie'iollowing inoi inng.' As the result of
appropriate action by Dicvler, with the concurrence of Personnel Manager Fields,
Sconfienza was informed by Muller, evening depot master at Creszkill, that lie
had been relieved of duty and would be excused from work on the following day 64
The trial board established by Amalgamated, in conformity with the applicable
provisions of its constitution, to hear the charges filed with respect to Sconfienza,
convened at 10:30 a. in on April 24 in the Borough Hall of Englewood, New
Jersey56 Sconflenza was present5° At the opening of the proceedings, according
53 Dievler , when called as a witness by the Board , could not recall the time at which lie
received the letter , and stated only that he had received it sometime after linich He
admitted , however , that he had inquired of Seward as to the reason for the request and
that Seward had replied that Sconfienza was to be placed on trial Dievler could not recall
that he had questioned Seward as to the reason for the trial or the nature of the charges.
Seward, according to Dievler , informed him in the same conversation that Brigante day
time depot master at Cresskill , had already been informed of the additional employees who
would have to be excused from work on April 24 to attend the trial of Sconfienza
s Specifically, Dievler testified that he telephoned Fields, informed the latter of the writ-
ten request presented by Seward, and received the approval of Fields with respect to the
requested release of Sconfienza His testimony in this connection has been corroborated
by that of Fields Dievler then telephoned the Cresskill gaiage, according to his testimony,
and informed the depot master on duty, whom lie could not identify , that Sconfienza was
to be released from work on the following day
Respondents contended that they had received no information on April 23 , or any earlier
date, to indicate the object of the request presented by Seward, except for the explanation
given orally to Dievler Fields, for example , testified categorical]' that lie had no infor-
mation as to the reason at that time Muller, the evening depot master at Cresskill, also
testified that he was first informed as to the suspension of Seonflenza by the union, dis-
cussed in detail hereinafter , when he reported for work at 3 p in on the (late of the actual
suspension, at which time he received information to that effect from Depot Master
Brigante , who had in, t completed his tour of duty on the earlier shift The witness
admitted, however, th I lie had called Clinton Slafer, already mentioned. pursuant to the
written instructions of Brigante, on the evening of April 23 , that Slafei was advised by
him that his presence would be required at the hearing on the following day . that Slafer
had expressed reluc' ince to attend the hearing , and that he had called Brigante almost
immediately thereafter to report the attitude expressed by Slafer Slafer corroborated
the testimony of ]]fuller with respect to their telephone conversation-which occurred,
according to the witness, at about 8 p in or 9 p in on the evening of Api it 2P -and added
that lie had received a second call shortly thereafter from Depot Master Brigante who
advised him that he had been "subpoenaed " to appear at the trial of Sconfienza.
Upon the entire record, the undersigned infers and finds that Bmigante and Muller were
fully informed on the evening of April 23 as to the impending trial of Sconfienza and the
nature of the charges against hiin-and that their knowledge in this connection, if not
essentially it reflection of knowledge already in the possession of higher supervisory
officials , must in any event, be imputed to the latter
55 The Executive Board of Division 825, according to McCabe , acted as the trial boarci on
the occasion in question
56 He had reported for Rork at his regular hour on the 24th , and had been referred to
the Borough Hall by Depot Mastei Brigante , according to his undenied and credited
testimony.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to testimony received in the instant case and the records of the trial board, and
after charges were read, Sconfienza requested that the proceedings be postponed
in order to permit him an opportunity to secure the advice and assistance of
counsel, President McCabe, who acted as the chairman of the board, informed
Sconfienza that, in the opinion of the board, adequate notice of the proceedings
had been given, and that his request for a postponement would be denied.
Sconflenza thereupon left the meeting, although advised that his absence would
not delay the proceedings and that he would be subject to trial in absentia.
The records of the union trial, although not otherwise material here, establish
that Sconfienza was found guilty as charged, upon all of the counts alleged in
the charges previously noted. Bergin, as secretary of the Division, was ordered
forthwith by McCabe to prepare a letter advising Sconfienza of the action taken,
together with appropriate notification to the respondents. Bergin thereupon
prepared a letter to Sconfienza dated the 24th of April, and signed by Arthur
Seward as business agent, which reads as follows:
I have been ordered by the board to notify you, that you automaticly (sic)
suspended yourself from Local 825 of the Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, when you refused
to stand trial.
You had the right to appeal the ruling of the trial board to the Inter-
national President or the General Executive Board if you think you have
been unfairly tried.
Sconfienza testified, however, and the record shows, that the letter in question,
although mailed on April 24, was never received by him; he contended that it
had been delivered by registered mail while he was absent from home, and had
been refused by his wife.
At the same time, according to the credited and undenied testimony of Bergin,
the latter, at the dictation of McCabe, prepared several copies of a letter to
the respondents, addressed to James M. Symington, vice president in charge of
operations, in which the latter was advised of the situation in the following
terms :
Dear Sir :
We have suspended from membership in Local 825 of the Amalgamated
Ass'n Street, Electric Railway and Motor Coach Employees of America, Fred
Sconfienza, and we demand that lie be suspended from work, under Section
C of the agreement dated June 25, 1945.
Very truly yours,
(Signed) JOHN T MCCARE, President.
Joan F. CORDES, Vice President.
HAROLD C. BERGEN, R S.
LEONARD MILLS, Ex Bd.
JosEPH TOLENO, Ex. Bd.
ANDREW ESIK, Ex. Bd.
(Signed ) ARTHUR SEWARD,
Business Agent
One copy of the letter in question was given to McCabe, a second copy, according
to the undenied and credited testimony of Bergin, was dispatched to Symington
at the office of the respondents by regular mail.
Late in the afternoon of April 24, at a time which does not appear with
particularity in the record, Seward and McCabe appeared at the office of the
PUBLIC SERVICE CORPORATION OF NEW JERSEY 181
respondents and asked to see Personnel Manager Fields . Upon being admitted
to the office of the latter they found General Manager Warner present. In
the presence of Warner , McCabe submitted his copy of the letter already men-
tioned to Personnel Manager Fields . According to the credited testimony of
McCabe, corroborated in this respect by that of Warner, Fields read the letter
in silence and placed it on his desk , after which it was picked up and read by
General Manager Warner.
Warner, after reading the letter, inquired as to the reason for the suspension
of Sconfienza , and was told by McCabe that Sconfienza had been suspended be-
cause of his failure to work for the best interests of Amalgamated , the utter-
ance of slanders against Amalgamated and its members , and solicitation on
behalf of a rival union . " Upon being ' advised of the reasons for the suspension
67 General Manager Warner, and later Arthur Seward, who was present with McCabe
at the conference in question, denied that any official of the respondent companies had
been informed of all three reasons for the suspension of Sconfienza, and insisted that
McCabe had merely referred to the suspension of Sconfienza as the result of a finding that
he had slandered officers and members of Amalgamated The testimony of McCabe on
direct examination corroborated that of Warner, and was consistent with the evidence
later given by Seward. The finding of the undersigned in this connection, however, is
based upon the testimony of McCabe in cross-examination. Because of its significance, the
testimony in question, insofar as it bears upon the problem under discussion, is here
set forth in full
Q Who delivered this letter?
