Texas, New Mexico & Oklahoma Coaches, Inc.

National Labor Relations Board - Board Decisions

Dec 26, 1942

46 N.L.R.B. 343 (N.L.R.B. 1942)

In the Matter of ,1. EXAS, NEW' MEXICO & OKLAHOMA COACHES; ING,
and BROTHERHOOD OF RAILROAD TRAINMEN
Case, No.- C-,0,231.-Decided December 26, :1942-
.
Jurisdiction : motor transportation industry.,
Unfair Labor Practices:
In General: responsibility.of employer for acts of former officer and stockholder
and person doing business with employer.
Interference,' Restraant,'and Coercion: anti-union statements ; interrogation con-
cerning union membership; urging and persuading employees to refrain from
joining.union;.offering wage increases on'condition employees withdraw from
union; , offering and, soliciting signatures to individual contracts, of employ-
ment to prevent collective bargaining;' sponsoring and soliciting letters of
withdrawal from union. -
Coll'ective' Bargaiini? g:' majority established' -by, authorizations-refusal to, bar-
gain by : refusing to recognize and bargain, with majority representative because
of unlawful individual contracts, and embarking upon a campaign designed to
destroy union's majority, status by granting bonus and, soliciting- letters of,
withdrawal. - -
-Remedial Orders: cease and desist unfair labor practices. refrain from enforc'
ing,'individual contracts and give notice thereof to contracting employees;
upon request, to bargain collectively; loss of, majority-induced by employer's
unfair labor practices held not to affect issuance of order requiring employer
to bargain collectively.
Unit Appropriate for Collective Bargaining : motor bus drivers.
Mr. V. Lee McMahon, and Mr. Bliss Daffan, for the Board.
Messrs. Callaway cC Reed, by Mr. Carl B. Callaway, of Dallas, Tex.,
and Levees d Benson, by Mr. Jess,C.,Levees and Mr. W. B. Benson,
of Lubbock, Tex., for the respondent.
Mr. C. H.,Smith, of Fort Worth, Tex., for the B. R. T.
Mr. Charles F. MCEt lean, of counsel'to the Board.
DECISION " . '
AND '
ORDER - , _
STATEMENT OF THE CASE
Upon a first amended charge duly filed February` 11,-1942, by the-
Brotherhood'of 'Railroad Trainmen', herein called B:= R.' T.; the Na-
46 N. L. R B:, No. 42-
343
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Board, by its Regional Director for the Six-
teenth Region (Fort Worth, Texas), issued its complaint dated Feb-
ruary 25, 1942, against Texas, New Mexico & Oklahoma Coaches,' Inc.,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
.within the meaning of Section 8 (1) and (5) . and Section 2 (6) and -(7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. , Copies of the complaint, accompanied by notice of hearing
thereon, were duly served upon the respondent and upon B. R. T.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) on or about August 27, 1941, and
at all times thereafter refused to bargain with B. R. T. as the exclusive
collective bargaining representative of all its, bus drivers although
such employees constituted a unit appropriate for the purposes of col-
lective bargaining and B. R. T. at all- times -since about August 26,
1941, has been their exclusive representative for such purposes; and
(2) from on or about February 19, 1941, (a) urged, persuaded, and
warned' its employees to refrain from aiding;,becoming, or remaining
members of, B. R. T. and by such means secured their' signatures to
-letters withdrawing from B. R. T.; (b) threatened said employees
with discharge or other reprisals if they aided B. R. T. or became
members thereof; (c) granted said employees increases in pay if they
did not become or remain members of B. R. T.,and warned them that
no such benefits- would be derived, by reason of union membership;
(d) secured the signatures of employees to individual contracts of em-
ployment granting them increases in pay and other, benefits so as to
prevent collective bargaining with B. R. T. and thus to interfere with
the rights of the employees to bargain through representatives of their
on choice. ,
The complaint was amended-by motion made at the hearing, with-
out objection, to charge further that the respondent, through a speech
made by its attorney before a meeting of drivers called by the re-
spondent, stated, that'"no, benefits could be expected to be obtained
by them by reason of membership in B. R. T.- for a period of from
18 months to 2 years from the date of the hearing'and thereby dis-
'couraged and interfered with the participation of said employees in
the hearing herein."
On March 6, 1942, the respondent filed its answer, admitting certain
facts as to its corporate organization and its business but denying that
it had engaged iii any of the unfair labor practices alleged. It further
entered a denial during the hearing to the amendment to the complaint.
Pursuant to notice, a hearing was held from March 9 through March
1 The respondent was, named in the complaint as'Texas-New Mexico -Oklahoma Coaches.
The name was corrected by motion made at the hearing.
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 345
20, 1942, at Lubbock, Texas, before Charles E. Persons, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board and
the respondent were represented'by counsel and B. R. T. by a repre-
sentative. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.2 At the conclusion of
the hearing oral argument, participated in by the respondent and the
Board, was held before the Trial Examiner. During the course of the-
hearing the Trial Examiner made rulings on motions and on objections-
to the admission of evidence. The Board has reviewed all rulings' of
the Trial, Examiner and finds that no prejudicial errors were coliimit-
ted. The rulings are hereby affirmed.
Thereafter the Trial Examiner filed his Intermediate Report, dated
June 17, 1942, copies of which were duly served upon the respondent
and B. R. T., finding that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
Act, and recommending that it cease and desist from such practices
and take certain affirmative action designed to effectuate the policies
of the Act. Thereafter the respondent and •B. R. T. filed exceptions to
the Intermediate Report. Pursuant to notice; a hearing for the pur-
pose of oral argument was held before the Board in Washington, D. C.,.
on October 20, 1942. The respondent did not appear; B. R. T. appeared
but did not participate.
On October 19, 1942, a motion was filed by 37 bus drivers of the re-
spondent requesting that they be allowed to intervene;' that a commit-
tee-of 3 of them be designated as bargaining agent for the respondent's
bus drivers; and that the respondent be ordered to bargain with such
committee. The Board has considered the. motion and it is hereby
denied for reasons hereinafter stated.'
The Board has considered the exceptions to the Intermediate Report
and, insofar as they are inconsistent with the findings of fact, conclu-
sions of law, and order set out below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Texas, New Mexico & Oklahoma Coaches, Inc., is and has been
since June 1939 a corporation organized under the laws of the State of
, At the opening of the hearing the"Trial Examiner granted the respondent 's request to
"invoke the rule," which disqualified persons (with certain specific exceptions ) from testify-
ing as witnesses if they were previously present as observers at the hearing.
3 See Section V, infra.
.346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas, with its principal , office and place of business at Lubbock, Texas.
The respondent operates approximately 20 busses on regular schedules
over routes between northwestern Texas and eastern, New Mexico,
transporting passengers and, carrying mail under contract with the
United States Government . - Through agreements with Bowen Motor
Coaches , Inc.,,and ; with Southwestern Greyhound Lines, the respond-
ent sells connecting line tickets , thereby arranging. and contracting
for the transportation of passengers to and through many other States,
of the United States . Also by reason of, this affiliation Southwestern
Greyhound -Lines sells tickets in, many other • States of the United
States , for the transportation of passengers through and over the bus
lines operated by the respondent., , • , , , , , ,
II. THE ORGANIZATION INVOLVED
Brotherhood of Railroad Trainmen is a labor organization admit-
ting to membership eiuployees of the respondent.
ITI. THE UNFAIR LABOR PRACTICES'
A. Interference, -restraint, and coercion:
In ,January and' February 1941 ,,B. -R. T., at the request of , certain
of the respondent 's bus drivers , undertook to organize the bus drivers.
