South Jersey Coach Lines

National Labor Relations Board - Board Decisions

May 11, 1950

89 N.L.R.B. 1260 (N.L.R.B. 1950)

In the Matter of SOII'rH JERSEY COACH LINES and AMALGAMATED
ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTORCOACH EM-
PLOYEES OF AMERICA, AFL
Case No. 4-CA-168.-Decided May 11, 1950
DECISION
AND
ORDER
. On January 23, 1950, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 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 brief filed by the Respondent,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.2
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 Respondent, South Jersey
Coach ,Lines, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America,
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member
panel [Chairman Herzog and Members Houston and Styles].
2 The Employer ' s contention that in no event should the Board order reinstatement of
Timberman and Harris because such reinstatement will seriously disrupt the Respondent's
close family type method of operating is without merit and is therefore rejected.
89 NLRB No. 156.
1260
SOUTH JERSEY COACH LINES 1261
AFL, or in any other labor organization of its employees, by dis-
charging, refusing to reinstate, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment;
(b) Interrogating employees concerning their union affiliation,
making threats of economic reprisals if the employees engaged in
union activity, soliciting members of a labor organization to withdraw
their affiliations therefrom, or in any other manner interfering with,
restraining, or coercing its employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, AFL, 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 as guaranteed in Section
7 of the Act, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
. 2. Take the following affirmative action, which the Board finds
is required to effectuate the policies of the Act :
(a) Offer to Warren F. Harris and Norman H. Timberman im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have
suffered by reason of the Respondent's discrimination against them,
by payment to each of them of a sum of money equal to that which
he normally would have earned as wages from the date of his dis-
-charge to the date of the Respondent's offer of reinstatement, less his
net earnings during said period;
(b) Post at its office and garage in Bridgeton, New Jersey, copies
of the notice attached hereto and marked Appendix A.3 Copies of
said notice, to be furnished by the Regional Director for the Fourth
Region, after being signed by representatives of the Respondent, shall
be posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
:spicuous'places, including all places at its Bridgeton, New Jersey, office
and garage where notices to employees are customarily posted. Rea-
I In the event this Order is enforced by decree of a United States Court of Appeals, there
:shall be inserted before the words, "A DECISION AND ORDER," the words , "A DECREID
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonable steps shall be taken by the Respondent to insure that such.
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fourth Region, in writing,
within ten (10) days from the date of this Order, of the steps the Re-
spondent has taken to comply herewith.
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, we hereby notify our employees that :
WE WILL NOT in any 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 AMALGAMATED ASSOCIA-
TION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEE'S
OF AMERICA, AFL, 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 bar-
gaining or other mutual aid or protection, and to refrain from
any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
Warren F. Harris Norman H. Timberman
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
SOUTH JERSEY COACH LINES,
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.
SOUTH JERSEY COACH LINES 1263
INTERMEDIATE REPORT
Mr. Julius Topol, for the General Counsel.
Mr. Harry Adler, of Bridgeton, N. J., for the Respondent.
Mr. Frederick O. Fitzgerald, of Belmont, Mass., and Mr. Joseph Reed, of
Crescent Park, N. J., for the Union.
