Tennessee Coach Co.

National Labor Relations Board - Board Decisions

Mar 22, 1955

111 N.L.R.B. 1045 (N.L.R.B. 1955)

TENNESSEE COACH COMPANY 1045
A question affecting commerce exists concerning the representation
of the employees of the Employer in Case No. 13-RC-4201 within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. The appropriate unit :'
We find that all office and clerical employees including accountants
employed at the Employer's plant at Kankakee, Illinois, excluding all
other employees, professional employees, guards, and all supervisors
as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
[The Board dismissed the petition in Case No. 13-RC-4153.]
e The Petitioner also contends that the contract in issue is not a bar because the unit
covered is not appropriate in that a nuinbei of clerical employees in certain departments
are excluded We find no necessity for considering this question because, as noted below,
the parties appear to agree that the unit in the instant petition is appropriate and for
the further season that we have found the contract not a bar on other grounds.
4 The record shows that there is no disagreement between the parties as to the appro-
priate unit
TENNESSEE COACH COMPANY and DIVISION 1490, AMALGAMATED ASSO-
CIATION Or STREET, ELECTRIC RAILWAY AND MOTOR COACH EM-
PLOYEES OF AMERICA, AFL.' Case No. 10-CA-1918. March
22,1955
Decision and Order
On September 2, 1954, Trial Examiner Sidney L. Feiler 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
Union filed exceptions to the Intermediate Report and supporting
briefs.2
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exception and briefs, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
r Herein called the Union
2 The request of the Respondent for oral argument is denied as the record and the briefs
adequately set forth the position of the parties.
3 The Trial Examiner based his finding of violation of Section 8 (a) (5) of the Act on
the rule set forth in The Baker and Taylor Co, 109 NLRB 245 While that case properly
states the rule, we base our finding on the more recent United States Supreme Court deci-
sion in N . L. R B. v Ray Brooks , 348 U S 96 , finding it unnecessary to distinguish incoin
sistent circuit court cases as the Trial Examiner did.
111 NLRB No. 179
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in this 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, Tennessee Coach
Company and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing upon request to bargain collectively with the Union
as the exclusive representative of all its systemwide bus operators and
maintenance employees excluding all office and clerical employees, ter-
minal employees, watchmen, guards, professional employees, and
supervisors.
(b) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form or join labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection as guaranteed in Section 7 of the Act , or to re-
frain 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 will
effectuate the policies of the Act :
(a) Upon request to bargain collectively with the Union as repre-
sentative of its employees in the appropriate unit described above with
respect to grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post at its offices and terminals in Knoxville, Tennessee, and in
all other terminals and offices used by employees in the appropriate
unit, copies of the notice attached hereto marked "Appendix." 4 Cop-
ies of said notice, to be furnished to the Regional Director for the
Tenth Region, shall, after being duly signed by the Respondent's rep-
resentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable 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 Tenth Region, in writing,
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
6 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
TENNESSEE COACH COMPANY
Appendix
NOTICE TO ALL EMPLOYEES
1047
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:
VVE WILL NOT refuse a request to bargain collectively with Divi-
sion 1490, Amalgamated Association of Street, Electric Railway
and Motor Coach Employees of America, AFL, as the exclusive
representative of all employees in the bargaining unit described
below with respect to grievances, labor disputes, rates of pay,
wages, hours of employment, and other conditions of employment.
The bargaining unit is:
All our. systemwide bus operators and maintenance employ-
ees excluding all office and clerical employees, terminal em-
ployees, watchmen and all guards, professional employees,
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form or join labor organizations, 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 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.
WE WILL upon request bargain collectively with the above-
named Union as the exclusive representative of all employees in
the bargaining unit above described and if an understanding is
reached embody it in a signed agreement.
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 membership
in or activity on behalf of any such labor organization.
TENNESSEE COACH 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.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge, filed by Division 1490, Amalgamated
Association of Street, Electric Railway and Motor Coach Employees of America,
AFL, the General Counsel of the National Labor Relations Board I by the Regional
Director for the Tenth Region (Atlanta, Georgia), on March 30, 1954, issued a com-
plaint against Tennessee Coach Company, herein referred to as the Respondent or
the Company, alleging that the Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 65
Stat. 601, herein called the Act. Copies of the charges, complaint, and notice of
hearing was served upon the other parties to the proceeding.