By the middle of February ,' about 12 bus drivers - had- authorized
B. R. T. to represent them for the purpose of collective bargaining.
J. W. Bowman , the respondent 's president , admitted that he heard
about a union among the drivers ,,-prior to February 19, 1941, but
denied that he had -heard of B. R. T., The ,respondent 's -counsel, Jess
C.• Levenss,, testified that - he first heard that the drivers were joining
B. R. T. about a week prior to February 19, 1941. .All important prob-
lems which arise in the : operation of the respondent 's business are dis-
cussed - by Bowman with Levens, who has been in. close touch with the
respondent 's labor relations ', and notling ; has been -, done.in . tllis,con-
nection without Levens' knowledge.. Two of three -days after February
12, 1941 , Carpenter , the respondent 's superintendent of drivers, sum-
moned Clay Knox, one of the drivers , -to his office . According to
Knox's undenied and credible testimony , Carpenter inquired if Knox
had joined B. R. T. " Knox advised ' Carpenter' `that he would prefer
not to answer the inquiry , whereupon Carpenter told Knox that it
was his privilege to join, but th it' he would like him to know what lie
was getting into-before he signed up, and that only seven of'the drivers
had joined . We•find accordingly that Bowman knew of the B. R. T.
activities of the , drivers about •tlie middle , of'Feljruary 1941. --
TEXAS; NEW MEXICO OKLAHOMA COACHES, INC. 347
About the middle of February 1941, driver R. S. Nabors met Levees
in a cafe near the bus terminal. According to the testimony of Nabors,
which ,we credit, Levens called Nabors over to where he was and in-
quired if Nabors knew what the drivers wanted. Nabors answered
that, they wanted more money. Levens then told Nabors that "we
,didn't need'any union." On another occasion, Levens told Nabors that
it would be'better if they could settle their affairs among themselves.
B. R. T. was' not mentioned on'this occasion, but Nabors testified that
he assumed that Levens -meant "we didn't need any union." Levens
did not deny the above testimony of Nabors and testified-that whatever
Nabors said was "about right."
About the middle' of February, L. L. (Bill) Watson. interested
himself in the activities of the respondent's bus drivers. Prior to
January 1941, Watson had been connected with the respondent and
its predecessor for over 15 years, having previously owned and op-.
orated a bus line which, by a series of consolidations, emerged as part
of the respondent. Watson regularly operated a bus as a driver
,until late in -1938'. Thereafter, he was superintendent ofrdrivers for
about a year. Subsequently he worked in the ticket office and baggage
room at the respondent's-Lubbock, Texas; terminal. During this
period, Watson owned slightly less than 10 percent of the. respondent's,
stock and was a vice president and director. On January 15, 19.41,
Watson resigned' as vice president and director of the respondent.
He ceased working for the respondent in any capacity at about that
time and shortly thereafter sold his stock to Bowman. Transfer of
the stock was entered on the respondent's stock book as of February 5,
1941. The stock transaction was largely on credit; Bowman paid.
Watson $6,000 and executed three notes, one in the amount of $5,000,
due in June 1941, one in the amount of $10,000, due January 1, 1942,
and' one in the amount of $22,600,, which was still outstanding at the
time of the hearing. In addition, Watson retained the right to re-
,ceive :the dividends upon 100 shares of stock for. the year 1941. The
,dividend,, totaling $2,000, was paid to Watson on January 1, 1942.
Watson approached Burt Whitefield on February 16, 1941. White-,
field had been a bus driver for the respondent's predecessor and at the
time was engaged in business in Lubbock. He had been assisting the
drivers.to organize into B. R. T. to the extent of signing a letter in
their behalf and allowing the drivers to use-his office in- connection
with their organizational activities. According to Whitefield's testi-
mony, Watson attempted in the following manner to halt the em-
ployees', organizational activities; He told Whitefield that, he heard
that the bus drivers were organizing; that Bowman had called him
in to find out about it and had suggested that he talk to Whitefield,
whom Bowman considered one of the leaders. Watson inquired if
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would be satisfactory if he, Watson, could get the drivers what they
wanted from the respondent, saying that Bowman would not tolerate-
a, union but would give the drivers "a little company union." White-
field suggested that Watson ask the drivers. Watson and Whitefield
then went to see driver Mullins. Watson told Mullins that he be-
lieved they could have a better organization without B. R. •T. and that
the respondent would give them a contract. Watson admitted speak-
ing to Whitefield but denied the testimony of Whitefield and denied
going to the home of Mullins with Whitefield. The respondent ealled
Mullins as a witness but- he was not questioned about the testimony
of Whitefield. For reasons hereinafter set forth, we credit the testi-
inony, of Whitefield and find that the conversation took place sub-
stantially as testified to by him.,
Subsequent to the talk with Whitefield, Watson telephoned Clax-
ton Stewart and then went to Stewart's home. Stewart had been
active in, assisting the drivers to organize and had been one of the
respondent's drivers until February 2, 1941. According to Stewart's-
testimony, Watson ,said that ' he heard that the drivers, were, trying
to join a union; that he would like'to help them as a friend; and that,,
if he was unsuccessful, he would assist them in joining B. R. T_
'Stewart further testified that Watson advised him that Bowman had
called Watson and told him that the drivers were joining a union and
that Stewart was one of the leaders, and suggested that Watson talk
to Stewart. Further according to Stewart's testimony, Watson told -
him that he.desired to speak to the" drivers and asked Stewart to ar-
range for a meeting, but Stewart refused, saying that he had no
objection to having Watson talk to the drivers and, offering -to allow
Watson to hold such a meeting at Stewart's home if Watson arranged
for it. Watson admitted the truth of most of Stewart's testimony
but denied telling Stewart or anyone else that Bowman had sent him
to Stewart or that-he had spoken to Bowman prior to his conversa-
tion with Stewart. -For reasons- hereinafter set forth, we'credit' the
testimony of Stewart and find that the conversation took place sub-
stantially as testified to by Stewart.
Watson returned to Stewart's home about an hour after the above
conversation and was accompanied by drivers Albert Owens, J. G.
Mullins, and Kirby Stroud. Mullins; a witness called by the respond-
ent,'testified that Watson came to his home andtook him to,a)meeting
at the home of Stewart. Before going to the meeting, Watson, ac-
cording'to the uncontradicted and credible testimony of Mullins, in-
quired if Mullins had signed an application for B. R. T. When Mul-
lins answered affirmatively, Watson asked if Mullins thought a union
could do more for him than 'Watson or the respondent. Watson also
inquired whether Mullins would be satisfied if Watson could get as
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 349
much for him as B. R . T. Kirby Stroud and Albert Owens both tes-
tified that they attended the meeting at Stewart's house and that they
were invited by Watson. 'Watson, Stewart, Stroud, Owens, and Mul-
lins were the only persons at the meeting where, according to Mullins,
Watson spoke for the respondent., • According to the testimony of
Stewart , which we credit, Watson made the same statements to those
present at the meeting that he had previously made to Stewart. It
was decided to have, a further meeting that afternoon with a larger
number of drivers in attendance.
A meeting attended by a, large number of the drivers 'vas held that
afternoon at the home of Stewart. ' Watson was not present at the
early part of the meeting, but the drivers discussed Watson's proposal
and the demands they desired to make of the respondent. They finally
decided to request a mileage pay base with rates from 2 to 21/ -cents
per mile, depending upon the run involved. Stewart then called Wat-
son, who came to the meeting accompanied by Carpenter, and C. M.
Owens, the respondent's traffic manager and one of its stockholders.
Watson; Carpenter, and C. M. Owens were advised'of the drivers' sal-
ary and seniority demands. Watson and C. M. Owens immediately
advised the drivers that the demands were excessive. • Watson sug-
gested that they discuss lower rates of pay, and with the assistance of
Watson, Owens, and Carpenter, this, was done. All of the respond-
ent's regularly scheduled runs were discussed and either Watson, Car-
penter, or C. M. Owens advised what,the respondent could pay on
each run . When the reduced rates were determined, Watson agreed
to present the matter to Bowman, having previously refused to present
the higher demands as worked out by the drivers when they met by
themselves.