STATEMENT bF THE CASE
Upon an amended charge duly filed by Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, AFL, herein called
the Union, the General Counsel of the National Labor Relations Board, respec-
tively called herein the General Counsel and the Board, by the Regional Director
for the Fourth Region (Philadelphia, Pennsylvania), issued a complaint dated
October 10, 1949, against South Jersey Coach Lines, herein called the Respondent,
alleging that the Respondent has engaged in, and is engaging in, unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that the
Respondent, (1) discharged Warren F. Harris on or about January 14, 1949,
and Norman H. Timberman on or about January 15, 1949, and since has failed and
refused -to reinstate them; (2) discharged and failed and refused to reinstate
said employees for the reason that they joined or assisted the Union or engaged
in other concerted activities; and (3) from about January 1949, through its
officers, agents, representatives, and employees, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
The Respondent filed an answer in which it denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held at Bridgeton, New Jersey, from No-
vember 8 to. 10, 1949, inclusive, before the undersigned Trial Examiner. The
General Counsel and the Respondent were represented by counsel, and the
Union by its representatives. Full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence bearing on the issues was
afforded all parties. At the start of the hearing, the Respondent moved to
dismiss the complaint upon the grounds that a petition filed by the Union in a
representation case had been withdrawn without prejudice. The motion was
denied. During the General Counsel's case, the General Counsel requested the
Trial Examiner to take judicial knowledge of certain facts contained in the
files of the Fourth Region. The General Counsel claimed that these facts were
material on the issue of jurisdiction. The Respondent entered a general ob-
jection. Ruling on the objection was reserved. The objection is hereby sus-
tained. At the close of the whole case, the General Counsel moved to con-
form the pleadings to the proof, as to names, dates, and other minor variances..
The motion was granted without objection.
The General Counsel and the Respondent presented oral argument before
the Trial Examiner at the close of the hearing. Though all parties were af-
forded an opportunity to file briefs or proposed findings of fact and conclu-
sions of law, or both, with the undersigned, counsel did not avail themselves
of this opportunity.
1264 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the wit-
nesses, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New Jersey corporation, with its principal offices and
place of business at Bridgeton, New Jersey, and it is engaged in the transpor-
tation of passengers and baggage by motor bus between points in and outside
of New Jersey.
During the calendar year 1948, the total revenue of the Respondent was
$182,044. Of this amount, $116,320 was obtained from interstate bus opera-
tions between Wilmington, Delaware, and Atlantic City, New Jersey, $7,553,
from charter bus operations from the State of New Jersey to and through other
States of the United States, and $57,721 from purely intrastate operations..
During the same year the Respondent expended $10,461 for a new bus which
was manufactured in the. State of Ohio ; paid bridge and ferry tolls amount-
ing to $9,480 for the purpose of crossing from one State into another ; and
expended the sum of $15,798 for fuel , principally gasoline, which originated out-
side the State of New Jersey.
The undersigned finds that the Respondent is engaged in commerce and that
its operations affect commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America, AFL, is a labor organization which admits to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events: interference, restraint, and coercion
About- October or November, 1948, the Union commenced organization of the
Respondent's employees. Union designation cards were given to employees
Elmer Bump and Norman H. Timberman, and they solicited other employees.
to sign the cards. On the night of January 13, 1949, a meeting of the Union was.
held at the home of employee John Eller. Almost all of the Respondent's em-
ployees attended the meeting. A representative of the Union and Charles Kiger,.
a bus driver for another transportation company and a member of the Union,,
also were present. Timberman was elected shop steward at the meeting.
Edwin K. Johnson and his wife, Mildred Johnson, president and secretary
treasurer of the Respondent, respectively, returned to Bridgeton on January 13.
after an absence of several weeks. During this time their son, Edwin S.' John-
son, was in charge of the Respondent's operations. At about 8: 30 p. in. that.
night Eller told Edwin K. Johnson that a union meeting was being held at his.
house and that he had not known the nature of the meeting when asked to hold
it there Later that same night Johnson called Eller at his home. He asked-
1 The above conversation took place in the yard of Johnson's home where the buses were-
stored. Johnson's home also served as the Respondent's office.
SOUTH JERSEY COACH LINES 1265
Eller what was "going on" and who was present. Johnson also questioned em-
ployees Shauer, Strang, and DeJohn concerning the meeting. When Shatter re-
turned a bus to the yard, Johnson asked him if he was going to the meeting. He
called Strang and DeJohn at their homes and asked th'em' similar questions.
On January 14 Johnson had a conversation with employee Healy. Concerning
this conversation, Healy testified credibly as follows : 2
Well, he asked what we was trying to do to him; asked me if I joined the
union. I said, "No." He said, "Well, did you sign the card?" I said, "No,
I didn't see no cards around there."