A I did.
Q. To whom did you hand it?
A. Mr. Fields.
t a • e s ►
Q Did you make any reference to this letter?
A The letter spoke for itself. I assume he read it.
Q Did anyone ask you why he was suspended?
A No I says to him, to Mr Fields, "lie was suspended for slandering officers and
members of Local 823," and I said, the letter speaks for itself."
s n m $ s s s
Q. Is that all you explained?
A. That is all I explained . . . It took only about two or three, possibly three min-
utes We had other business to do that afternoon
Q. You knew as a matter of fact that was not the only reason for the suspension?
A No.
Q You did not' Had you not had a trial of fir Sconfienza in which there wire
three charges, one of which was dual unionism 9
A. That is right.
Q Did you not tell that to Air. Fields?
A. No, I did not I said Mi. Sconfienza was suspended as a result of a trial He
had walked out, and as a matter of fact under the constitution lie would be auto-
matically suspended
Q In addition to telling AIr Fields lie was suspended for slandering members and
officers was it'
A Officers
Q Officers of the Association, in addition to that you said lie walked out of the
hearing or teal?
A That suspends in itself As far as our constitution goes, that suspends itself.
Q. I asked you what you told Mr. Fields.
A I am trying to tell you this. That is what I told him.
Q Yet as a matter of fact you knew at the time you spoke to Mr. Fields that
Sconfienza had been charged with dual unionism in addition to slandering members
or officers of the Association
A. That is right, there Were three charges
Q But you did not tell him that, did you?
A Yes I told bins slander and working against the interest and best welfare
of the Association and dual unionism And I also told him Air Sconfienza walked
out of the trial and the general laws and the Constitution suspended him itself
788886-49-vol. 77-13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fields replied, according to McCabe, that the respondents would suspend the
employment of Sconfienza in accordance with the terns of their contract with
Amalgamated. Sconfienza accordingly was notified of his suspension from em-
ployment later in the day at Cresskill, by Depot Master Muller, and has per-
formed no service for the respondents since that date.'
Immediately after leaving the union trial, according to his testimony, Scon-
fienza had gone to the Regional Office of the Board to discuss the filing of un-
fair labor practice charges; and on the day which followed his suspension by
the respondents, he consulted Meyer Pesin, an attorney then employed as coun-
sel for United, in this connection. The latter, as the result of his consulta-'
tion with Sconfienza, immediately dispatched a letter addressed to Respondent
Coordinated, which reads as follows :
GENTLEMEN : This is to notify you that LeRoy De Santo, one of your bus
drivers of the Bergen County Division who was discharged by your company
on April 10th, 1946, and Mr. Fred Sconfienza also one of your operators
in Bergen County who was discharged by you on April 24th, 1946, have both
been discharged without just cause.
The basis of the discharge, and of which you had full knowledge and
notice, was because of their union organizational activities which have
been taking place among your bus drivers in the Bergen County Division
within the past several weeks, and because they have both signified their
intention of becoming members of the United Transport Workers of
America
This is to give you express notice of the fact that both of these discharged
employees have been engaged in such union organizational activities and
their discharge is contrary to the law in such case made and provided 5>,
James M Symington, on behalf of Respondent Coordinated, replied on April 29th.
The relevant portion of his response reads:
As to Fred Sconfienza, he was suspended in accordance with long estab-
lished practice upon the request of the Union from membership in which he
had been suspended in accordance with the prevailing contract between
Footnote 57-Continued
Q well, now we have the whole conversation
A As fir as I can remember, yes
Q And that is, you told him all about these charges in substance?
A. Yes.
Q One, Slander -
A That is correct
Q Two, activities unbecoming a member?
A Yes
Q And, three , his dual unionism?
A. Yes.
Q. And you told that to Mr Fields and Mr Warner?
A Mr. Fields Mr warner sat at the end of the table.
Q And what did Mr. Fields say?
A He said, "I will suspend him under the terms of the contract
Seward, a later witness, volunteered the opinion that McCabe, in giving the information
quoted , had done so because he misunderstood the questions of counsel for the Board.
The undersigned finds no merit in this contention.
as Dievler testified that he received a telephone call from Personnel Manager Fields on
the afternoon of April 24 , at which time he was advised by Fields that Sconfienza had been
suspended by Amalgamated Dievler promised to notify Sconfienza of his suspension
by the respondent companies , and the record indicates that he did so in the manner
indicated above.
an The Board makes no contention in the present proceeding that the employment of De
Santo was terminated in violation of the Act.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 183
Local 825 of the Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, and entirely without reference to Union
organizational activities."'
On the 13th of May, in accordance with the regular practice of the. respondents
in cases of suspension, W E Rice, superintendent of employment for the respond-
ents, wrote to Sconfienza and requested that he make "immediate arrangements"
to return the property of the company,61 which had been "furnished" to him at the
time of his appointment by the respondent.62 Sconfienza has rendered no further
service as an operator for Respondent Coordinated and Interstate.
B. Conclusions
1. Interference, restiaint, and coercion with respect to the concerted activity of
employees
The respondents contend that their admitted surveillance of the protest meetings
held in July of 1943 was justified by the reasonable apprehension that the meet-
ings might result in a further unauthorized strike. Since such a cessation of work
would have amounted to a violation of the no-strike pledge previously executed
by their employees, and would have constituted a serious impediment to war pro-
duction at the industrial establishments served by their transportation system,
the respondents argue that their concern to prevent a stoppage of work was
fully justified, and that surveillance of the meetings in question represented a
reasonable precaution directed to that end.
Although it may be conceded, for purposes of the present discussion, that the
respondents would be legitimately concerned over probable interruption of opera-
tions from strike activity of disgruntled employees; the undersigned finds no
basis in the present record for the contention that the meetings in question justi-
fied such concern, or that the measures which the respondents took were reason-
ably necessary to meet the situation at hand. The notice distributed to employees
contained no reference to any program of action which might be considered likely
60 Symington, when called as a witness for the respondents, testified as follows with
respect to the practice of the respondent companies upon the receipt of Anialganiated
demands for the suspension of employees :
. . we have suspended them in accordance with the request or demand of the
Amalgamated That goes back, to my knowledge . . I will be unable to give
you cases and so on but before the checkoff was put on the propeity we
had quite a bit of that When fellows refused to pay their dues or were backward in
their dues and so on. we had that Since the checkoff has come in, I believe there are
seven or eight individual cases where that procedure has been followed In some cases
the men have been put back after being reinstated in good standing in the union and
in others not
On cross-examination, however, Svmington implied that the respondents-in the period
before the check-off-had suspended employees at the request of the union merely upon
being advised that the employee was delinquent in his dues, and even in the absence of
evidence that Amalgamated had suspended him for such delinquency. No specific statistics
or names were mentioned
61 The equipment in question was identified by Personnel Manager Fields as a badge, a
punch, and a rule book, all of which are covered by a deposit deducted from the compensa-
tion of the employee Fields described the letter to Sconfienza as routine, and testified
that the deposit, iequired of the employee is returned upon the surrender of the equipment.