Watson admitted asking Bowman if he would be agreeable to
arranging to pay the drivers on a mileage basis. Watson also spoke to
Levens, the respondent's counsel , to determine if Levens would oppose
such a proposal. On direct examination , Watson testified that he
spoke to both Bowman and Levens after the meeting at Stewart's
house. On cross-examination he could not remember whether it was
before or after the meeting at Stewart's house.
About the same time the meetings were held at Stewart's house,
Watson called at the home of driver Clay Knox. According to the
undenied testimony' of Knox, which we credit, Watson told Knox to
get out of B.,R. T. if he had already signed up, as it would cause trouble
and Watson would get them what they wanted without B. R. T. Wat-
son further said that he knew Bowman better than the drivers and
would be able to get more than the drivers. Watson concluded by,
telling Knox that Bowman would keep the matter in the courts for 2
or 3 years before he would submit to a union.
350 DECISIONS ; OF NATIONAL LABOR RELATIONS BOARD,
Albert Owens testified that about the time of the meeting at Stewart's
,home or shortly thereafter , Watson advised , him that Bowman had
called Watson to come and talk to the drivers and determine what they
wanted in the way of wages. Watson denied that he had made any
such statement to anybody . On February 17, 1941, which is about the
time Watson spoke to Owens, the latter advised B. R. T. by letter that
the drivers ' efforts to organize had failed because Bowman had learned
about it and had gone "all to pieces and called , Mr. Bill Watson, one
of the principal stockholders of the Company"; that Watson had
agreed that something should be done and offered to assist the, drivers ;
and that , as a result of Watson 's talk with the drivers , it was decided
to make their demands on the respondent "without outside affiliation."
We credit the testimony of Owens for reasons hereinafter stated, and
find that Watson made the statements as testified to by Owens.
After the meeting at Stewart's home, driver Albert Owens spoke to
Stewart and expressed dissatisfaction with Watson's , proposal. _ That
evening, several of the drivers discussed the proposal ; among them-
selves and concluded that they would prefer to continue with B. R. T.,
as they felt that they were not receiving sufficient benefits from Wat-
son's proposal . Nevertheless , Watson, Stewart , and some of the drivers
met with Bowman the following morning in the latter 's
'
office. The
proposal of the meeting of the previous day was discussed with Bow-
man and was finally accepted by him . Levens was then siunmoried
to the meeting and instructed to draft a contract incorporating the
terms agreed upon, which included wages on a mileage basis ranging
from 11/2 cents per mile to 2 cents per-mile, seniority with the privilege
of bidding for runs in accordance with seniority , and certain other
supplemental provisions,, including a provision for the publication of
rules and regulations by the respondent.
Shortly after the meeting in Bowman 's office, Stewart received word
that B. R. T. Organizer Johnson had arrived in Lubbock and went
to meet him . After advising Johnson about the Watson contract,
Stewart and Johnson went to the bus terminal to talk with some of
the drivers . As none of the bus drivers was available , they departed
from the vicinity of the bus terminal . Bowman admitted seeing
Johnson in front of the bus terminal on one occasion in company with
Stewart, but was unable to fix the time . Bowman testified that he
]earned Johnson's identity after an investigation , which he undertook
to determine whether or not Johnson was a representative of some
travel bureau , who might be attempting to divert the respondent's
passengers to other modes ,of transportation. '
After leaving Johnson , Stewart returned to the bus -terminal and
met Watson . According to Stewart 's undenied testimony, which
we credit , Watson inquired as to what the drivers had decided upon.
TEXAS, NEW MEXICO &--OKLAHOMA COACHES, INC. 351
Stewart advised Watson that the drivers would rather go ahead with
B. `R. T. Watson stated that he did not know that they, were dis-
satisfied and asked why the drivers did not talk to him about it.
Stewart- told Watson that he did not 'know but assumed that -the
-drivers did not feel free _ to talk to him and desired that Stewart
speak for them.
That evening,' Levens called Stewart and invited him to go to
Levens' home. A few minutes later Watson went to Stewart's home
and, upon being informed that Levens had called, drove Stewart
to Levens'- home.'. Levens had the contract which he had drafted,,
and a discussion took place concerning it. Stewart testified that
he understood the purpose of the meeting was that Levens wanted
-him "to talk to the boys and sell them on the idea of that contract."
Levens, testified that the discussion was concerned chiefly with Stew-
art's position on the seniority list and whether Levens had drafted
the contract in accordance with the instructions which had been
given him., Levens denied that he tried to influence Stewart to get
the driver's to accept the contract. The Trial Examiner did not
resolve this conflict. As hereinafter found, Stewart was a reliable
witness. We' have examined and considered the testimony of
Levens. A reading of the testimony of Levens indicates that
he had many lapses of memory, was at times evasive, and made in-
consistent statements. We are consequently unable to rely on his
testimony. On the basis of all the testimony and circumstances, we
credit the. testimony of Stewart and reject the denial of Levens.
- The following morning, copies of the contract 4 as drafted by
Levens were made available in the "back office" of the bus terminal.
This office was used by Carpenter and Owens in connection with
their duties as superintendent of drivers and traffic manager, respec-
tively. Watson remained at the terminal and took an active part
in soliciting drivers to read and sign the contract. There is un-
contradicted evidence that a large number of the drivers were solicited
by Watson, to read and sign the contract. ' Carpenter and Owens
were ' also present in the "back office" while some of the drivers read
and sighed the contract. Driver. Dave Neal testified as follows con-
cerning the circumstances under which he signed: Upon his return
from a* run at 5:20 a. in., he was summoned by Watson to the "back
office" to read and sign the contract. After examining the con-
tract, Neal called Watson's attention to the fact that it did not
provide for special runs and charter trips. Watson told Neal that
he "would guarantee" that arrangements "satisfactory to the boys"
would ke -made at a later date. Neal testified that he concluded
4 One document was prepared which was to be signed by each dri ` or ^ An -original and
one copy were provided for the purpose of signature - +
,352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Watson "had authority from the company" to make such a
guarantee. The above testimony of Dave Neal is, undenied, and
we credit it.
Watson, Superintendent, Carpenter, and Traffic Manager Owens
were present when Clay Knox examined and signed the contract.
'One ,of the three, according to the undenied and credible testimony
of Knox, stated on this occasion, "This is getting you what you want
without joining the union."
J. T. (Tom) Armstrong who, at the time in question was working
in the ticket office, signed the contract, when he 'was, according to his
own testimony, advised by Ruth Zimmerman, a stockholder and con-
fidential office employee as well as pay-roll clerk of the respondent,
that it would be necessary to sign the contract if he wanted to drive.
Armstrong returned to driving on March 1, 1941. Zimmerman did
not testify. We credit Armstrong's testimony and find, as did the
,Trial Examiner, that the respondent is responsible for the activities'
of Zimmerman. 'We base the latter finding not only on the fact that
Zimmerman is one of the respondent's stockholders, but also on the,
'testimony of Bowman that she serves as treasurer of the respondent,
signs checks, takes care of all mail, and is the person to whom the,
respondent's employees come - "for about everything they want," and
on the fact that she participated with other officials of the respondent
in the campaign to secure withdrawals from B. R. T.5
Watson personally checked the-contract to determine if'all drivers
had signed, and took a trip to Spur, Texas, and Hobbs, New Mexico, to
secure the,signatures of three drivers who were not available in Lub-
bock. The record does not disclose who paid Watson's expenses in
obtaining these signatures. Finally, when Watson' had secured the
signatures of all drivers, the contracts were executed 'for the respond-
ent by Bowman., The contracts, which are dated February 19, 1941,
became effective March 1, 1941, and terminate March 1, 1943. Sub-
sequent to the signing of the contracts, the drivers agreed upon a
seniority list which was thereafter posted at the respondent's ter-
minal. The drivers also elected a committee composed of Dave Neal,
chairman, N. J. Lowery, and Nabors to represent them., This com-
mittee discussed rates for charter trips with Bowman, and on March
25, 1941, as guaranteed by Watson, they obtained a supplemental
contract on behalf of all drivers. The supplemental contract was
drafted by Levens; who advised the committee that it had authority
to enter into the contract on behalf of all the drivers, when the
question arose as to whether or not all drivers should sign it.