With respect to unfair labor practices the complaint alleges in substance that from
on or about January 8, 1954, the Respondent refused and at all times thereafter has
continued to refuse to bargain collectively with the Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America, AFL, herein re-
ferred to as the Union, as the duly designated collective-bargaining representative of
employees of the Respondent in an appropriate unit. The Respondent in its answer
dated April 2, 1954, admits certain jurisdictional allegations, but denies the com-
mission of any unfair labor practices and specifically denies that on January 8, 1954,
or thereafter, the Union has been the exclusive collective-bargaining representative
of the employees in the unit described in the complaint
Pursuant to notice, a hearing was held at Knoxville, Tennessee, before the duly
designated Trial Examiner. All parties were represented at the hearing and were
afforded full opportunity to be heard and to examine and cross-examine witnesses.
At the conclusion of the presentation of evidence the General Counsel moved to
conform the pleadings to the proof as to formal matters. This motion was granted
as to all pleadings without objection. Opportunity was then afforded for oral argu-
ment, but oral argument was waived by all the parties. Opportunity was then af-
forded for the filing of briefs and/or proposed findings of fact or conclusions of
law or both. Briefs were received both from the Company and the Union.
Upon the entire record, and from his observation of the witnesses, the Trial Ex-
aminer makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now and has been at all times material herein, a Tennessee cor-
poration, maintaining its principal office and place of business at Knoxville, Tennes-
see, where it is engaged as a common carrier in the transportation of passengers by
surface vehicles in the States of Tennessee, Georgia, Virginia, and West Virginia.
It operates under certificates issued by the Interstate Commerce Commission.
The Respondent, in the course and conduct of its business operations during the
past year, which period is representative of all times material herein, purchased motor
vehicles and accessories, tools, and supplies valued in excess of $300,000, of which
approximately 40 percent in value was purchased from out-of-State sources. Annual
revenues of the Company are less than $3,000,000, but revenues derived from the
transportation of passengers in interstate commerce exceed $100,000.2
The Respondent concedes that at all times here relevant it has been engaged in
commerce within the meaning of the Act and the Trial Examiner so finds.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Association of Street , Electric Railway and Motor Coach Employees
of America , affiliated with the American Federation of Labor, is a labor organiza-
tion within the meaning of the Act.
III. THE REFUSAL TO BARGAIN
A. Sequence of events
On October 14, 1953, a petition was filed by the Union seeking certification as
collective-bargaining representative of certain employees of the Company. A con-
1 The term General Counsel as used herein includes the attorney representing the Gen-
eral Counsel at the hearing. The National Labor Relations Board is referred to as the
Board.
2 This finding is based upon a written stipulation signed by counsel and submitted after
the close of the hearing. This stipulation is hereby made part of the record as Trial
Examiner 's Exhibit No. 1.
TENNESSEE COACH COMPANY 1049
sent-election agreement was thereafter entered into by the Union and the Company.
Pursuant to this agreement an election was conducted on November 17 and 18, 1953,
among employees in the following unit which the parties agree is an appropriate unit
within the meaning of the Act: all systemwide bus operators and maintenance em-
ployees of the Company, excluding all office and clerical employees, terminal em-
ployees, watchmen and all guards, professional employees, and supervisors as de-
fined in the Act.
Of approximately 201 eligible voters 106 cast their votes for the Union and 89
voted against representation by it. There was one void ballot but no challenged
ballot.
On November 30, 1953, the Regional Director for the Tenth Region issued a cer-
tification of representatives certifying the Union as exclusive representative of em-
ployees in the aforementioned bargaining unit.
On December 28, 1953, Clyde V. Wilkins, an employee of the Company and
president of Division 1490 of the Union, a local organization of members of the
Union who also were employees of the Company, delivered a letter to J. E. Burke,
president of the Company and signed by William A. Wright, International vice
president of the Union. In this letter Wright stated:
Enclosed is a copy of a proposed agreement for the Operators and Main-
tenance Employees.
It is our desire to arrange conferences at the earliest possible time to nego-
tiate a final agreement for these groups. Please advise either Mr. C. V. Wilkins
or me when we can do so.
A meeting was arranged for January 8, 1954.
A union delegation headed by Wright met with company officials headed by
Burke and Charles D. Snepp, Esq., attorney for the Company, on January 8.