He says he will get to the bottom and find out who the instigator is if he
has to fire each one individually.
During the same day Johnson also talked to employees DeJohn, Eller, and Rich-
ards. He told DeJohn that he would like to learn the names of the instigators ;
and that if he found out,,"they would be sorry." Johnson asked Richards if
he had signed "one of the damn union cards." When Richards replied that he
had, Johnson said, "Well, at least you are honest about it." He also asked
Eller if he had signed a card. Also on January 14, Mildred Johnson questioned
employee Edward Hitchner as to whether or not he had attended the meeting.
Hitchner told her that he did not go to the meeting. On about January 15, she
again spoke to Hitchner. She stated, in substance, that he had not told her the
truth as she had received contrary information from the Union.'
Edwin K. Johnson discharged both Warren Harris and Norman Timberman
on January 15, 1949. On about that same day Johnson asked employee Robert
Vence if he had gone to the union meeting. Vence told him that he had attended.
the meeting and, after further questioning by Johnson, that almost all of the
employees and Charles Kiger were present. At about this same time, Johnson
asked employee Goldstein if he had signed a union card. When Goldstein de-
nied signing a card, Johnson said he was a "damn liar" as he had signed one.
During about the latter part of January, Mildred Johnson stated to Vence
that somebody had told her that he was the instigator of the Union's organiza-.
tional efforts. Vence, in effect, denied the charge by telling her that he hated
the Union. At sometime during the summer of 1949, Edwin K. Johnson told
employee Healy that "rather than give into the union" he "would close up shop."
It is found that the interrogation concerning union membership and activities
and threats of reprisal in the above-related conversations between Edwin K_
Johnson and Mildred Johnson and employees Eller, Shauer, Strang, DeJohn,
Hitchner, Vence, Goldstein, and Healy constitute interference, restraint, and
coercion.
B. The discharge of Norman H. Timberman
Timberman. was employed as a. bus driver by the Respondent from July 1947,.
until his discharge on January 15, 1949. For about the first 6 months of his.
employment he was hired as an extra driver for the Respondent's various bus
routes. He then became a regular driver on the Wilmington-Atlantic City route..
2 Johnson, denied the. statements attributed to him by Healy.. His.denials of the above.
and of other statements related and found herein are not credited.
The Union, by letter dated January 14, 1949, advised the Respondent that the employees.
had become. members of the Union, and requestedf a conference for the, purpose-of nego-
tiating a contract.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As related above, Timberman was elected shop steward of the Union at the
meeting on January 13. On Saturday, January 15, when he went to the Re-
spondent 's office for his pay, he was discharged by Edwin K. Johnson. Concern-.
ing his discharge , Tihiberman testified as follows :
Pe (Johnson ) says, "You - - -. I hope you are satisfied . You got' a
union in now . You are shop steward and I am firing you." He says, "I'
don't want anybody working on my premises that has any connection with
the Union .'.' He says, "You are finished . I fired Harris because he was
one." And he asked me if I had my turn-in box with me. I said, "No."
And he says, "Go home and get it." And so I went home, picked up my
turn-in box , and I turned in my money , punch, and what-have -you, what
we had that belonged to the company. And he had my pay all made up.
He gave me my pay and he also said that he was going to find out who was
at the bottom of the union if he had to fire every driver he had, one by one,
till he got to the bottom of it. And I told him that I wasn't the instigator
of the union and he then asked me who was, and'I told him that I wasn't a
rat, I wouldn't tell him, find out for hisself. So he told me he would hire
me back if I would tell him who started the union, and I didn't tell him.
Johnson testified to the following conversation with Timberman at the time of
discharge :
I asked him if he had his box there. And he said no. I said, "Well,:
business is getting pretty bad and I won't have any more use for you. So go
home and get your box." He goes home and gets his box and turns his stuff
in. We had his pay for him and then he started to say, "You can't-blame,
the union onto me because I did not have anything to do with the union."