As set forth above, Whitefield, Claxton Stewart, and Albert Owens
testified that Watson told them that he had been summoned by
6 See Section III B , infra.
TEXAS, NEW MEXICO & OKLAHOMA ' COACHES , INC: 353
Bowman, who told him that the drivers were organizing and re-
quested him to find out about it and determine what the drivers
wanted in the way of wages. Watson denied , the testimony of
Whitefield , Stewart , and Owens , and testified that he intervened as
a friend of the drivers to assist them. Bowman denied requesting
Watson to intervene in the organizational affairs of the drivers and
testified that he did not know of the activities of Watson until
Watson advised him of the drivers ' demands. The respondent also
contends that Watson had always aligned himself with the drivers
in any disputes they had with the respondent ; that his activities in
February 1941 were merely a continuation of his past assistance and
help to the drivers; and that the respondent is consequently not
responsible for his conduct . The record indicates that the disputes
referred to were generally individual matters concerning accidents,
road failures, and other minor disputes which arose between various
drivers and the respondent . There is no evidence that Watson at
any time prior to February 19, 1941 , and during the 'entire time he
was officially connected With the respondent , represented all em-
ployees in negotiating with the respondent on matters of wages',
seniority , or working conditions . Watson testified that he had
always been friendly with the drivers ; that they brought their finan-
cial and personal troubles to him as a friend and , official of the
respondent ; that while he was superintendent of drivers he discussed
working conditions with them; and that he used his influence 'as an
officer of the respondent to help them . Watson further testified that
the drivers knew that he was vice president of the respondent and
second in charge. -
The Trial Examiner did not rely on the testimony of Albert
Owens, allegedly because Owens was a reluctant witness and his
testimony contained contradictions and lapses of memory. On the
other testimony the Trial Examiner credited Watson and . Bowman
over Whitefield and' Stewart . We hesitate to disturb the Trial
Examiner 's findings on credibility , but, after examining all the
evidence , we are unable to agree with him. -
The testimony of Whitefield and Stewart was forthright and con-
vincing and was not shaken on -cross-examination . Neither ' White-
field nor Stewart had any interest in the proceeding , as both had-left
the employ of the respondent prior to the events concerning which
they testified . Whitefield was, and had been for some time, engaged
in business in Lubbock and had -no connection with either the re-
spondent, the drivers, or B. R.' T. Whitefield was merely assisting
the drivers , at their request, and persuasively testified that he had
no interest - in the matter and was only trying to accommodate the
drivers by allowing them the use of his office in connection with their
r l
504036-4 3--vol. 46-23
354 D'ECISIONS . OF. NATION!AL.,LABO,R- RELATIONS BOARD
organizational efforts. -At the time of the. hearing,, Stewart_ had
moved, from. Lubbock and resided. ,at Dallas, Texas,- where he- was
employed in an industry which, was unrelated to, the respondent's
business. ,.The Trial Examiner credited,, other testimony, of Stewart'
which was denied by Watson 6
Albert_ Owens was a Board,witness who was - not only reluctant,
as found by the Trial Examiner, but, was adverse and hostile. Even
a cursory reading of his testimony indicates that,he was hesitant to
testify although he was acquainted with the events, that, occurred:
It was under these circumstances and while being treated as an ad-
verse witness that he' reluctantly testified that Watson -told him that
Bowman had asked Watson to talk to the drivers and determine
what they wanted in the way of. wages., An additional reason for
giving weight to Owens' testimony is the letter, referred. to above
which he wrote to B. R. T. at the time the events therein referred to
occurred. -
Watson was not a frank and forthright witness, and an -exa_mina-
tion of. his,testimony discloses that he had many lapses -of memory
and was evasive on numerous occasions, particularly on cross-exam-
ination. Although, Watson denied knowing whether, any drivers
had authorized B. R. T. to represent -them, Mullins, another witness
called by the respondent, testified without contradiction that, in re
sponse to an inquiry from Watson, he told Watson' that he had
authorized B. R. T. to represent him: Watson also had a financial
interest at stake at the time the events occurred and therefore can-
not be considered as a disinterested witness.
Bowman's testimony also discloses lapses of memory, evasiveness,
and some contradiction. Thus he denied hearing of B. R. T. prior to
August 27, 1941. Yet on or about March 15; 1941, he signed a notice
to employees which was posted in the respondent's bus terminals. In
another part of his testimony he admitted that he knew that the
charges, which were the basis of the notice which was posted, had
been filed by B. R. T. The Trial Examiner refused to credit B_ow-
man's testimony in connection with another phase of the case.
On the basis of all the testimony and all material circumstances,
including the respondent's subsequent conduct in refusing to bargain
with B. R. T. and its campaign to secure withdrawals from B. R. T.,
we find that Bowman and Watson are not, reliable witnesses and that
Bowman, upon learning that the drivers were joining B. R. T., sum-
moned Watson to intervene and offer the drivers wage increases and
individual contracts'in lieu of bargaining through B. R. T. Having
selected Watson as its agent, the respondent is therefore responsible
° Stewart testified that Watson arranged for and brought drivers to his home for i
meetin Watson denied this testimony ; yet the Tiial Examiner found that _ Watson did
bring the drivers to the meeting.
TEXAS, NEW-'MEXICO' & OKLAHOMA- COACHES,--MC. 355
for his activities. Additional indication of Watson's - authority to
represent the respondent is found in the undenied and credible testi-
mony of Dave Neal that Watson would "guarantee" that satisfactory
provisions would be made covering special trips and charter runs.
During the following month, Watson's "guarantee" was fulfilled by.
the respondent . In addition , Carpenter and C. M. Owens , two of the
respondent's officials, attended the meeting at Stewart's house with
Watson and participated in Watson's efforts to have the contract
conform to provisions acceptable to 'the respondent. ' That the indi-
vidual contracts were the product of the respondent and part of its
plan to frustrate B. R. T. activities of the drivers , is apparent from
Levens' request 'that Claxton Stewart influence the drivers to accept
the contract. The record is clear that the respondent had knowledge
of the B. R. T. activities of the drivers both from Carpenter's question-
ing of Knox and Bo tinan's and Levens' admission of knowledge. All
three are responsible officials and agents of the respondent.
Even if we accepted the Trial Examiner's findings on credibility, we
should nevertheless find from the, evidence that Watson was acting
for the respondent and that the respondent is therefore responsible for
his activities . While it is true that, at the time the events occurred,
Watson had resigned his official position with the respondent and trans-
ferred his stock to Bowman, he nevertheless retained a financial interest
in'its business . There was still due Watson the sum of $37,600 for his
stock, and Watson had a vital interest in the respondent 's earnings for
the year 1941', as he had the right to receive dividends on 100 shares of
stock for the year 1941 and did subsequently receive in dividends
$2;000. Moreover , the record is clear that his resignation as an official
of the respondent was not made known to the respondent 's employees.