Wright attempted to begin negotiation of a contract but Snepp informed him that the
Company had been presented with a petition signed by a majority of its employees
stating that they no longer wished the Union to represent them and that the policy
of the Company was to abide by the wishes of the majority of the employees. There
was discussion over the effect and duration of the certification issued to the Union
and whether or not the Company had sponsored the petition. The meeting broke
up after union officials accused the Company of not bargaining in good faith. There
were no further bargaining sessions between the parties.
There was substantial agreement among the witnesses that Snepp took the posies
tion that in view of the fact that the Company was confronted with a petition from
a majority of the employees indicating that they did not want the Union to enter
into collective-bargaining negotiations with the Union, on the one hand, and the
Board certification, on the other, it wanted some outside tribunal to decide the ques-
tion as to what course the Company should pursue. The only substantial disagree-
ment was whether Wright made a request to see the petition which the Company
claimed it had received. Wright contended he made such a request but was ignored.
Company witnesses testified that no such request was made. There was agreement
that there was some discussion as to the bona fides of the petition and that company
representatives refused to enter into any discussion on that issue, taking the position
that that issue would be relevant only in later proceedings.
On February 19, 1954, Wright sent the following letter to Burke:
As you are aware, this Association has been certified by the National Labor
Relations Board as the collective bargaining representative of the operators
and maintenance employees of Tennessee Coach Company. As you also know,
we have, since our certification, been attempting to meet with you for the pur-
pose of negotiating an agreement covering the employees we represent. You
have refused to negotiate such an agreement with us.
Although we have been informed that a contract has been executed provid-
ing for the sale of this Company's operating rights to the Greyhound Cor-
poration, we are aware of the fact that that sale is subject to approval by the
Interstate Commerce Commission. So that there may be no misunderstanding
in this matter, please be advised that until the I. C. C. has approved the sale,
we regard the Tennessee Coach Company as legally obligated to respect our
certification and to negotiate with us.
We therefore request again-as we have in the past-that you arrange for
a bargaining conference with us for the purpose of negotiating an agreement.
I may be reached at the Farragut Hotel in Knoxville. If I have not heard from
you within 48 hours after you have received this letter, I shall assume that you
still refuse to meet with us, and I shall proceed at once to file charges with the
National Labor Relations Board.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burke sent the following reply on February 22.
Replying to your letter of the 19th instant which was received by me this
afternoon and which , notwithstanding your statement therein to the contrary, is
the first communication from you since our meeting of January 8th.
I am aware that the National Labor Relations Board certified your Associa-
tion as the collective bargaining representative for certain of our employees,
just as you are fully cognizant of the fact that subsequent thereto Tennessee
Coach was notified in writing by more than a majority of such employees that
they were not members of your Association and did not want it to represent
them as their collective bargaining agent.
You will recall that when we last met on January 8th, we, at that time, fully
informed you of the position in which the Company found itself, to-wit: a
Board certification , on the one hand, and said notice from the employees, on
the other , and that therefore the Company was not free to enter into contract
negotiations with the Union , but instead was affirmatively obligated not to do so.
This situation has not changed since our said meeting and the Company's
position is the same now as it was then. In fact, this is the only position which
the Company can legally and lawfully assume according to my understanding
of the law.
This was fully explained at our said meeting, but you entertained a contrary
view and expressly stated that an unfair labor charge would be filed with the
National Labor Relations Board not later than the following day, but I infer
from your letter that you have not as yet done so. We stated then, which we
now repeat , that we would be pleased to have said Board determine whether
the certification or subsequent notice controls.
Our only regret is that you did not follow through with your stated intentions
of filing the charge immediately after the January 8th meeting because had
you done so the case could by now have been well on its way to determination.
The instant proceedings was thereupon commenced.
The petition relied on by the Company was received in evidence . It consists
of eight sheets of plain, lined paper , all addressed to the Company at its office in
Knoxville, Tennessee , all dated November 21, 1953, except one sheet containing one
name , dated December 26, 1953. All begin with the following typed paragraph
(some of the petitions did vary from the majority in that a word may have been
omitted or added but the sense of all the headings is exactly the same).
We the undersigned employees wish to inform you that we are not members
,of the labor organization or the union known as Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America , A. F. L.,
and we do not want this union, or any other organization to represent us as our
collective bargaining agent.
Each of us have read this before signing our name.
Under each of the introductory paragraphs there is a list of names . Attached to
the petition is a letter addressed to Burke, dated January 4, 1954, as follows.
This is to advise that, we, the undersigned coach operators and maintenance
employees do not wish representation by the Amalgamated Association of Street
Electric Railway and Motor Coach Employees of America , A. F. of L., nor
any other bargaining agent, at this time.