Similar letters, according to Fields, are sent to employees on leave of absence as well as all
suspended and terminated employees. He admitted that in cases of suspension, a request
for the surrender of equipment would ordinarily be sent to the suspended employee only
after 30 days, but insisted that the respondents had no set rule in this connection. '
62 Similar action had been taken with respect to Whalen and Straub within the month
which followed their suspension in November 1942.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to result in a strike. There is no substantial indication in the record that the
respondents had any other source of information, or any additional reason to
believe that operations were likely to be interrupted as a result of the meetings
in question.. The sponsors of the meeting had undertaken no overt act to im-
plement any threat, and nothing occurred at the meeting of July,15 to indicate
that there had ever been a basis for the fears upon which the respondents now
rely to justify their action at the time. Johnson, who attempted to justify his
presence in Hackensack by the contention that he had come "to find out if there
was going to be any trouble" on the following morning, admitted in cross-examina-
tion that he had made no effort, after arrival, to find out what had occurred at
the meeting under discussion
So far as the record shows, both of the meetings were called to discuss the
grievances of employees and the current status of negotiations with the re-
spondents for a new collective bargaining contract. The association of employees
for such discussion clearly represents concerted activity for mutual aid and pro-
tection within the meaning of the Act. The presence of company and Amalga-
mated representatives in the vicinity of the Junior Order Hall in Hackensack
and the Painters' Union Hall in Englewood, regardless of motivation, reasonably
tended to inhibit and did in fact inhibit the exercise by employees of their right
to engage in concerted activity for the purpose already stated. Upon the record,
therefore, the undersigned finds that the respondents, by the admitted presence
of their representatives in the vicinity of an employee meeting place on two
occasions in the month of July 1943, by the apparent activity of Johnson on the
first of these occasions, and by the further action of company representatives in
gathering on the sidewalk together with officials of the union to discourage the
entrance of employees to their chosen meeting place, interfered with, restrained
and coerced their employees in the exercise of rights guaranteed them by the
Act.
2. Other interference, restraint, and coercion
Although these is no indication that the respondents were activated by any
animus toward Sconfienza in their treatment of him between the protest meet-
ings of 1943 and the initial organization of United, the inception of the organiza-
tional campaign on behalf of the latter group resulted in the respondents, in the
person of their responsible supervisory officials, engaging in a course of conduct
which was reasonably calculated to convince employees that the respondents
desired to discourage their affiliation with the newly incorporated organization.
The statements of Belknap, an assistant depot manager, to the cleaners at the
Englewood garage clearly constituted gratuitous intervention in a field of em-
ployee activity expressly closed to employer interference by the Act. They went
beyond the mere expression of opinion which might, under other circumstances, be
considered a privileged exercise of the right to free speech. Insofar as the state-
ments in question included a threat that his hearers might possibly suffer the
loss of their employment if they joined United, the incident must be described
as one which was reasonably calculated to coerce the employ ees who heard him,
and to influence their decisions within the field of employee organization and -
concerted action, in a manner proscribed by the Act.
The remarks of l\iodersohn to Holden upon the sidewalk in front of the prop-
erty of the respondents at Cresskill, although they cannot be considered coercive
in character, constitute an indication of his attitude with respect to the orgamza
tional activity of United ; and they have been considered by the undersigned in
the evaluation of his subsequent conduct.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 185
Upon the record, the undersigned is satisfied that Holden and Altana correctly
identified the car which followed them from Cresskill to Englewood on the
evening of March 21st. It has been established, however, that the highway over
which they traveleil was a public highway, in general use by persons en route
from one community to the other, and that Modersohn customarily called at
Englewood in connection with his responsibilities as a supervisor, after com-
pleting his tour of duty at Cresskill The fact that Modersohn "trailed" the
organizers of United from his post of duty to Englewood, therefore, appears
to have been fortuitous ; the undersigned, in any event, does not believe that the
present record is sufficient to establish its character as part of a deliberate design
on the part of the respondents to interfere with the organizational campaign
of United
A similar statement, however, cannot be made with respect to the activities
of Modersohn at Englewood Whatever may have been his motivation in stop-
ping at the garage, the record is clear that, Modersolin was advised by Altana
upon his arrival that his presence would interfere with the efforts of Altana
and Holden to solicit membership on behalf of United. Modersohn's statement
that he intended to "stick around," in the light of all the circumstances, clearly
represents an effort to achieve the objective protested by Altana While the
record contains no direct evidence that the employees who left the garage at
the time avoided Altana because of the presence of Modersolin, the inference is
clear, and the undersigned so finds The conduct of Modersohn, therefore, must
be characterized as deliberate interference with the exercise by employees of the
rights guaranteed by the Act.
The respondents attempted to explain the presence of Dievler and Johnson at
the municipal terminal in Hackensack on the evening of March 22 by evidence
tending to show that the men were present in their official capacity, to check
upon the operation of a new express service which had been started on that
day by a competitive transportation system. Upon the entire record, the under-
signed considers it likely that this was in fact the case Elaborately detailed
testimony with respect to the movements of all the individuals involved estab-
lishes, in the opinion of the undersigned, that the movements of Dievler and
Johnson in and about the terminal, and between the terminal and the Hacken-
sack garage, were motivated primarily by the legitimate business concerns which
brought them to the terminal in the original instance. Although the walk under-
taken by Dievler, in the course of which he took advantage of an opportunity
to determine the identity of the individuals involved in conversation with Whalen,
gives ground for suspicion that his motives were somewhat mixed, the explana-
tion which he offered cannot be characterized as improbable or unworthy of
belief. Nor can it be said that the action of Dievler and Johnson in walking
from the terminal to the garage was motivated entirely or substantially by the
desire to keep Whalen and Eckert under surveillance.63 Upon the entire record, the,
undersigned is satisfied that the presence of Dievler and Johnson at the municipal
terminal was motivated primarily by legitimate business considerations which
bore no relationship to the organizational activity of Whalen and Eckert. While
they may have observed, and probably did observe, the presence of Whalen and
Eckert, there is no evidence that a substantial part of their activity on the evening
in question was devoted to such observation; and in view of the legitimate business
e3 Eckert admitted in cross-examination that there were two "normal" routes to take in
going from the Hackensack municipal terminal to the Hackensack garage The record
indicates that Eckert and Whalen followed one such route , while Dievler and Johnson took
the other.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons for their presence at the terminal, the incidental fact that their presence
on the spot may have inhibited organizational activity by employees cannot be
considered sufficient, in the opinion of the undersigned, to warrant a finding of
interference, restraint, or coercion.
An opposite conclusion, however, must be reached with respect to the sur-
veillance which accompanied the luncheon hour talk by Altana at Hackensack.