I said, "I am not saying a word to you about the union. I merely say that.
I haven't any more work for you."
Johnson denied all other remarks attributed to him by Timberman.
Employee Clarence Strang testified that he was present during the first con
versation between Johnson and Timberman ; that Johnson told Timberman,
"You can go home and get your things and turn them in. I haven 't any more
use for you."; that Timberman said, "Is it on account of the union ?"; and that
Johnson replied , "I am not saying anything about the union." Strang also denied
the remarks attributed to Johnson by Timberman.
- Concerning the discharge , Mildred Johnson was questioned and testified as
follows :
Q. Were you present when Mr. Timberman was discharged?
A. I was.
Q. Now tell us where it was, the circumstances , and what you heard said
by Mr. Timberman and Mr. Edwin K. Johnson , your husband?
A. We were in my office, Mr . Strang, Mr . Clarence Strang, Edwin, and
myself, talking about our trip ; and Norman came in for his pay.
Q. By Norman you mean who?
A. Norman Timberman I mean. He came in for his pay and I had to come
out in the other office, the next room, to get that for him. And Edwin came,
to, the other door and told him that he wasn 't going to need him any longer
and did he have his things with him.
Q. What did Mr. Timberman say?
,SOUTH JERSEY COACH LINES 1267
A. "Is this because of the union?" Edwin said, "I have nothing to say
about the union. I am not saying anything about the union. I just don't
have any more need for you."
Q. Now, I specifically ask you, did you hear your husband use profanity
or vulgarity, as was described by Mr. did you hear Mr. Timberman
testify in this court?
A. I did.
Q. Did your husband, Mr. Edwin K. Johnson, make those statements that
were related here in court to Mr. Timberman?
A. He did not.
Q. If he would have made them, would you have heard them?
A. I would have heard it, if he had made it.
Q. Now you know the statements that I am discussing, the profane
language that was used or stated by Air. Timberman?
A. I recall what he testified, yes.
Q. Now was that all of the discussion that was had between Mr. Tim-
berman and Mr. Johnson?
A. That is all that I know that they had between them.
Q. Did Mr. Timberman leave?
A. He went home and got his things, yes.
Q. And were you there? Were you present when he returned with these
things?
A. Yes, because I had to check out his tickets and take care of his work.'
Q. What did he say when he checked out his tickets?
A. What did who say?
Q. What did Mr. Johnson say to Mr. Timberman or Mr. Timberman to Mr.
Johnson.
A. I don't recall that there was any conversation between them.
Conclusions
Strang did not impress me as a reliable witness. His testimony is contradic-
tory and although it is substantially the same as Edwin K. Johnson's, it does
conflict in that Johnson testified that the Union was mentioned in the second
conversation. Strang testified that he was not present during the second conver-
sation. I also do not believe that Johnson and his wife were reliable and credible
witnesses. Johnson particularly was evasive and contradictory in his testimony.
For example, concerning his interrogation of employees on January 14 Johnson
was questioned and gave answers during cross-examination as follows:
Q. Did you see John Eller the next day?
A. No.
Q. Didn't you ask John Eller the next day whether he had signed the union
card?
A. I can't remember to the best of my knowledge seeing him at all the next
day.
Q. Did you see John Healy the next day?
A. I can't remember. I mean, it is every day rotation, and to remember
whether you saw any one of them or saw them all-
Q. Did you ask John Eller at any time after that day whether he had
signed the union card?
A. No.
889227-51-vol. 89-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you ask John Healy at any time after that day whether he signed
the union card?
A. No, sir.
Q. Did you see Jack Goldstein the next day?
A. Yes.
Q. Did you ask Jack Goldstein whether he had signed the card?
A. No, sir.
Q. Did you ever ask Jack Goldstein whether he had signed the card?
A. I can't remember ever asking him.
Q. Did you see Driver Richards the next day;
A. Possibly I did.
Q. Did you ask Driver Richards the next day whether he had signed the
union card?