For your information, we are attaching to this petition the signatures of 109
names as evidence of our desires.
This letter purportedly was signed by nine individuals.
J. E. Pryor, general traffic manager and superintendent of transportation for the
Company, testified that he and Burke checked the purported signatures on the peti-
tion on January 7. Signatures on withholding statements were used as reference
and also Pryor depended on his own knowledge of signatures of the drivers which
appeared on various company records including payroll checks. He concluded that
the signatures were genuine . Continuing his testimony Pryor stated that there were
109 signatures in all but since 1 driver had signed 3 separate petitions the actual
number was 107. On January 6 , the date the petition was given to Burke there were
189 employed in the appropriate unit. One hundred and eighty-six of that total
had also been eligible to vote in the election . There had been three additions to the
staff in the appropriate unit since the date of the election . As of the date of the
election there were 201 employees in the appropriate unit. One hundred and two of
the one hundred and eighty -six employees on the Company's rolls both at the time
of the election and on January 6, 1954, had signed the petition according to Pryor.
TENNESSEE COACH COMPANY 1051
Of the 107 who had signed the petition 104 were on the Company 's rolls as of
January 6.3
Burke testified that he had no knowledge of the petition until it was presented to
him on January 6 by three employees. He corroborated Pryor's testimony that
both of them had checked the signatures on the petition and concluded that they
were genuine . He was in general agreement with Wright 's testimony as to what
took place at the January 8 bargaining session except that he denied that Wright or
any union representative asked to see the petition . He testified that there had been
an agreement by company representatives in advance of the meeting that the petition
would be shown if request were made. He denied having any knowledge of the
circulation of the petition or having authorized its circulation or instructed anyone
to do so and maintained that his first knowledge of it was when it was presented
to him on January 6.
Burke testified that when employees Wilkins and North submitted Wright 's letter
to him on December 28 together with a proposed contract he told them that he
would have to study the documents first . Later he received a call from Wilkins in
which Wilkins suggested January 6 and Burke suggested either January 8 or 11.
Wilkins after checking with Wright agreed to a January 8 date.
Pryor denied that he had anything to do with the petition or had any knowledge
of it prior to January 6 . He testified that after the proposed contract was received
from the Union he and another company official had several meetings with Snepp
concerning the Company 's position with reference to the proposal , and that detailed
work was done on the Company 's counterproposals until the afternoon of January 6
when Burke telephoned Snepp that the petition had been received . He also corrobo-
rated the testimony of Burke and Snepp that the Union did not ask to see the peti-
tion at the January 8 conference and that Snepp took the position that the validity
of the petition and how signatures had been obtained was a matter that could prop-
erly be disposed of in a proceeding before a third party or the Board.
He testified that he had heard various rumors from time to time about the Union's
position on various issues and had heard rumors of the circulation of a petition but
had not paid much attention to the rumors.
J. H Donaldson , a busdriver employed by the Respondent , testified that a dis-
patcher 4 named Wooley got on his bus one day and told him "there 's a letter up
here that you'd better sign." When Donaldson asked him what kind of a letter it
was Wooley replied that it was "a letter to block the union." Donaldson stated
that he was not trying to block the Union and the conversation ended. Don-
aldson did not see the purported letter and there was no followup to this conver-
sation He could not fix the date of this conversation definitely but testified that it
was after the election in November and around Christmas time. The Respondent
objected to this evidence , but the Union contended this evidence was relevant since
the Company had raised the petition as a defense for its actions and therefore com-
pany participation or connection with it was relevant.
A. J. Russell , another driver, testified that a day or two after the election he was
having a friendly conversation with a dispatcher , Sidney Patton , in which they were
discussing the Union and in which Russell told Patton that he might have changed
his mind about the Union . At that point another driver, Charles Browning , stepped
up and stated that "if you have changed your mind, what about signing this," hand-
ing Russell one of the petition pages. Russell read it and handed it back. This took
place in the presence of Patton shortly before Russell and Browning were scheduled
to begin work.
B. Contentions of the parties , conclusions
1. As to the validity of the petition
The Union contends that the petition should not be given any weight because it
was not properly authenticated in that the same standard of verification applicable
to authorization cards when proffered by a Union in proof of its majority status
should be applicable to signatures on a petition , such as the one in question here,
3 This total includes an employee , MacDonald , who did some dispatching work. Dis-
patchers , as a class , were excluded from the unit , but MacDonald voted in the election
without challenge.