The undersigned observes in this connection that the presence of Dick within the
doorway of the garage was noted by Holden before the time at which the luncheon
hour would normally have been concluded. It is particularly significant, there-
fore, that the regular whistle which signalled the termination of the luncheon
hour was not blown at the usual time, and that Altana and the employees were
permitted to remain in ignorance of the fact that the solicitation of the latter
had extended into working time Upon the basis of Holden's credited testimony,
it is apparent that Dick, upon becoming aware of Altana's activity, chose to utilize
the opportunity presented by the shadows of the open doorway to eavesdrop upon
the conversation. Upon this state of the record, the absence of evidence that
any of the'employees were aware of this action by Dick at the time, or that
any employees were subjected to discrimination as a result of the information
he gained represents an immaterial consideration, and the conduct of Dick must
be considered nonetheless an interference with the rights of employees under the
Act "'
Upon the record viewed as a whole, the undersigned is convinced and finds that
the conduct of the respondents, in the person of the several supervisory officials
for whose acts and statements they must be held responsible, and specifically the
statements of Belknap at Englewood, the admitted surveillance of organizational
activity by Alodersohn at the same garage, and the utilization by Dick of the
opportunity fortuitously presented for him to overhear the organizational efforts
of Altana, constituted a course of conduct which was reasonably calculated, and
which did in fact, interfere with, restrain, and coerce employees of the respondents
in the exercise of rights guaranteed by the Act.
3. The discharge of Sconfienza
a. The contractual obligation of the respondents
Counsel for the respondents and Amalgamated present as their basic contention
in the instant case the argument that Sconfienza was suspended by the latter
organization, and assert by way of defense that the action taken by the respondent
companies with respect to Sconfienza was mandatory for the respondents under
the terms of their current agreement with Amalgamated, which required the
maintenance of membership in that organization as a condition of employment.
The proviso to Section 8 (3) of the Act-upon which the respondents and
Amalgamated rely to sustain the contract which allegedly justifies their action-
does, in effect, permit the discriminatory treatment of employees, with respect to
their hire or tenure of employment, to encourage or discourage membership in a
labor organization, when undertaken pursuant to an agreement, validly made,
which requires as a condition of employment that employees maintain their
membership in the labor organization which is a party to the contract.0t In the
GIN. L. R B v The Grower-Slipper Vegetable Association, 122 F. (2d) 368 (C. C A.
9) ; Bethlehem Steel Co v N L R B, 74 App 1) C 52, 120 F (2d) 641.
05 The proviso reads as follows : "Nothing in this Act . shall preclude an employer
from making an agreement with a labor organization (not established, maintained, or
assisted by any action defined in this Act as an unfair labor practice) to require, as a
PUBLIC SERVICE CORPORATION OF NEW JERSEY- 187
light of the circumstances revealed by the present record, however, the require-
ments of the proviso and the privilege implicit in its terms must be considered
immaterial and irrelevant in the instant case.
A clause which required the maintenance of membership was present, it is
true, in the particular contract between the respondents and Amalgamated
which was in effect at the time of Sconfienza's suspension. It must be noted
in this connection, however, that Sconfienza was not deprived of his membership
in Amalgamated by the action of its trial board. President McCabe, who acted
as the chairman of the board, specifically distinguished its action with respect
to Sconfienza from, expulsion, and admitted that Sconfienza's suspension did not
effect his status as a member, except insofar as it deprived him of good standing.
The distinction is crucial for the purposes of the present proceeding 06 The
constitution and general laws of Amalgamated specifically distinguish between
the suspension and expulsion of a member, in several distinct respects " It
follows, and the undersigned finds, that the suspension of Sconfienza as the
result of his refusal to stand a trial before the executive board of Division 825
cannot be considered tantamount to expulsion, and that Sconfienza, although
he lost "good standing" in the organization as a result, was not deprived of his
membership status by the judgment of the Division executive board, already
noted.08
condition of employment , membership therein , if such labor organization is the repre-
sentative of the employees as provided in Section 9 (a) in the appropriate collective
bargaining unit covered by such agreement when made"
G° Counsel for the respondents recognized the propriety of the distinction under dis-
cussion , in the cross -examination of Sconfienza on another aspect of the case-with respect
to which the record reads as follows :
Q We will put it this way : You were a member?
A. Yes
Q Whether you were a member in good standing or just a member?
A All right.
Sections 32 and 33, for example , which deal with the powers of the General Execu-
tive Board , specifically mention the authority of that body to suspend officers or members
of a local division for violation of the laws and policies of the Association, and the
correlative right of the General Executive Board to suspend or expel an international
officer or organizer for proven violation of the laws and policies of the Association Sec-
tion 70, which deals with the qualifications of members , establishes a specific procedure
for the acceptance into membership of persons previously "expelled or suspended" by
a local division . Section 84 , which deals with the duties of members, provides , inter alia,
that members who give out information contrary to the rules of a local division shall be
"fined , suspended or expelled ." Sections 103 and 105 , which deal with funeral and
disability benefits, define at length the obligation of the Association "where a member
is suspended , expelled or has withdrawn his membership ," and further provide that mem-
bers presenting fraudulent claims "shall be expelled from membership " upon proof thereof
The sections which deal with dues , suspensions and reinstatements , however , contain
provision only for the suspension of members who become delinquent in their financial
obligations to the Association . Most significantly , also , it should be noted that Section
78, which deals with trials , appeals and grievances , makes no specific provision for the
type of judgment to be rendered upon charges preferred against a member. It provides
only that where a member is reported for slandering , falsifying or using language detri-
mental to the Association , in violation of his obligation , and refuses to appear before
the executive board of the local division for an investigation of the report, "such member
shall stand suspended " from the Association "until such time as lie does appear " Upon
the entire record , then , the undersigned concludes and finds that the constitution of
Amalgamated , in the various provisions cited, differentiates specifically between the pen-
alty of suspension and expulsion , and that the effect of a judgment of suspension, by the
specific terms of the document in question , is to deprive the member subjected to that
judgment to the loss of membership in good standing only
08 Under the terms of the current agreement the regular dues of Sconfienza for the
month of April had already been checked off by the respondent companies.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, by the terms of their agreement with Amalgamated, were
obligated, it is true, to require membership in that organization on the part of
their employees; they were not, however, under any specific obligation whatso-
ever to terminate the employment of persons who had merely lost good standing
Counsel for the respondents and Amalgamated contend that the action of the
parties with respect to Sconfienza was consistent with their regular practice
under the- agreement in other cases, and that the provisions of the agreement
upon which the respondents rely should be interpreted in the light of the practice
established in earlier cases of suspension by the union. The undersigned notes
particularly, however, the testimony of Vice-President Symington, who stated
that the membership maintenance clause, in its present form, had been in-
corporated in the agreement without any discussion whatever of its application
to instances of suspension, and that the first occasion upon which Amalgamated
requested company action with respect to a suspended member was followed
by his suspension from employment without any consultation whatsoever between
the parties to the contract, upon the basis of a bare assumption by the respondents
that the terms of their agreement required such action upon the request of the
union. Symington could recall no instance in which the respondents had been
requested to act upon the expulsion of a member by Amalgamated. With the
exception of employees suspended for their part in the unauthorized strike of
November 1942, and the action taken with respect to Sconfienza himself, the parties
could cite only three additional instances in which the respondent had suspended
from employment individuals suspended by Amalgamated. In the opinion of the
undersigned, the limited experience of the parties with the application of the
clause, over a period of 27 years, constitutes insufficient ground for the establish-
ment of a practice, particularly where the construction upon which the parties
rely is clearly inconsistent with the express provisions of their agreement, and
where there is no effective indication that any understanding, oral or otherwise,
existed at the time the clause was framed with respect to the manner in which
it would be applied. Upon the record, therefore, it is clear that the action of the
respondents cannot be justified or explained as mere compliance with their
contractual obligation.