Although most of the drivers testified at the hearing , not one stated
that he knew Watson had resigned . On the contrary , many of the,
drivers and those active in assisting drivers to join B. R. T. testified
that they believed that Watson was still a director or officer of the
respondent , although some of them testified that they knew that Wat-
son was no longer actively working for the respondent . Thus, Claxton
Stewart testified that he understood , that Watson was vice president
and a stockholder and was representing the respondent when he ap
proaclied Stewart in the latter half , of February 1941 . Whitefield
testified that he understood that Watson was connected with -the
respondent when Watson approached him in February 1941. Dr'vp'r
Knox testified that he understood that -Watson was a stockholder of the
respondent . -Dave Neal testified that he understood that Watson was
a stockholder and vice president,' but had quit working . D. L., King,
a driver , testified that he understood that Watson was connected with
the, respondent in,some way._, Albert Owens testified that Watson
%
356 DECISIONS- OF NATrONAL°-LABOR RELATIONS -BOARD-
represented the 'respondent at the meeting of drivers which was held
just prior to February 19, 1941, and on February 17, 1941, Owens wrote
a letter to B. R. T., in which he identified Watson as one of the respond-
ent's principal stockholders although "inactive of late." Driver Green
testified that Watson was vice president and described him as one of
the respondent's officials although he knew that Watson was not work-
ing in February 1941. L. Z. Lowry and J. D. Mullins, drivers called
as witnesses by the respondent, testified that Watson spoke for the
respondent at the meeting of drivers which was held at Stewart's
home in February 1941.
Although the respondent was fully aware of Watson's activities,
it did nothing to disturb the understanding of the' employees that
Watson was still officially connected with the respondent and that
he spoke and acted for it. That impression was further strengthened
by the fact that Watson's approach to the drivers completely con-
formed to the respondent's policy, as announced by Levens to Nabors,
that the drivers did not need a union and that it would be better to
settle the matter without any union. Furthermore, Levens summoned
Stewart, the drivers' ,spokesman, and requested him to influence the
drivers to accept Watson's proposals; Watson advised Knox that the
respondent would not accept B. R. T. without protracted litigation,
suggested that Knox resign from B. R. T. and accept Watson's pro-
posal; Carpenter and C. M. Owens, officials of the respondent, partic-
ipated in the meeting at' Stewart's house and together with Watson-
objected to the drivers' demands and assisted in dictating terms which
would be acceptable to the respondent; and Watson guaranteed that
changes satisfactory to the drivers would be-made in the contract,
which guarantee was completely fulfilled by the respondent. We find
that the conformance of Watson's approach to the respondent's policy
clearly indicated to the drivers that Watson was representing the
respondent.?
Upon all the evidence, and in light of the respondent's subsequent
conduct in refusing to bargain with B. R. T., its campaign to secure
withdrawals from B. R. T., and its' entire course of conduct, we find,
contrary to the Trial Examiner, that the respondent, through Watson,
offered and influenced the 'drivers to accept the individual contracts
as a substitute for collective bargaining through representatives of
their,own choosing. We further find that the respondent's pu'r'pose
in ,procuring _and presenting_ the contracts was, through the guise
of'spiiriotis iridividual'bargaining, to foreclose its employees from
exercising the right to self-organization and collective bargaining,
guaranteed to them tinder the Act.- The presentation' of the contracts
' Cf. Matter of Sun Tent-Luebbert Company, et al, 37 N L R. B. 50; ef. Matter of Henry
McCleary Timber Company and International Woodworkers of America, Local No. 38; affili-
ated with the Congress of Industrial Organizations, 37 N. L R. B. 725.
TEXAS, NEW MEXICO -& OKLAHOMA COACHES, INC. 357,
was intended to, and in fact did, halt the organizational efforts of the
drivers until,the summer of 1941. Because of this and the other facts
surrounding the presentation and execution of the contracts, we con-
clude that the contracts as executed did not represent the real or free
choice of the employees who signed them.8
We find further that by these activities and by the activities of
Levens, Carpenter, C. M. Owens, and Bowman in frustrating the or-
ganizational efforts of the drivers, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act .9
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all bus drivers in the employ of the
respondent constitute, a unit appropriate for the purposes of collective
bargaining. The respondent contended in its answer and at the hear-
ing that such a unit was not appropriate, claiming that drivers were
closely related to other employees, particularly mechanics and shop
employees. The only employees of the respondent who are eligible for
membership in B. R. T. are bus drivers. So far as the record shows,
no attempt has been made by B. R. T. or any other labor organization
to 'organize -other' employees of the respondent. In authorizing
B. R. T. to represent them, the drivers stated that they desired that
the bus drivers be considered an appropriate unit. The duties, func-
tions, responsibilities, problems, and working conditions of the bus
drivers differ substantially from those of the respondent's other em-
ployees and set them off as a distinct group. It is to be noted also
that the respondent executed the February 19; 1941, contracts with bus
,drivers only. We find the respondent's contention to be without merit.
We find that all bus drivers of the respondent at all times material
herein constituted and now constitute a unit- appropriate for the pur-
poses of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of 'employment, and that said
8 N L. R B. v. Superior Tanning Company , 117 F. ( 2d) 881 (C. C. A. 7), cert . den. 313
U. S 559; N L. If. B. v. Stone, et al, 125 F. (2d) 752 (C. C. A. 7), cert. den. Oct 12,
1042; N. L. If. B. v Jahn and Oilier Engraving Co., 123 F ( 2d) 5S9; Matter of Williams
Manufacturing Company, Portsmouth, Ohio and United Shoe Workers o f America, Ports-
mouth, Ohio , 6 N. L.,R . B. 135.
8 The complaint , as amended at the hearing , alleged that the respondent violated Section
8 (1) of the Act by a speech made by its attorney at a meeting of drivers during the course
of the hearing The Trial Examiner considered this evidence as well as the reasons assigned
by the respondent for calling the meeting . He concluded that the meeting was called be-
cause of the prevalence of certain disturbing rumors as to the employment security of the
drivers and that'the attorney attempted to put at rest these rumors. The Trial Examiner
concluded that there was no evidence to indicate violation of Section 8 (1) in connection
i with this speech . No exceptions were filed to this finding. We have examined the record in
this respect and agree with the Trial Examiner that Section 8 (1) wa's not violated by the
speech.
358 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
unit insures to the employees the full benefit of their right to self-
,organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by B. R. T. of a majority in the" appropriate unit
The respondent submitted a list of its bus drivers as of August'27,
1941, containing 29 names. There are in evidence 30 authorizations
signed by the respondent's bus-drivers, designating B. R. T. as their
representative for the purposes of collective bargaining. Three of
the 30 authorizations are duplicates; 10 3 had been signed by bus
drivers whose employment was terminated prior to August 27; 11 1
authorization was dated August 27 and 1 was dated August 28, 194112
The remaining 22 authorizations are those of bus drivers in the employ
of the respondent on August 2713and were signed-in the year'1941
and prior to August 27. Thus, on August 27, 1941, B. R. T. repre-
^ented a majority of the, respondent's employees in the unit herein
found appropriate 14
We find that on August.27,1941, and at' all times thereafter, B. R. T.
wins the duly designated bargaining representative of a'majority of
the employees in the aforesaid "appropriate unit, and that, by virtue
of Section 9 (a) of the Act, B. R. T. was at all times material herein
and is the exclusive representative ,of all employees in such unit for
the purposes of collective bargaining in respect to rates of pay,,wages,
'hours of employment, and other conditions of employment. .
3. The conferences of August 27, 1941, with B. R. T.
Late in July 1941, several months after the individual contracts
had been signed, the respondent's bus drivers started discussing^arnong
themselves possible demands for-an additional increase in pay. They
n Duplicate cards were signed by Buford Watts , L Z Lowry, and Dave Neal.
11 The employment of Chester Harris terminated June 2, 1941; of Buford Watts, June
5, 1941; and of Clay Knox , Maich 23 , 1941. , ,
13 The authorizations of Tom Hodges and Tommie Aaron were dated August 27, and 28,
1941, respectively.