It is not necessary for purposes of the present proceeding to adjudicate MacDonald's
exact status , since his inclusion or exclusion from the total would not have any significant
effect
* Dispatchers of the Company have been held to be supervisory employees, Tennessee
Coach Company, 88 NLRB 253.
1052 DECISIONS-, OF. NATIONAL LABOR RELATIONS BOARD
and no such proof was offered by the Company. Counsel has not referred to any
authority for this contention. In cases, such as the present one, the recipient of a
petition is required to act in good faith. The Trial Examiner, from the testimony
of company officials, which is credited, is satisfied that reasonable efforts were made
to check the validity of the signatures on the petition before the Company took its
position and that it acted in good faith in asserting that a majority of its employees
had signed the petition. There is no authority for holding it to a higher standard
of verification.
The Union further contends , in its brief, that the evidence "strongly suggests in-
terference and coercion by the Company in the circulation of the petition" and asks
for the application of the rule that where a union's loss of majority follows, or is in-
cident to , an employer 's unfair labor practices , such a loss cannot be raised as a
defense to a refusal to bargain.
While the statement of the general legal proposition is correct, there are two bar-
riers to its application here. First, while there is evidence that company supervi-
sors, especially dispatchers, knew of the circulation of the petition, the only definite
evidence of company assistance to the antiunion movement is Donaldson 's uncontra-
dicted testimony that Dispatcher Wooley suggested that he sign a letter "to block the
union." This was the sole evidence of interference presented in the unit of 200 em-
ployees. Even if there were no other barrier to the request it is doubtful whether
the relief sought by the Union would be warranted under all the circumstances.
Moreover, Donaldson's evidence was first presented in rebuttal and the Company
contended that such evidence was not within the scope of the pleadings and improper
rebuttal. The charge herein in addition to charging the Company with refusal to
bargain also charged the Company with instigating and circulating a petition to re-
ject the Union as collective-bargaining representative. The complaint alleged that
the Company had refused to bargain with the Union, although obligated to do so,
but did not contain any allegations of company unfair labor practices in connection
with the circulation of the petition or any other activities. The General Counsel,
in his opening statement, stated that this case was a refusal-to-bargain case based
on an alleged repudiation of the certified collective-bargaining representative. No
amendment to the pleadings was offered during the hearing. Under these circum-
stances, the Trial Examiner concludes that evidence of alleged company assistance in
the circulation of the petition is outside the scope of the issues as framed by the
pleadings.
2. As to the effect of the petition
The remaining issue is whether the Company was justified in taking its position
'that there was a question as to the majority status of the Union, despite its recent
certification, which justified the Company in withholding recognition of the Union
as collective-bargaining representative and refusing to bargain with it until the issue
had been further resolved. The General Counsel and the Union contend the "one-
year" rule is applicable. This rule has been summarized by the Board in the recent
case of The Baker and Taylor Co., 109 NLRB 245, in the following language:
It is a well-established Board rule that, in the absence of unusual or special
circumstances, a Board certification of a bargaining representative must be hon-
ored for a reasonable period, usually at least a year following the certification,
despite evidence of repudiation or loss of majority by such bargaining repre-
sentative.7 The rule is intended to give effect to the policy of the Act to stabilize
7 Henry Heide, Inc., 107 NLRB 1160. N L R. B. v. Ray Brooks, 204 F. 2d 899
(C A 9), cert granted March 1954.
To the extent that this statement of the Board 's so-called "one-year rule" Is
intended to hold that despite a clear and uncoerced loss of majority a union con-
tinues throughout the certification year to be the statutory bargaining representa-
tive of the employees, Member Rodgers does not agree He is of the opinion that
once a reasonable period of time, as measured by the circumstances of the individual
case, has elapsed since the election and certification, it is "violative of the spirit and
the very letter" of the Act for the Board to require employees to continue to be repre-
sented by an agent (union) which they themselves for reasons of their own have
repudiated. N. L. R. B. v. Globe Automatic Sprinkler Co. of Pennsylvania, 199 F.
2d 64, 70 (C A. 3). Applying this rule to the instant case, Member Rodgers would
find that under the circumstances a lapse of 6 weeks between the Union's certifica-
tion and repudiation did not constitute a reasonable period of time and that therefore
the Employer's duty to bargain continued.