Despite this fact, the respondents suspended Scontienza. Their action in this
regard, whatever its legal significance may be, operated to deprive him of the
opportunity to work and earn his livelihood in the service of respondents, and
must be considered, in practical effect. as tantamount to discharge 69
Counsel for the respondent companies referred, in passing, to the fact that
Sconfienza had failed to pursue his contractual remedies under the grievance
procedure established by the agreement, and had made no appeal to higher
officials of the respondent companies for a reversal of their action with respect
to hire. The argument assumes that such an appeal would have resulted in a
full consideration of the problem The undersigned finds no warrant in the
record for this assumption. In any event, due consideration of the jurisdiction
vested in the Board with respect to the prevention of unfair labor practices and
the enforcement of the Act compels the conclusion that the failure of Sconfienza
to take the action suggested cannot be considered to constitute a sufficiently
cogent reason for the denial of statutory relief.
Respondents also contend that earlier charges under the Act with respect to
the suspension of employees active in the November 1942 strike were "dis-
69 The respondents admit that a "separation report" was filed with the State Unem-
ployment Compensation Commission at the time when Sconfienza was suspended , and that
his last day of work was given in that report as April 24, 1946.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 189
missed" administratively and resulted in the refusal of the Regional Director
to issue a complaint against the respondents. It is argued that his refusal to
act, in view of the defenses presented by the respondents at the time, must be
construed as an acknowledgment by the Board that the respondents properly
relied upon their contract with Amalgamated in suspending the individuals in-
volved in the charge. Respondents contend, in effect, that the Board is estopped
thereby from arguing in the instant case that the contract clause in question
contains no justification for the suspension of Sconfienza. It is well established,
however, that a refusal of the Regional Director to issue a complaint and
notice of hearing represents purely administrative action, and cannot be said
to bind the Board. The refusal of the Regional Director to act upon the charges, in
short, cannot be construed as equivalent to a decision on the merits.'0 The
undersigned, accordingly, finds the contention of the respondents in this con-
nection to be lacking in merit, and it is hereby rejected.
It follows, and the undersigned finds, that the action of the respondents,
undertaken with knowledge of the activities of Sconfienza on behalf of United,
constituted discrimination with respect to his tenure of employment for the
accomplishment of an objective forbidden by the Act; and since it represented
action above and beyond the obligation of the respondents under their contract
with Amalgamated, it cannot be considered privileged under the terms of the
8 (3) proviso
The undersigned also notes the existence of a further ground for this decision
which, although not argued at the hearing, is implicit in the allegations of the
complaint and fully supported by the record. Reference is made to the fact
that the contract upon which the respondents rely clearly constitutes, by its
terms, a contract for the "members" of Amalgamated and for the "members"
only. Although it may be true that every eligible employee of both respondent
companies is now a member of the union, this development must be regarded
as fortuitous; it does not derive from any provision of the agreement which
governs the relations of the parties. The proviso to Section 8 (3), however,
specifically provides that agreements of the type it was framed to protect will be
considered valid only if the labor organization involved is the "representative"
of employees "as provided in Section 9 (a)" of the Act in the appropriate col
lective bargaining unit covered by such agreement when made. Section 9 (a),
in turn, would seem to require that particular agreements, to be protected by
the proviso, must be agreements negotiated by an "exclusive representative" of
the employees. And since Amalgamated, in the instant case, has never been rec-
ognized by contract as the "exclusive representative" of persons in the employ
of Respondents Coordinated and Interstate, it would seem to follow that the
respondents and Amalgamated cannot claim for the union security clauses of
their agreement the immunity accorded such arrangements when negotiated by
a union which has been accorded the exclusive recognition to which it is entitled
under the Act. The undersigned so finds.
It follows, then, that the contract upon -which the respondents rely is not the
type of agreement contemplated by the proviso, and that the respondents cannot
rely upon the agreement to justify their action in suspending Sconfienza
70N. L. R B v T W. Phillips Gas and Oil Company, 141 F. (2d) 329 (C C. A. 3) ;
N. L R B. v Baltimore Transit Company, 140 F. (2d) 51 (C. C. A. 4) ; Republic Steel
Corporation, 62 N L R. B 1008.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The legal obligation of the respondents
The conclusions expressed above, in the opinion of the undersigned, fully dis-
pose of the issues presented by the instant case. The case was also tried. how-
ever, and was principally litigated, in fact, upon the contention of counsel for
the Board that the defenses of the respondent companies must fail in any event,
even if the application of the agreement is assumed to be correct, and even if
the agreement is assumed to be one which falls within the ambit of the proviso
to Section 8 (3) of the Act, in view of the pruncip es enunciated in the Mat (em of
Rutland Court Owners, Inc." and the related decisions of the Board The as-
serted application of the doctrine there enunciated to the facts of the instant
case will therefore be considered.
It was held in the case now under discussion that it was an unfair labor
practice, violative of Section 8 (3) of the Act, for an employer to discharge an
employee, even at the request of a union holding a closed shop contract, when
the employer knew at the time of the discharge that the contracting union had
expelled the employee from membership and requested his discharge because
he sought to exercise the statutory right to change his union affiliation and
collective bargaining representative within the period immediately antecedent
to the expiration date of the agreement between the union and employer. After
noting the legislative history of the proviso to Section 8 (3) of the Act, relied
upon by the respondent and intervenor in the case to justify the action of the
respondent therein, the Board concluded and found that it was not "a severable
and separate portion" of the statute, that it "must be construed in the light of
the statutory statement of policy," and that if apparent conflicts arise "they
should be resolved so as to give proper effect to the salient provisions of the
Act." It was pointed out by the Board that the "express purpose of the Act is
to insure employees of their own right of self-organization and a free choice of
representatives," and that to be meaningful this right of the employees to select
a representative of their own free choice must necessarily include the right to
change the representative "at some appropriate time." The purpose of the Act
would be defeated, said the Board, if the proviso were considered as "an instru-
ment for depriving employees of their statutory rights to select another repre-
sentative for a period succeeding a term embraced by the closed shop contract "
The decision went on to point out that any affirmation of the employer's right
to discharge the very employees whose representation was in issue, would be
"clearly inconsistent with the whole policy and general scheme of the Act," since
such a ruling "would mean that an employer and a union official, acting in con-
cert, could maintain one labor organization in perpetuity as the bargaining repre-
sentative by the simple device of expelling any employee who wished to have
a different representative when the question of the renewal of the contract arose "
Upon the view of the facts and the law which the undersigned has adopted
at this point for the purposes of argument, the rationale of the Board's decision
in Rutland Court, as summarized, above, is clearly applicable here. Sconfienza's
membership in United, and his organizational activity on behalf of that organi-
zation are established by the record, and have not been disputed in this pro-
ceeding. His activities in this connection were carried on within the period
immediately antecedent to the expiration date of the existing contract between
the respondents and Amalgamated-the period characterized in decisions based
upon Rutland Court as a "protected period" within which a petition for the
71 44 N L It B 587, 46 N L. R. B. 1040.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 191
certification of representatives might properly have been filed." His activity on
behalf of United, as found by the undersigned, was known to the respondents.