19 The 22 include the authorizations signed by Curtis Odum and J . H Pace, who by
August 27 , 1941 , had been inducted into the armed forces of the United States ; and their
names were not included among the 29 on , the respondent ' s pay roll as of that date How-
ever, because they have a reasonable expectation of returning to the employ of the respond-
ent upon their discharge fiom the armed forces , they have an interest in the rates of pay,
wages , hours of employment , and other conditions of employment of employees in the unit
found appropriate . We shall therefore include them in the unit. Irrespective of their in-
clusion in the unit, B R T. represented a majority of the respondent 's bus drivers on August
27, 1941.
14 The respondent contends that B. R. T. lost its majority subsequent to August 27, 1941.
We find no merit in this contention because, as found infra, the dissipation of B R T.'s
majority was caused not only by the respondent's refusal to bargain , but also by its fur-'
Cher unfair labor practices in soliciting employees to withdraw the authorizations they had
given B R B N L R B. v. P. Lorillard Co, 314 U. S 512; N L R B v Bradford Dyeing
4 ss'n,1 310 U. S. 318. ,
TEXAS, NEW MEXICO & OKLAHOMA COACHES, nVC. 359
decided that -the most effective vay to secure such an increase as
through B.R. T., and additional employees signed'B. R.T. authoriza=
tions late in July and early in August. On August 11, 1941; B. R.T.
was notified of the drivers' desires and was requested to send a-repre-m
sentative to Lubbock., C. H. Smith, a vice president of B. R. T., was'
authorized to proceed to Lubbock to represent the drivers.
Smith arrived in.Lubbock on August 26 and, after a consultation
with some of the drivers, determined that a majority of the bus
drivers had authorized B. R. T. to represent them for the purpose of
collective bargaining. The following day he ' had two conferences
with the respondent. In the first, which was held early in the after=
noon, the `respondeit was represented by Bowman ; at: the later con-
ference-, it was represented by Bowman and Levens. , There is conflict
in the testimony as to what took place at these meetings.
Smith testified' as follows concerning the two conferences : At the'
first he presented to Bowman a letter dated August 27, 1941, in 'which
B. R. T. claimed to" represent a majority of the bus drivers and, re-
quested recognition as exclusive bargaining agent. Attached to the
letter was a short proposed agreement, providing, in 'substance, for
recognition of B. R.' T. as the exclusive bargaining agent by the re-
spondent. Smith- told Bowman that B. R. T. represented a majority
of.the bus drivers and requested the respondent to recognize B. R. T.
Bowman inquired whether B. R. T. would demand a closed shop, and
Smith advised him that most of the contracts negotiated by B. R. T.
did not include a closed-shop provision and that if that was all that
stood between them they would have no trouble in reaching an agree-
ment. Bowman then stated that he had individual and binding
contracts with the drivers, that the drivers were satisfied, and that
the respondent would not recognize B. R. T. Bowman finally
requested time to consult with his attorney and suggested a meeting
an hour later. ' At the second conference, Smith again claimed to
represent a majority of the bus drivers and requested that the re-
spondent recognize B. R. T. as their bargaining agent: Bowman
reiterated the fact that the respondent had individual contracts
with the drivers, that the drivers were satisfied, and that the,respond-
ent would not recognize B. R. T. When Levens made similar state-
ments, Smith stated that the contracts were not lawful and
characterized them as-"yell ow-dog" contracts. - Smith then suggested
that the parties agree to have B. R. T.'s authorizations checked
against the respondent's pay roll by an agent of the Board, but Bow-
man and Levens refused to agree. When Smith inquired whether
it would make any difference in the respondent's position if he
produced his authorizations for examination by Bowman and Levens,
both stated that it would not change their position, that the contracts
I
360 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
with the drivers were binding, and that they would not recognize
B. R. T. Neither Bowman nor Levens, questioned B. R. T.'s major-
ity claim.' On cross-examination by the respondent, Smith's testi-
mony was not shaken in any material respect.
Bowman testified on direct examination that Smith called on him
on August 27, claiming to represent a majority of the bus drivers and
requesting Bowman to sign a contract. He further testified that he
did not remember what he told Smith, but thought he asked for time
to discuss the matter with Levens. At the second conference, accord-
ing to Bowman's testimony, he related what Smith had stated at the
previous meeting and thereafter Levens spoke, for the respondent.
Bowman testified that Smith thereupon repeated his claim of majority
representation among the bus drivers; that Levens requested proof
that Smith represented both B. R. T. and a majority of the drivers;
and that Smith refused to produce any authorizations, stating that
B. R. T. always refused to do so in fairness to the drivers. According
to Bowman, Smith then stated that he would take the matter before
the Board and said, as he was leaving, that he would write the re-
spondent a letter; whereupon Levens replied that the letter would be
unnecessary unless it was accompanied by proof of majority. Bow-
man testified further that, during the course of the conference, Lev-
ens mentioned the fact that the respondent had contracts with the
drivers and that it would be required to live up to them ; whereupon
Smith claimed that the contracts were not valid. On cross-examina-
tion, Bowman testified that he did not recall that Smith presented any
letter to him, and that he did not remember whether Levens told Smith
that he would bargain if proof was submitted. He testified also that,
although Levens stated that the respondent was bound by the con-
tracts, the respondent had not come to any conclusion as to whether
it would bargain, notwithstanding the contracts, because proof of ma-
jority was not submitted. Bowman testified, in addition, that he did
not think that the contracts would have prevented the respondent
from bargaining with B. R. T., as they did not cover all terms a union
would want incorporated in a contract.
Levens' testimony concerning the second conference is substantially
as follows : When he arrived at the meeting, he was advised of Smith's
claim to represent a majority of the bus drivers, whereupon he told
Smith that under the law B. R. T. would have to furnish some kind
of proof that Smith represented B. R. T. and that B. R. T. repre-
sented a majority,-before the respondent could bargain with B. R. T.
Smith replied that the authorizations were private matters between
B. R. T. and the drivers and that B. R. T. would not submit proof in
that manner. Levens then asked that proof be'furnished in some other
form, and- Smith stated that he would have the Board check his
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 361
authorizations against the-respondent's pay roll; Levens replied that
such a method would be acceptable to him. Levins testified that he did
not remember the entire conversation but did recall that Smith stated
that he would write a letter regarding the conversation and that Lev-
ens replied that such action would be unnecessary unless the letter was
accompanied by proof of majority. Levens admitted that the con-
tracts with the drivers were discussed and that Smith characterized
them as "yellow-dog" contracts having no force or effect. According
to Levens, he stated the respondent's position with respect to the con-
tracts as follows :
We have signed the contract in good faith with the men before
we heard of you,,or even knew anything about B. R. T. or any-
thing about it, and we are not in a position to violate the
contract because of the fact that we may be in a lawsuit here
with our own employees about making us live up to it, so we
will have to have something definite and know where we are
before we can talk to you. We just can't do it ' We are just not
in a lawful or legal position to do it 15 ,
Levens denied that Smith offered to submit B. R. T.'s authorizations
for a check by the respondent but admitted receipt of the letter Smith
testified he presented to Bowman. On cross-examination Levens
stated that it was his opinion that the contracts were binding until
their expiration unless changed by the "parties signing the contract";
that if B. R. T. had represented a majority, the respondent would
have bargained; and that if B. R. T."could have shown that the con-
tracts ,were unfair to the drivers, "it is possible we might have agreed
to a revision or something."
Immediately after the conference with Bowman and Levees on
August 27, Smith sent a telegram to the president of B. R. T. stating
that the respondent had individual contracts with the bus drivers
and refused to recognize B.'R. T., and that he would present the
matter to the Board.