TENNESSEE COACH COMPANY 1053
industrial relations and it is based on the Board's experience that a period of at
least a year is needed to assure employees, through their newly certified repre-
sentative, an opportunity to establish a functioning collective-bargaining rela-
tionship.,
818 Ann Rep 43.
In adopting the Board's certification-year rule the Court of Appeals for the Second
Circuit has said
The purpose of the Act is to insure collective representation for employees, and
to that end § 9 gives power to the Board to supervise elections and certify the
winners as the authorized representatives. Inherent in any successful adminis-
tration of such a system is some measure of permanence in the results ; freedom
to choose a representative does not imply freedom to turn him out of office with
the next breath. As in the case of choosing a political representative, the justi-
fication for the franchise is some degree of sobriety and responsibility in its exer-
cise Unless the Board has power to hold the employees to their choice for a
season, it must keep ordering new elections at the whim of any volatile caprice ;
for an election, conducted under proper safeguards, provides the most reliable
means of ascertaining the deliberate will of the employees.
N. L. R. B. v. Century Oxford Mfg. Corp., 140 F. 2d 541, 542-3 (C. A. 2), cert. denied
323 U. S. 714.
There are no special circumstances in this case similar to those in cases where the
Board has found special circumstances justifying a failure to honor a certification
during the "certification year." 5
There are special circumstances in this case, but of a type requiring the protec-
tion of the certification. The election was held on November 17 and 18, 1953. No
objections to the election were filed and apparently all parties were satisfied that eiii-
ployees in the unit had had a full opportunity to freely register their preference by
secret ballot. In fact, J. E. Pryor, a company official, testified that after the results
of the election were known, "Mr. Burke [the company president] made the statement
to me in the presence of some of the others that the election had been conducted
fairly and we would abide by the decision of the majority." Yet, the Company now
contends, in substance, that the results of this election should be nullified because of
the petition dated, except for one signature, just 3 days after the election and 9 days
before the certification was actually issued. There was no showing of any special
circumstances in the composition of the unit or otherwise justifying the disregard
of the election results. Obviously, employees asked to put their signatures to the
petition did not have the protection of a secret ballot. The petition was not made
public immediately, but was kept secret for almost 2 months before it was presented
to the Company. Even if the 1-year rule is not given full recognition, the free and
secret decision of a majority of the employees should be given effect for more than
3 days and their selected representative should have an opportunity to bargain on
behalf of the employees in the unit for more than 2 months.
However, the Company contends that the case of Mid-Continent Petroleum Corp.
v. N. L. R. B., 204 F. 2d 613 (C. A. 6), cert. denied 346 U. S. 856, is determinative
of the issues in this case. In the Mid-Continent case a union won an election in a
unit of 6 employees by a 4 to 2 vote. Approximately 1 month later one of the
employees voluntarily quit and was replaced. Within the next 10 days, this new em-
ployee and two others in the unit delivered separate letters to the Company stating,
in substance, that they did not want the union as their bargaining representative.
The company thereupon withdrew recognition of the union on the ground it no longer
represented a majority of the employees in the unit. The court stated that in its
circuit, it had been held that "where the bargaining agent chosen by the employees
or designated by the Board has lost its majority status without fault on the part of
the employer, the latter is not obliged to bargain with said agent after it has been
repudiated by the employees" (supra, p. 614). In its detailed consideration of ap-
plicable decisions, the court, through Judge McAllister, placed great reliance on the
dissenting opinion of Mr. Justice Rutledge in Medo Photo Supply Corp. v. N. L. R. B.,
321 U. S. 678, 64 S. Ct. 830, 833, 88 L. Ed. 1007. In that case, Mr. Justice
"Special circumstances have been found where the Union representing the employees
was dissolved ( Public Service Gas and Electric Company, 59 NLRB 325), where the bar-
gaining representative switched its affiliation from an International union to another so
that the identity of the bargaining agent was doubtful (Carson Perie Scott, 69 NLRB 935),
and where the number of employees in the bargaining unit doubled or quadrupled in the
space of a year ( Westinghouse Electric Company, 38 NLRB 404).