The record establishes also that Sconfienza was suspended by Amalgamated be-
cause of his activities on behalf of United, that the organization which suspended
him requested his suspension from employment by the respondents under the
membership maintenance clause in their contract, and that the respondents were
fully advised, at the time of Amalgamated's request, that one of the reasons for
the action of Amalgamated was the known activity of Sconfienza on behalf of a
rival union. Under the circumstances revealed by the record, then, accommoda-
tion to the fundamental purposes of the Act would require, as in Rutland Court
and related cases, that the contractual restriction relied upon by the respondents,
and otherwise sanctioned by the proviso to Section S (3) of the Act, give way
before the more basic right of employees to change their representatives without
the fear of reprisal by the respondents In the light of the evidence as to the
knowledge of the respondents with respect to the motive for the request of Amal-
gamated, the undersigned is convinced and finds that the respondents were not
required, in conformity with that request, to terminate the services of Sconfienza.
On the contrary, the respondents-having notice of the illegal purpose behind
the request-were obligated as a matter of law to refuse compliance therewith,
and having effected the suspension without regard to their obligation under the
Act, the respondents must be held accountable for the discriminatory effect of
the action which they took.
The respondents contend that the rationale of Rutland Court and related cases
would have no application to the instant case in any event because the activity
of Sconfienza on behalf of United did not occur within a "protected period"
immediately antcc:.dent to the end of the contract term, as defined in the cases
cited In support of this contention, respondents allege that the petition orig-
inally filed by United requested the certification of that organization as the bar-
gaining agent of employees within a unit obviously inappropriate for the purposes
of collective bargaining, that the respondents had been given information to that
effect by a responsible agent of the Board, and that the petition was ineffective,
therefore, to raise a question of representation.
Despite the latter contention, however, upon which the undersigned makes
no determination, the petition of United must be held sufficient to have put the
respondents on notice that the claims of the petitioner had been submitted for
administrative determination. In view of the possibilities inherent in the Board's
administrative process for the later amendment of a petitioner' s unit claim,
respondents cannot and should not be heard to argue that the activities of
Sconfienza and the other active organizers were outside the scope of concerted
activity protected by the Act merely by virtue of technical imperfections, if
any, in the document by which United sought to initiate its case. And even if
it be assumed, for the purposes of argument, that the position of respondents in
this respect has merit, the undersigned concludes and finds, nevertheless, that
the activity of Sconfienza on behalf of United was in fact initiated during a
"protected period" since it began at a period within which an effective petition
might properly have been filed. It is true that these activities had their incep-
tion approximately 4 months before the prospective termination date of the cur-
72 It is worthy of note, in passing, that the contract under which the emplovnient of
Sconfienza was suspended was reopened by a letter from Amalgamated on April 29, 1946,
only 5 days after his separation, pursuant to the 60-day reopening clause embodied in that
agreement , and was subsequently replaced by a new agreeemnt effective on July 1, 1946.
The organizational activity of United had been undertaken only 7 weeks before.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rent agreement between the respondents and Amalgamated. They began,
however, only 7 weeks before the automatic renewal date established by the
contract. The size and geographical distribution of the bargaining unit estab-
lished by the agreement, as well as the membership maintenance clause contained
therein, created a situation which would amply justify the conclusion that organi-
zational activity on behalf of rival union, initiated as much as 7 weeks before the
automatic renewal date of a current contract and 4 months before the termination
date did not unduly anticipate the opportunity created by such contractual ar-
rangements for a change in representatives. The contention of the respondents in
this connection, therefore, must be held to be lacking in merit.
In addition, and even if it be further assumed that the activities of Sconfienza
did in fact anticipate the "protected period" established by the rationale of
Rutland Court and related cases, the undersigned concludes and finds that his
activities on behalf of the United were protected nevertheless, since the record
establishes that his solicitation of employees was not intended to unseat Amalgam-
ated as their representative before the termination date of the contract then
in effect, but was, instead, expressly limited to the creation of an interest among
the employees sufficiently large to justify a challenge to the representative
status of Amalgamated at an appropriate time toward the end of its contract
term.73
Counsel for the respondents and Amalgamated contend, consistently with the
testimony of General Manager Warner, Business Agent Seward and President
McCabe on direct examination, that the rationale of Rutland Court and related
cases has no application here because the respondents, upon their inquiry as to
the reasons for the suspension of Sconfienza by Amalgamated, were merely in-
formed that he had been suspended for slandering the officers and members of
that organization. The undersigned, as noted elsewhere in this report, has found
this contention to be contrary to the fact. Amalgamated, however, takes the
further position in this connection that respondents would be obligated to honor
the request of Amalgamated for the suspension of Sconfienza even if McCabe, con-
sistently with the findings of the undersigned, had actually reported to the re-
spondents all of the reasons for the action of Amalgamated in suspending him from
membership. This contention, essentially, is based upon the argument that the
rationale of Rutland Court and related cases is applicable only to cases in which
the employer is apprised that the sole and exclusive reason for a union's request
for a discharge under the terms of a union security clause lies in the activity of
the employee involved on behalf of a rival union. Counsel argues that the exist-
ence of grounds for expulsion other than the dual unionism of the employee,
known to the employer, removes the instant case from the category of cases in
which the Board should be alert to extend the shield of its administrative discre-
tion. It is asserted , in substance , that the Act was not designed to extend pro-
tection against discharge to employees subjected to suspension or expulsion
by an incumbent union , when the action taken is based in part upon activity not
related directly to the organizational campaign of a rival organization.
73 Cf Matter of Southwestern Portland Cement Company, 65 N. L It B. 1, in which the
Board held that activity on behalf of a rival union (luring the vital period of a current
contract between the respondent and an incumbent union was not protected activity within
the meaning of Rutland Court and related cases because there was no indication that the
organizational activity on the employee expelled by the union and subsequently discharged
by the respondent was limited, as to purpose, in the manner described above.
PUBLIC SERVICE CORPORATION OF NEW JERSEY 193
The contention, however, is equally lacking in merit. As noted elsewhere
in this report, the suspension of Sconfienza and the demand of Amalgamated for
correlative action by the respondents, was induced, as the respondents knew, at
least in substantial part by the activities of the employee in question on behalf of
United, and would not have occurred in fact, if it were not for his activities in
this connection." Such a finding, when supported by the evidence, is conclusive
on the issues presented for the Board's determination in cases of the type now
under discussion. The obligation of the Board to decide whether employees have
been subjected to illegal discrimination in their employment as the result of
activities protected by the Act is fixed by the statute ; it may be taken as datums
that its obligation in this respect cannot be delegated to a union for determination.