A. Yes, I asked him.
Q. What did he say?
A. He said yes, and I said, "At least you told the truth about it."
Q. Did some of the other drivers lie to you?
A. I can't remember mentioning it to any of the other drivers.
Q. Did some of the other drivers tell you that they had not signed cards?
A. Yes, they said they had not signed them.
Q. Who were the ones that said they had not signed the cards?
A. I can't remember who they were.
Q. Under what circumstances did they make that statement to you?
A. Most-
Q. Had you asked them if they had signed a card and they said they hadn't?
A. No.
Q. Did they just come up to you and say, "I didn't sign a union card,
Mr. Johnson?"
A. They didn't say anything.
Q. You stated some of the drivers had denied signing the card. Did you
not so testify?
A. No.
Mr. TOPOL. Will you read back that part of the testimony that I am
referring to?
(The following was read by the Reporter:
"Q. (By Mr. TOPOL.) Did some of the other drivers tell you that they had
not signed cards?
"A. Yes, they said they had not signed them.")
Q. (By Mr. ToroL.) You have testified they said they had not signed
them. Now which drivers had.said that?
A. I can't recall any certain one.
Q. But you know that some of the drivers had said it, but you can't
recall which one, is that right?
A. That is right.
Q. Do you recall the circumstances in which they said it? Did they come
up to you and say, "Mr. Johnson, I want to tell you I did not sign a union
card"?
A. Nobody said anything like that.
Q. What did they say?
A. Tlic'y paver said anything.
SOUTH JERSEY COACH" LINES 1269
Q. What did they say?
A. Nothing.
Q. You just testified that some of the drivers had said that they had
never signed cards, is that right? Is your testimony correct? Were you
telling the truth?
A. Yes.
Q. All right. You were telling the truth then that some of the drivers
told you that they had never signed the card. Now tell us the circumstances.
in which they said that to you. Tell us the conversation in which they said
that to you.
A. I can't recall the words they said.
Q. How many drivers told you this? _
A. I can't remember any amount.
Q. Now you testified that some of the other drivers had told you that they
had not signed the card. That is right, you did testify, is that correct?
A. Yes.
Q. Now aside from Mr. Richards, what other drivers told you that? What
drivers told you that they had not signed cards?
A. I don't remember any of the certain ones.
Q. All right now, let's go back to the question. Who was who (sic) told
you that they had not signed a card?
A. Nobody told we they hadn't signed a card.
Q. Nobody told you that they had not signed a card. You are sure of that
now?
A. To the best of my recollection that I can remember.
Both Johnson and his wife.testified to the effect that Timberman's membership
in and activities on behalf of the Union did not in any way influence them in
his discharge. George Black, an employee in a meat market patronized by both
the' Johnsons and Timberman, testified concerning a conversation in his store
with Edwin K. Johnson at some undisclosed time after Timberman's discharge.
Black ' s testimony in this connection is as follows :
To the best of my recollection of what he (Johnson) said, he said he had
nothing personally against Norman Timberman. He said that Norman was
a good worker, but something about the union had come in and they put
Norman in as a shop steward, as I understand it, and he wasn't going to have
any union in his place of business.
It is obvious from the record that Black was an impartial witness and was
reluctant to give the above testimony. Further, he impressed me as an honest
and sincere witness and, therefore, his testimony is credited. In my opinion, this
admission of Johnson, standing alone, shows that he is, not worthy of credence.
In addition, the evidence concerning Johnson's statements and actions before
Timberman's discharge, related and found above, conclusively show his anti-
Union attitude and discriminatory intent. Accordingly, for all of these reasons
I credit Timberman's version of the conversation at the time of his discharge,
and conclude and find that the Respondent discharged him on January 15, 1949,
because of his membership in and activities on behalf of the Union.