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rutledge stated in his opinion that employees had the right to repudiate their bar-
gaining agent at any time. However he recognized "two possibly applicable limita-
tions." On this point, he said:
There are two possibly applicable limitations. One is that the employer must
not interfere to bring about the abandonment. The other is that, in large units,
where there are difficult problems of ascertaining whether a majority exists at
a particular time, a reasonable degree of stability in employment relations may
require, to give the statute workable operation, that a majority designation be
deemed to continue for a reasonable period, though changes meanwhile may
take away the clearly existing majority, a question not yet finally determined.19
19 Cf. N. L R B. v Century Oxford Mfg Corp, 140 F 2d 541 (C A. 2)
This language was quoted and relied on in the Mid-Continent case.
It is fairly clear that Mr. Justice Rutledge had in mind a very definite repudiation
of a collective-bargaining representative in a small unit. In the Medo Photo case
the unit consisted of 26 employees. In the Century Oxford case, cited by Mr.
Justice Rutledge as a footnote to his statement that in larger units in order to give
the statute workable operation, a majority designation may be deemed to continue for
a reasonable period though changes may take away the clearly existing majority, the
unit comprised 79 employees. The unit in the Mid-Continent case was a very small
one of 6. The original vote was 4 to 2. One vote would have affected the result.
This vote was supplied when a replacement was hired. Those opposed to the elected
bargaining representative were sufficiently aroused to write individual letters of
repudiation. Their defection or opposition was very clear and, moreover, this fact
could be readily ascertained with little trouble and expense because of the very small
size of the unit. In the instant case, there is a unit of 200 employees, many, if not
most of them, operating buses between different termini. Two days were required
to give all eligible voters a chance to register their choice. The vote was close, 106
to 89, but a clear majority voted in favor of representation by the Union. Almost
contemporaneously with the election the faction opposed to the Union circulated
its petition and succeeded in obtaining 106 signatures, plus 1 more a month later.
In substance, the dissenting group succeeded in their campaign, once the secrecy
of the ballot had been removed. What is involved here is not the protection of any
alleged vested interest in a certification as charged by some critics of the doctrine of
presumed continuance of majority for a reasonable period after certification, but the
right of a majority to be free from continued pressures to sign petitions aimed at
the certified representative, at least for a reasonable time after having expressed their
choice in a secret election.
The Trial Examiner concludes that even under a limited application of the pre-
sumed continuance of majority doctrine based on a Board certification, the majority
status of the Union must be presumed to have continued despite the petition signed
3 days after the election and that the Respondent was obligated to meet and bargain
with the Union at the dates the Union made its request for bargaining and met with
company representatives. The failure and refusal of the Company to do so was
violative of the Act. This conclusion is required not only by the authorities cited
by the Board in The Baker and Taylor case, 109 NLRB 245, but also is within the
exception recognized in the dissent in the Medo Photo case, supra, as applied in
the Mid-Continent case, supra.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
9 The Respondent has submitted a proposed finding of fact that the factual findings
should be substantially as stated in its brief. This has been accepted in substance.
The Respondent has also submitted a proposed conclusion of law to the effect that
since the Union had lost to majority, the Respondent was not obligated to bargain with It.
This proposed conclusion of law has been rejected.
CONVAIR 1055
It has been found that the Respondent in violation of the Act failed and refused
to bargain collectively with the Union as the duly designated collective-bargaining
representative of its employees in an appropriate unit. It will be recommended that
the Respondent cease and desist from such activity and on request bargain collectively
with the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Tennessee Coach Company, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Division 1490, 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.
3. All systemwide bus operators and maintenance employees of the Respondent,
excluding all office and clerical employees, terminal employees, watchmen and all
guards, professional employees, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
4. The aforementioned Union was at all times material and now is the exclu-
sive representative of the employees in said unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
5. By refusing on January 8, 1954, and at all times thereafter to bargain col-
lectively with the Union as the exclusive representative of its employees in the ap-
propriate unit the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
6. By such activity the Respondent has also violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
CONVAIR , A DIVISION OF GENERAL DYNAMICS CORPORATION and
CHARLES E. PENSE
INTERNATIONAL ASSOCIATION OF MACHINISTS, GUIDED MISSILE LODGE
1254 and CHARLES E. PENSE. Cases Nos. 21-CA-1911 and 21-CB-
561. March 92,1955
Decision and Order
On August 23, 1954, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents i had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter, the Respondent
Union and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs. The Respondent Union's request for
1 At the suggestion of Convair, A Division of General Dynamics Corporation, the com-
plaint was amended at the hearing to substitute it as the Respondent Company herein in
place of Consolidated Vultee Corporation, Pomona Division, tha Respondent Company
originally named in the complaint.
111 NLRB No. 185.