On August 28, 1941,, Smith filed a petition for investigation and
certification of representatives at the Board's Regional Office at Fort
Worth, Texas'16 alleging that "the employer refuses to recognize
B. R. T. or to agree to a cross-check because of outstanding individual
contracts now existing pertaining' to working conditions and rates
11 Levens ' testimony that the contracts were signed before the respondent had any knowl-
edge of B. R T. Is directly contrary to his testimony to the effect that he first beard talk
about the drivers joining B. R T. about a week prior to February 19, the date of the con-
tracts. See p 3, supra
10 Smith explained at the hearing that he filed the petition on the theory that the Regional
Office might be able to settle the matter and establish B' R T as bargaining agent more
expeditiously than through ' an unfair labor practice proceeding . When the respondent
refused to consent to an election and continued its unfair labor practices as hereinafter
set forth , a charge was filed and the petition was subsequently withdrawn.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay." On the same day, Smith testified, he addressed a letter to
Bowman at Lubbock, Texas, in which he stated that his understanding
of the respondent's position at the August 27-conferences was that
it would not recognize B. R. T. as bargaining agent for the bus drivers
because of the contracts, with the individual drivers covering- rates of
pay, hours of employment, and working conditions. Smith testified
that he posted this letter by regular mail, with his return address on
the envelope; that he never received a reply; and that the letter was
not returned to him. Levens denied seeing the letter prior to the
hearing. Bowman testified that he could not remember receiving the
letter and could not say whether he had or had not received it. A
copy of the letter was furnished the Board's Regional Office at Fort,
Worth, Texas, on August 28, when the petition for investigation was
filed. We find that the letter was received by Bowman.
The Trial Examiner credited the testimony of Bowman and Leveris
and found that the respondent properly refused to bargain with
B. R. T. on August 27, 1941, because Smith declined to submit proof
that B. R. T.• represented a majority of the drivers. We are unable
to agree with the Trial Examiner's finding. We have already found
that Bowman and Levens were not reliable witnesses; that their
testimony was evasive, contradictory, and contained numerous lapses
of memory. On the other hand, Smith's testimony was forthright
and was not shaken by the respondent's long cross-examination. We
therefore credit the testimony of Smith and find that the respondent
did not question B. R. T.'s claim of majority representation, but
refused to negotiate and bargain with B. R. T. because of the Feb-
ruary 19, 1941, contracts. Immediately after the conference, and while
the discussion was still fresh in his mind, Smith sent a telegram to
B. R. T.'s president and the following day he wrote to the respondent
and filed a petition for investigation and certification of representa-
tives. His statements in all these documents support his testimony
that the respondent refused to recognize and bargain with B. R. T.
because of the contracts. In addition, Bowman and Levens both ad-
mitted that the contracts were discussed with Smith on August 27,
and Levers testified that the respondent thought the contracts were
binding until their expiration unless modified by the "parties signing
the contract," which did not include B. R. T. This testimony of
Levens corroborates Smith's testimony that the respondent, acting
through Bowman and Levens, took the position that the contracts
were binding and that the respondent would not therefore recognize
B.R.T.
Additional support for the above finding is found in the respond-
ent's subsequent action in refusing to agree to a consent election;
advising employees that the respondent would give them a mileage
TEXAS, NEW. MEXICO & OKLAHOMA COACHES, H C. 363
bonus if they' withdrew from B. R. T., actively soliciting drivers to
withdraw. B. R. T. ' authorizations for -the purpose of destroying
B. R. T.'s majority,'and in the respondent's unwavering position, at
all times that the contracts were binding and that nothing should or
would be done which might nullify them. There are no such sur
rounding circumstances to support the testimony of Levens and Bow-
mnan. On'the contrary, the evidence is clear that Levens and Bowman
consistently took the position that the contracts were binding and
should not be changed for their duration except by the parties signing
them.
4. The bonus and the withdrawal campaign
On September 9, 1941, Bowman and Levens went to Fort Worth
for a conference at the Board's Regional Office on the petition for in-
vestigation and certification of representatives filed by B. R. T. One
W. B. '(Bill) Price, wholesale agent for the Texas Company, who sells
the respondent all its oil, grease, and gasoline under verbal contract,
approached Nabors in Bowman's absence. According to Nabors' un-
•denied and credible testimony, Price told Nabors that "he would hate
to see the boys organize, that it would hurt his business" and that "he
was afraid that Mr. Bowman would sell out if they did." Price sug-
gested that Nabors 'arrange a meeting of the drivers., With the
permission of Carpenter, Nabors accordingly scheduled a meeting to be
held in one of the respondent's offices. About 15 drivers attended
the meeting. According to the testimony of Dave Neal, Price told
the drivers that he wanted them to "get quieted down" and that he
thought he could get them an increase in wages if they agreed on what
they wanted. Price advised the drivers that from his conversation
with Bowman he thought he could get them 1/4 cent more per mile
if they, "would be satisfied with that and drop the union." Price
explained to the meeting that he feared that Bowman would sell out
if the drivers "kept in an uproar" and that in such event he would
lose his business. The drivers voted to request an increase of 1 cent
per mile, after which the meeting broke, up. The following evening
a second meeting was held which was likewise attended by Price and
a- large number of drivers. Neal testified that substantially the same
discussion took place at the second meeting as had occurred the
preceding evening except that the drivers voted to reduce their demand
to '1/z cent per mile.
.After the second meeting had ended and most of the drivers and
Price had left, Bowman returned from Fort Worth and stopped at
the bus terminal. Upon seeing a few of the bus drivers in the room
where the meeting had been held, he entered and had a discussion
with them. 'Percy Q. (Dick) Neal, a driver, testified that Bowman'
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told the drivers that the Labor Board had "raised a little hell with
him," that he wanted to give the drivers an ;increase but that the
drivers were trying to tear up the contracts, and that he would not
give them an increase if they intended to abrogate the, contracts
as he was going.to hold them to the contracts for their term. Accord-
ing to Neal, Bowman" also said, "if we went on with the union, he
would not give us a raise; he wasn't going to give us a raise, but as
the meeting broke up Bowman said that he would give us a raise
"if we dropped everything and did not try to break the contracts."
Driver Nabors, who was also present, testified that Bowman. said,
"If the union did not go through and was dropped; he would give
us 1/2 cent.",
Bowman admitted attending, the latter part' of the meeting but
denied prior knowledge of Price's activities or requesting Price to
hold such a ' meeting. Bowman testified that he had told Price- at
one time that he would like to get out of the bus business and buy a
ranch because there were too many worries connected with the bus
business. Bowman further testified that he told the drivers that
he would, like to give' them an increase, but that he did not want to.
do so if it would void the contracts. Bowman denied telling the
drivers that an increase would be contingent on -withdrawing from
the Union. Price admitted attending the meeting and-testified that
he told the drivers that Bowman had shown him the respondent's
books and said that he would like to give,the drivers an increase if
such action were possible under the contracts. Price testified that
he told the drivers at the meeting that Bowman would grant a 1/4
cent per mile increase and advised the drivers that his interest was
purely selfish as he feared that Bowman might sell his business if
there was continued unrest and turmoil among 'the drivers. Price
denied saying that an increase would be contingent on withdrawing
from RR T. and testified that he reached the conclusion that-Bow- -
man might sell his business .because on one occasion Bowman stated
that he would like to sell and buy a ranch. Price testified that he
thought that if this,happene'd one of the larger bus companies would
purchase Bowman's interest and he would lose his business.
Dave Neal, a driver, testified that, a day or two lathr,.Bowman
summoned him to "his office and asked what the drivers wanted;
Neal told him that the drivers wanted an increase of 1/2 cent per mile.,
Bowman advised Neal that such action might cause trouble for him
with the Labor Board but, that he would consult his attorney. A
few days later, Bowman 'again summoned Neal to his office and stated,
according to Neal's testimony, that he could not grant a raise in
salary, but that he could give the drivers a bonus of 1/2 cent per mile
"if he could.get the drivers That had signed these [B. R. T.]. authori-
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 365,
zations to send a telegram down to Fort Worth and withdraw that."