The Respondent's contentions to the effect that Timberman was discharged
(1) because of a decline in business (2) because of his speeding and (3) be-
cause he was hard on equipment, are rejected. From the record as a whole It
is clear that these alleged reasons for the discharge were afterthoughts. The
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited testimony of Timberman and David Harper, his attorney, completely
disprove the testimony of Johnson and his wife concerning Timberman's alleged
speeding. The Respondent contends that a schedule on the Wilmington-Atlantic
City run was discontinued due to a lack of business ; and that Timberman was
laid off or discharged since he was the last driver hired for that run. However,
the Respondent failed to prove that any such seniority policy had been in effect
before Timberman's discharge. In fact, the evidence discloses that the Re-
spondent had no seniority policy: Ellwyn McGirr, a representative of the Union,
testified credibly that on about January 25 he had a conversation with Johnson
concerning the discharges of Timberman and Harris, and that Johnson told
him that he "laid them off for lack of work" and that the Respondent did not
have any seniority policy. Further, the evidence discloses that the schedule
on the Wilmington-Atlantic City run was not discontinued until January 19, and
that later employee Robert Vence was transferred as a regular driver on the
run.' Although it is undisputed that the schedule, as such, was not reinstated,
as of the date of the hearing the same number of drivers were employed on
it as before the discharge, indicative of the permanent addition of an extra
section or bus to one of the remaining schedules.`
0. The discharge of Warren F. Harris
Harris was employed by the Respondent from March 1946, until his discharge
on January 15, 1949. He was a bus driver on the Bridgeton-Miliville run.
Harris worked until 12: 45 a. in. on January 14. When he parked his bus in
the yard, Charles Kiger was waiting for him in an automobile in front of the
Johnson home. Kiger then drove Harris to the union meeting at employee Eller's
home.
At about 10 a. in. on January 15 Harris was discharged by Edwin K. Johnson.
Concerning his discharge and his conversation with Johnson and his wife,
Harris testified credibly as follows o
I walked in the office. He said, "Sit down." I sat down. And he says,
"I heard you and Norm Timberman was elected shop stewards." Then he
asked me, he says, "Did you sign a union card?" And I said, "No."
Mrs. Johnson says, "It is funny none of you know anything about them."
Then he spoke up, he says, "Was Charlie Kiger there?" And I says I didn't
know, and he says, "Well, if Charlie Kiger wants you fellows in the union,
he can take you out to the farm and feed you." Then he told me, he says,
he asked me, or he said that he was going to get to the bottom of it if he
had to get one by one. He told me to go get my box. I asked him, I said,
"Mr. Johnson, was there anything wrong with my work on the line?" He
said, "No, sir ; there was not." I says, "Is there anything wrong at all with
my work?" He says, "No, it was perfectly satisfactory outside of small
complaints that we generally get."
* * * * * * *
4 The record shows that extra sections were added temporarily to the schedules during
the summer rush.
"Although Johnson did not deny specifically all of the statements attributed to him by
Harris, his testimony as a whole may be considered a denial. As related above, the under-
signed does not believe Johnson to be a credible witness.
SOUTH JERSEY COACH LINES 1271
He said he was going to let Norm Timberman go, too. So this is continued
from where he told me to go get my box. I went and got my box. I checked
all my stuff out, the tickets, and I had turned in the money earlier, and he
says, "I got your pay made up." He paid me for a week in advance and he
says, "I will let you know after January 21st whether you will continue
working for this company any longer.or not."
He says, "Call me up and I will let you know whether you continue work-
ing with this company any longer or not."
On about January 17 or 18, Edwin K. Johnson told employee DeJohn that he
thought "it was funny that Harris was kind of thick with Charlie Kiger" and
that he believed "that Kiger was the one who was trying to get the boys in the
'Union."
At some undisclosed time after his discharge, Harris called Johnson to in-
quire about his employment status. Johnson told him that he did not need him.