In terms of the issue now presented by the contentions of Amalgamated, this can
only mean that the Board must continue to be free to exercise its uninhibited
judgment in cases of this type as to the presence or absence of intent to circum-
vent the objectives of the Act. The Board, in cases of discriminatory discharge,
is not bound and has never been bound to accept the reason assigned by an em-
ployer for action which affects the hire or tenure of employees, when it is per-
suaded by the entire record that the reason assigned is merely a pretext rather
than the genuine basis for employer action. Similarly, in cases such as this, the
Board cannot be bound to accept without question the reasons assigned for the
suspension or expulsion of a union member, when it appears from the record
as a whole, as here, that the action of the union, known to the employer, was
bottomed in whole or in substantial part upon those activities of the employee
involved which are protected by the Act It the doctrine of Rutland Court and
related cases could only be applied to situations in which the union admitted
that the suspension or expulsion which led to a request for company action was
based exclusively upon the activities of the employee on behalf of a rival union,
the obstacle to the achievement of the statutory objectives which the rule was
expressly designed to meet would never be eradicated ; only the method of its
perpetuation would be changed. The contentions of Amalgamated in this con-
nection are, accordingly, rejected.
Upon the basis of the present record, also, there exists a further reason for
the conclusion that the position of the respondents and Amalgamated has no
warrant in law. Assuming, for the purposes of argument, that the information
provided by President McCabe as to the reasons for the suspension of Sconfienza
was limited in fact to the bare announcement that he had been suspended for
slandering union officers and members, the record indicates, nevertheless, that
the respondents were thereafter put on notice, by the letter from Meyer Pesia,
that Sconfienza had actually been suspended by Amalgamated for his activity
on behalf of a rival union. Respondents argue, in this connection, that the
obligation to take appropriate action with respect to Sconfienza under the union
security clause of their agreement became fixed upon the demand of Amalga-
mated for such action, and that information thereafter acquired, however accu-
rate it might be, could not alter the obligation of the respondents, or impose
upon them a further obligation to accommodate their action to the purposes of
Y{ Leonard Mills admitted that Sconfienza had leveled charges of mismanagement and
embezzlement at officials of Amalgamated as early as 1943 Similar testimony was given
by John Moles, another member of Amalgamated The record contains no indication that
tornial charges against him were even considwied at the time
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act.'s In this connection, however, the undersigned notes once more the
vigorous contention of the respondents that Sconflenza, after the company action
of which complaint is made herein, had not yet lost his status as an employee,
and was merely suspended until such time as he might be restored to member-
ship in good standing by Amalgamated. Assuming, without deciding, that this
was-in fact the case, it follows that the respondents-upon being advised by
Sconfienza's attorney, in his letter of April 25, that the action of Amalgamated
and its request for correlative action by the company had their origin in the
activities of Sconfienza on behalf of a rival union-were free to undertake what-
ever action might be necessary to determine the truth of this contention, and
to lift the suspension of Sconfienza if their investigation revealed the conten-
tions of his attorney to be consistent with the fact. Although the assertions
made on behalf of Sconflenza in the letter under discussion were advanced
without the citation of supporting evidence, and although the respondents, as
a result, were under no obligation to accept the assertions as true, the fact of
the matter is, and the record shows, that the respondents, in the person of their
responsible supervisory officials, knew that Sconflenza had been engaged in the
solicitation of membership applications on behalf of United before his suspen-
sion by Amalgamated, and could reasonably infer, on the basis of their earlier
knowledge, that the charges made by Pesin, as to the actual reason for the
action of Amalgamated and its subsequent demand upon the respondents, were
correct.
And even if this were not the case, it must still be said that the respondents,
upon receiving information as to the reason for Sconflenza's suspension by Amal-
gamated inconsistent with the information previously given them by accredited
representatives of that organization, were under a duty, in the light of all the
circumstances revealed by the present record, to inquire further as to the actual
reason for the action of the union and its demand, for correlative action by the
respondents Having failed to undertake the investigation indicated, and having
relied instead upon the representations of Amalgamated with respect to the
reasons for its request, the respondents would have to be held responsible for
their action in suspending the employee involved when subsequent investigation
revealed that Sconflenza was in fact suspended by the incumbent union primarily
because of his activities on behalf of a rival organization.
Under the circumstances set forth in the record, it follows under any view
of the facts set forth in this report that the respondents, as already noted, were
not required upon the request of Amalgamated to suspend the employment of
Sconfienza under the terms of their contracts with that organization The under-
signed so finds. The respondents instead were obligated, by the terms of this
agreement and a matter of law, to refuse compliance with the request, or to
rescind the action taken after being placed on notice as to the actual facts
thereafter. Since the respondents complied with the request when made, and
took no action to rescind the suspension of Sconfienza thereafter, it follows
that they must be held accountable for the consequences of their action The
undersigned, therefore, concludes and finds that the respondents, by their sus-
pension of Frederick C. Sconfienza on April 24, 1946, and their failure to reinstate
45 Cf Matter of Cliffs Dow Chemical Company, 64 N L. R B 1419, in which the Board
accepted a contention of the respondent that information as to the basis of a discharge
demand by the incumbent union, acquired at the heaiing in proceedings before the Board,
did not create an obligation on the part of the respondent to reinstate the employee
involved
PUBLIC SERVICE CORPORATION OF NEW JERSEY 195
him to employment thereafter, have discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in United, encouraging
membership in Amalgamated, and interfering with, restraining, and coercing
their employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents Coordinated and Interstate set forth in Section
III, above, occurring in connection with the operations of these respondents as
set forth 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
Since it has been found that Respondents Coordinated and Interstate have
engaged in unfair labor practices, it will be recommended that they cease and
desist therefrom, and take certain affirmative action necessary to effectuate the
policies of the Act
It has been found that the respondents aforesaid, on April 24, 1946, discrimina-
torily terminated the employment of Frederick C. Sconfienza, and thereafter
refused to reinstate him, because he had joined or assisted a labor organization
and engaged in concerted activities for the purpose of collective bargaining or
other mutual aid and protection. It will be recommended therefore that the
respondents offer to Frederick C. Sconfienza immediate and full reinstatement to
his former or a substantially equivalent position " without prejudice to his
seniority and other rights and privileges. It will be recommended further that
the respondents make whole the said Frederick C. Sconfienza for any loss of
pay he may have suffered by reason of the discrimination against him, by the
payment to him of a sum of money equal to the amount which he normally
would have earned as wages from April 24, 1946, the date of his discriminatory
separation from employment, to the date of the reinstatement offer by the re-
spondents recommended herein, less his net earnings" during such period.