Conclusions
Concerning the reasons for Harris' discharge, Edwin K. Johnson testified as
follows :
Well, we were continuously getting phone calls. He was arguing with
the people. Lots of times he wouldn't give them the cash fare receipts. And
he was hard on equipment. He would run it and get the motor red hot and
then put water in it and would either bust the head or block. And contin-
uously doing that kind of work. And then he was fighting with people.
And another time he had an occasion to get in trouble with a young girl
about 14 years old. Just continuously things like that, it was complaints all
the time.
We had people call up and tell us that if we kept him on any longer, they
weren't going to ride the bus because they were afraid to let themselves
and they were afraid to let their children ride on the bus with him driving.
We sized the situation all up and we decided that we'd better not keep him
any longer.
It was stipulated at the hearing that a complaint dated May 12, 1947,, was
issued by the Police Justice of the City of Milville against Harris, alleging that
he had contributed 'to the delinquency of a minor during the period between
March 15 and April 16, 1947, "by taking said child to the movies and riding about
and parking about with said child." In this connection, Harris testified credibly
and without contradiction that he gave bail and was held for action of the Cum-
berland County Grand Jury ; that the matter never was presented to the Grand
Jury ; that the girl in question was a passenger on his bus on Saturdays ; that
the day after "the trial" (apparently the preliminary hearing before the Police
Justice) he spoke to Edwin K. Johnson and asked him if he wanted him to re-
turn to work ; and that Johnson told him, in substance, to return to work, as he
needed him, but that he should refrain from such activity in the future.
Harris also testified credibly that during the summer of 1948 he had a fight
with a passenger ; that the day after the fight he told Johnson about it; that John-
son did not reprimand him ; and that he did not have any other fights with
passengers.
Considering the nature of the Respondent's business, it is clear from the un-
disputed facts in connection with the morals charge that Harris was an unde-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sirable employee. However, the Respondent did not see fit to discharge him at the
time in question, but continued to employ him for about a year and eight months.
Since both this incident and the fight are remote from the date of discharge, I be-
lieve and find that the Respondent seized upon them as pretexts for the illegal
action it finally took. In my opinion, Johnson's conversations with Timberman
and Harris at the time of their discharge and his later statement to employee
DeJohn concerning Kiger and Harris, related above, conclusively show that John-
son believed that Harris was one of the instigators of the Union's organizational
efforts, and that Johnson discharged him for that reason. Accordingly, I find
that the Respondent discharged Warren F. Harris on January 15, 1949, because
.of his membership in and activities on behalf of the Union.
D. Solicitations to withdraw from the Union
On or about January 18, 1949, Harry Adler, Respondent's attorney, prepared
the following document at the request of employee Robert Vence,:
We, the undersigned, are desirous of immediately expressing our opinion
that if it is to be considered that we became part of a union by fixing our
signature to a card, that we hereby disavow and disaffirm such entrance
to the said Union and express a desire to forthwith and immediately with-
draw from same, before it becomes operative and that we further ratify
and affirm our position with the South Jersey Coach Line wherein we will
negotiate individually or by ourselves with the owner and we do not desire
to become part of any organized Union.
At about the same time or shortly after the document was prepared by Adler,
Edwin K. Johnson told employee DeJohn that Vence would be "around with a
paper" and that he (Johnson) wanted him to sign it.' Thereafter, Johnson's
son, Edwin S. Johnson, drove Vence in his automobile to the homes of various
employees and to the. bus terminal while Vence solicited employees to sign the
above document. After Vence, DeJohn and nine other employees signed the
document, Vence returned it to Adler. Adler kept it in his possession and
Vence did not pay him any fee.
Edwin K. Johnson testified to the effect that he did not know anything about
the document until about a week after it was circulated when his son mentioned
it to him. Vence testified that Johnson did not have knowledge of the docu-
ment and that he did not discuss it with him. Their testimony is not credited.
Johnson's statement to DeJohn, found above, shows that Johnson not only knew
of the document but also personally solicited at least one employee to sign it.