Upon the entire record, also, the undersigned is convinced and finds that
Respondents Coordinated and Interstate, by the course of conduct outlined herein,
have disclosed a determination to interfere generally with the concerted activity
of their employees for the purpose of mutual aid or protection, and to restrain
or coerce employees in their exercise of the right to self-organization guaranteed
by the Act. The admitted surveillance of employee activity, on various occasions
in 1943, established clearly the interest of the respondents in the preservation
of their current collective bargaining relationship with Amalgamated. More
recently, the efforts of their supervisory and management personnel to discour-
age membership in United by surveillance of the organizational activity under-
"In accordance with the Board ' s consistent interpretation of the term , the expression
"foi mer or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N L R B 827
"By net earnings " is meant eainings 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 respondents , which would not have been incurred but for his unlawful
dischaige and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N L R B 440. monies received for work performed upon
Federal , State, county, municipal , or other Mork-relief projects shall be considered as
earnings See Republic Steel Corporation v. N L. R B, 311 U S. 7
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken on its behalf, by the presentation of arguments calculated to dissuade
employees from affiliation with that organization, and by the ultimate separa-
tion of Sconfienza from his employment because of activity on behalf of United,
reaffirmed and emphasized the fixed determination of the respondents to pre-
serve their current relationship with Amalgamated, and served effectively to
convey the impression that the interests of their employees would best be served
by their repudiation of the charging union. The totality of the respondents' con-
duct, in the opinion of the undersigned, reveals a settled intention to defeat
self-organization and its objects among the employees, by every available means,
in circumstances which contain the threat of continued and varied efforts to
attain the same end in the future.RB Because of the unlawful conduct for which
the respondents are responsible, and the underlying attitude of opposition to the
objectives of the Act revealed thereby, the undersigned is convinced and finds
that the unfair labor practices found are closely related to the other unfair labor
practices proscribed by the Act, and that a danger of their commission in the
future is to be anticipated flour the conduct of the respondents in the past. The
preventive purposes of the Act may be frustrated unless the order of the Board
is coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices and thereby to miniinize industrial strife which burdens and obstructs com-
merce. and thus to effectuate the policies of the Act, the undersigned will further
recommend that the respondents be ordered to cease and desist from interfering
with, restraining, or coercing their employees in any other manner, in the exercise
of the rights guaranteed by the Act.
Since the unfair labor practices in question, although nominally confined to
the Bergen Division, necessarily affect the rights of employees throughout the
transportation system of the respondents, it will be recommended, also, that
the order of the Board provide for the customary appropriate notices, required to
effectuate the policies of the Act, to he posted by the respondents throughout
their transportation system in the State of New Jersey, at all the places of
business where employees of the respondents are engaged, in ori'er to advise
employees that the respondents will comply with the recommendations embodied
in this report.
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS or Li,w
1. The United Transport Workers of America, unaffiliated, and the Amal-
gamated Association of Street, Electric Railway and Motor Coach Employees of
America, affiliated with the American Federation of Labor, are labor organiza-
tions within the meaning of Section 2 (5) of the Act
2. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondents Coordinated
and Interstate have engaged in, and are engaging in, unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Frederick C. Sconfienza, thereby discouraging membership of the United Trans-
port Workers of America, unaffiliated, and encouraging membership in the Amal-
gamated Association of Street, Electric Railway and Motor Coach Employees of
78 N L R . B. v. Express Publishdn0 Company , 312 U S 426 , 438, N L R B V' Bradley
Lumber Company of Arkansas , 128 F ( 2d) 768 , 771 (C C. A 8).
PUBLIC SERVICE CORPORATION OF NEW JERSEY 197
America, affiliated with the American Federation of Labor, Respondents Co-
ordinated and Interstate have engaged in, and are engaging in, unfair labor
practices within the meaning of Section 8 (3) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent Public Service has not engaged in, and is not engaging in, unfair
labor practices within the meaning of Section S (1) and (3) of the Act
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Public Service Coordinated Transport
and Public Service Interstate Transportation Company, Newark, New Jersey,
and their officers, agents, successors, and assigns shall :
1 Cease and desist from:
(a) Discouraging membership in the United Transport Woikers of America,
unaffiliated, or any other labor organization of their employees, or encouraging
membership in the Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, affiliated with the American Federation of
Labor, by discharging or refusing to reinstate any of their employees, or by
discriminating in any other planner with respect to their hire or tenure of
employment or any term or condition of employment,
(b) Utilizing, applying or administering the provisions of their contract with
Amalgamated Association of Street, Electric Railway and Motor Coach Em-
ployees of America, A F of L, or any similar contract executed in the future,
in Such manner as to discourage membership in the United Transport Workers
of America, unaffiliated, or any other labor organization of their employees, by
discharging or otherwise discriminating against any of their employees for
exercising their rights under the National Labor Relations Act to engage in activi-
ties directed toward the designation of a new collective bargaining representa-
tive at some appropriate time,
(c) In any other manner interfering with, restraining, or coercing their
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist United Transport Workers of America or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities foi the purpose of collective bar-
gaining or other mutual aid or protectn,n, as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Frederick C Sconfienza immediate and full reinstatement to
his former or substantially equivalent position," without prejudice to his seniority
and other rights and privileges ;
(b) 1\Iake whole Frederick C. Sconfienza for any loss of pay he may have
suffered by reason of the respondents' dhscrinnination against him, by payment to
him of a sum of money equal to the amount he normally would have earned as
wages during the period from April 24. 1946, the date of his suspension, to the
date of the respondents' offer of reinstatement, less his net earnings 80 during
such period ;
(c) Post throughout their transportation system in the State of New Jersey,
at all places of business where their employees are engaged, copies of the notice
TD See footnote 76, supra
80 See footnote 77, supra
785886-49-vol 77 14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
attached hereto marked "Appendix A." Copies of the said notice, to be fur-
nished by the Regional Director for the Second Region, after being duly signed
by the respondents' representatives, shall be posted by the respondents immedi-
ately upon receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the re-
spondents to insure that said notices are not altered, defaced, or covered by any
other material ;
(d) File with the Regional Director for the Second Region, on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and forau in which the respondents
have complied with the foregoing recommendations.
It is recommended that unless the respondents notify the said Regional Director
in writing within ten (10) days from the (late of the receipt of this Intermediate
Report that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondents to take the
action aforesaid.
It is further recommended that the complaint be dismissed insofar as it al-
leges that Public Service Corporation of New Jersey has engaged in, or is engaging
in, unfair labor practices within the meaning of the Act
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1916, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 20338 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Repoit or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Diiector. Proof of service on the other
Parties of all papers filed with the Board shall be promptly made as required by
Section 203.65. As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board
MAURICE M. MILLER,
Trial Examiner.
Dated February 25, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WVE W ILL NOT discourage membership in the UNITED TRANSPORT WORKERS-OF
AMERICA, unaffiliated, or any other labor organization of our employees, or
encourage membership in the AMALGAMATED ASSOCIATION OF SrREET, ELECTRIC
PUBLIC SERVICE CORPORATION OF NEW JERSEY 199
RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, A. F. OF L., by discharg-
ing or refusing to reinstate any of our employees, or by discriminating in any
other manner with respect to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT utilize, apply or administer the provisions of our contract
with the AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAY AND MOTOR
COACH EMPLOYEES OF AMERICk, A. F. of L., or any similar contract executed
in the future, in such manner as to discourage membership in the UNITED
TRANSPORT WORKERS OF AMERICA, unaffiliated, or any other labor organization
of our employees, by discharging or otherwise discriminating against any
of our employees for exercising their rights under the National Labor Rela-
tions Act to engage in activities directed toward the designation of a new
collective bargaining representative at some appropriate time.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED TRANSPORT WORKERS OF AMERICA Or
any other labor organization. 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.
WE WILL OFFER to the employee named below immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to
any seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as the result of the discrimination
against him.
Frederick C. Sconfienza
PUBLIC SERVICE COORDINATED TRANSPORT,
Employer.
Dated-------------------- By ---------------------------------------
(Representative ) ( Title)
PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY,
Employer
Dated------------ By -------------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.