Accordingly, from all of the facts in this connection I find that the Respondent
initiated, sponsored, and assisted in the solicitations of its employees to disavow
their affiliation in and selection of the Union as their collective bargaining
representative, and thereby interferred with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I, above,
6 DeJohn testified to the above conversation, and I credit his testimony in this connection.
SOUTH JERSEY 'COACH LINES .1273
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
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The Respondent's fixed intention to defeat its employees' efforts toward self-
organization, as manifested by the discharges, interrogation, and threats of
reprisals if they joined the Union, indicates such a disregard of its employees'
rights under the Act as to convince the Trial Examiner that there exists a dan-
ger of the repetition of such violations, and of the commission of other unfair
labor practices proscribed by. the Act. Unless the recommended order is co-
extensive with the threat, the preventive purposes of the Act will be thwarted.
Accordingly, in order to effectuate the policies of the Act, to make more effec-
tive the interdependent guarantees of Section 7, and to deter the Respondent
from future violations of the Act, it will be recommended that the Respondent
cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
As to the two discriminatorily discharged employees, it will be recommended
that the Respondent offer them immediate and full reinstatement to their for-.
mer or substantially equivalent positions,' without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the Respondent's discrimination against them
by payment to each of them of a sum of money equal to that; which he nor-
mally would have earned as wages from the date of his discharge to the date
of the Respondent's offer of reinstatement, less his net earnings during said
period.
Upon the basis of the above findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of War-
ren F. Harris and Norman H. Timberman, thereby discouraging membership
in Amalgamated Association of Street, Electric Railway and Motor Coach
Employees of America, AFL, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
I In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equiva-
lent position." See The Chase National Bank of the City of New York, San Juan, Puerto
Rico Branch, 65 NLRB 827.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner recommends that South Jersey Coach Lines, its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America, AFL, or in any other labor
organization of its employees, by discharging, refusing to reinstafe, or by dis-
criminating in regard to their hire or tenure of employment, or any term or
condition of employment ;
(b) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations,
to join or assist Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, AFL, 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 as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to Warren F. Harris and Norman H. Timberman immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make them whole
in the manner set forth in Section V above, entitled "The remedy" ;
.
(b) Post at its office in Bridgeton, New Jersey, copies of the notice attached
hereto and marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the Fourth Region, after being signed by representatives
of the Respondent, shall be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Fourth Region in writing, within
twenty (20) days from the date of the receipt of this intermediate Report, what
steps the Respondent has taken to comply herewith.
It is also recommended that unless, on or before twenty (20) days from the
date of the receipt of this Intermediate Report, the Respondent notifies the
said Regional Director in writing that he will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring Re-
spondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing, setting forth such excep-
tions to the. Intermediate Report and Recommended Order 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 six copies of a brief in support
thereof ; and any party may, within the same period,' file an original and sit
SOUTH JERSEY COACH LINES 1275
copies of a brief in support of the Intermediate Report and Recommended
Order. Immediately upon the filing of such statement of exceptions and/or
briefs, • the party filing the same shall serve a copy thereof upon each of the
other parties . Statements of exceptions and briefs shall designate by precise
citation the portions of the record relied upon and shall be legibly printed or
mimeographed , and if mimeographed shall be double spaced. Proof of service
on the other parties of all papers filed with the Board shall be promptly made
as required by Section 203.85. As further provided in said Section 203.46 should
any party desire permission to argue orally before the Board, request there-
for 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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 23rd day of January 1950.
JOHN H. EADIE,
Trial Examiner.
APPENDIX
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-
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
organizations , to join or assist AMALGAMATED ASSOCIATION OF STREET, ELEC-
TRIC RAILWAY AND MOTOR CoACH EMPLOYEES OF AMERICA, AFL, 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 employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
Warren F. Harris Norman H. Timberman
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization..
SOUTH JERSEY COACIi LINES,
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.