Dave Neal agreed to talk to the drivers about it. Driver King testi-
fied that Dave Neal spoke to him at the time-and said, "The boss said
he would give us a l/2 cent raise if we would recall our applications
from the union." Dave Neal testified that he also, spoke to other
drivers who told him that they did not want to withdraw their
B. R. T. authorizations because they feared that B. R. T. would
"black ball" them for running out, and that they preferred an elec-
tion. Neal testified further that he reported to Bowman that the
drivers did not want to send a telegram as suggested by Bowman,
but would rather have an election, and, if he agreed to an election,
Neal thought that most of the drivers would take the 1/2-cent bonus
and vote the union out. According to Neal, Bowman said that he
would pay the bonus if the drivers voted the union out. Subse-
quently, Bowman told Neal that he would agree to an election and
pay the bonus. The bonus was paid September 16 for the period
starting September 1, 1941.
Bowman admitted having had discussions with Dave Neal at about
this time, but denied saying that' the bonus would be contingent upon
withdrawing from B. R. T. or referring in any way to withdrawing
from B. R. T. He did not deny Neal's testimony that he had said
that the bonus would be paid if the drivers voted the union out or that
he was going to pay the bonus and agree to an election. As pointed
out above, Price also denied saying that the increase would be con-
tingent on withdrawing from B. R. T. The Trial Examiner did not
credit these,denials and found that the statements were made. We
have already found that Bowman was not a reliable witness, and on
the basis of the testimony and other material circumstances, we find
that the drivers were told by Bowman and Price that the increase or
bonus was contingent on the drivers' withdrawing from B. R. T. The
respondent'had knowledge of Price's activities, as Carpenter gave his
permission to hold the meeting on the respondent's property. In addi-
tion, Bowman was present and spoke to some of the employees at the
end of the second meeting and made statements similar to Price's as
to the respondent's desire to give the drivers an increase provided it
did not interfere with the contracts and B. R. T. was dropped. In
the light of these facts, and Bowman's previous discussion with Price
concerning granting the drivers an increase, as well as Price's business
connections with the respondent, we find that Price represented Bow-
man in discussing an increase with the drivers, and that the respondent
is therefore responsible for Price's activities.
The Trial Examiner found that the bonus resulted from collective
bargaining between the respondent and the drivers acting as a group-
'We think this finding is contrary to,the evidence. The evidence here-
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
tofore set forth clearly indicates that the respondent unilaterally initi-
ated the bonus. Levens testified that while he asked three or four
employees' whether they desired a bonus each pay day or one at
Christmas, he did not talk to the drivers' committee because he could
not see where the bargaining agent was concerned when the respondent
was making a present to its employees, and that it was no concern
of the committee because nothing was being taken away froin the
drivers. The only other discussion between the respondent and any
of the drivers concerning the bonus were Bowman's offers to grant such
an increase in pay provided the drivers withdrew their B. R. T.
authorizations or voted against B. R. T. in an election. This conduct
of the respondent is directly opposed to collective bargaining and by
it the respondent attempted to coerce employees to withdraw from
B. R. T. We find that the bonus was offered and paid by the respond-
ent as part of a plan to secure the employees' repudiation of B. R. T.
When the drivers did not take immediate steps to withdraw their
B. R. T. authorizations, the respondent entered into a campaign to
solicit withdrawals from the drivers. Sixteen letters of withdrawal
from B. R. T. are in evidence., Nabors wrote 2 letters of withdrawal
dated October 8, 1941, and October 14, 1941, respectively. Two of the
letters are undated and one, signed by Pace, is dated October 25, 1941.
Pace had been inducted into the armed forces of the United States
in the spring of 1941, and he signed the letter of withdrawal thereafter.
The remaining 11 letters are dated between October 12 and 16, 1941.
All'the letters-with the exception of the letter of Pace and the letter
of Nabors, dated October 8, 1941, cane into the possession of Zimmer-
man, who had herself solicited some drivers-to sign and who had
received the remaining letters from Carpenter and from the individuals
who signed. Levins testified that Zimmerman sought his advice as
to what disposition should be made of the letters and that he instructed
her to send them to Smith by registered mail. Levens testified further
that at the same time and on his instruction, copies of the letters were
certified to be true and- correct by one Jean Partain, a notary public
and secretary to Levens. The certified copies were then sent with a
covering letter by Levees to the Board's Regional Director at Fort
Worth. The earliest of the 14 letters is dated October 8, 1941, and was
written by Nabors, who testified that no one suggested that he with-
draw his authorization. When asked why he had taken this action, he
testified, "Well, we went through all this other and I thought we were
through with it as well as I remember. That is all. I didn't think
there was any more to it. 'I thought it was all over with."
N. M. Lowery wrote a withdrawal letter on October 12. He tes-
tified that the letter was the result of the following conversation
he had with Bowman: A copy of a letter addressed to the Board's
T'EXAS5 NEW MEXICO & OKLAHOMA COACHES, 'INC. 367
Regional Director at Fort Worth, transmitting Lowery's B. R. T.
authorization, 'found its way to Bowman, and Lowery went to see
Bowman about it. After Bowman stated that he thought the letter
had-been sent to create trouble between Bowman and Lowery, the
latter said that he would have his B. R. T. authorization returned.
Bowman suggested that he might send -a telegram or a letter and
have it returned. Lowery testified that he determined to withdraw
his authorization while talking to Bowman and that Bowman told
him that one of the other drivers wanted to withdraw his authoriza-
tion, but that Bowman did not mention any names.' Bowman gave
Lowery a piece, of paper and assisted in the composition of the
withdrawal letter to the extent of suggesting a few words. Bowman
admitted having a conversation with Lowery and on cross-examina-
tion admitted that, Lowery wrote the withdrawal letter in his
presence.
The withdrawal letter of Al Owens is undated. Owens testified
that he wrote it in October without knowledge at the time that anyone
else had withdrawn. In view of Bowman's reference when talking to
N. M. Lowery, on October 12, 1941, it was probably written shortly
prior thereto. He testified further that he wrote the withdrawal
under these circumstances : Owens had gone to Bowman to inquire
about a rumor that-Owens 'was considered the leader and organizer
of B. R. T. Bowman stated that information had come to him that
Owens was the instigator of B. R. T. and had been offered $200 to.
organize the bus drivers. When Owens denied this, Bowman asked
him if he had a mail box at Odessa, Texas, for the purpose of receiv-
ing B. R. T. mail. Bowman also stated, "I can get all the men I want
after this rearmament program is over for about $50 a month . . ."
and that "The ones that was the most loyal was the ones he could do
the most" for." Shortly after this conversation, Owens told Bowman
that he was going to' withdraw from B. It. T. to prove to Bowman
that he was not the leader. Bowman handed him a piece of paper on
which to write his withdrawal. At this point, Levens came into the
office and was told by Owens that he desired to withdraw from B. It.
T. Levens testified that he told Owens "I don't mind writing the
letter if you tell' me what you want to say" and that he typed the
letter which was worded jointly by himself and Owens. Bowman did
not deny the above testimony of Owens, saying that he did not
remember,exactly what was said.' We credit the testimony of Owens
and find • that' the conversation took place substantially as testified
to by Owens. '
" Since ',Bowman had no knowledge 'of Nabors ' letter , it seems clear that the reference
was to Al Owens. -
368 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'A letter "signed by Mullins, dated October 13, was, according to
Mullins' uncontradicted testimony, prepared at Mullins' request by
Carpenter and put in an envelope and sealed, by Mullins, who pur- '
'chased a stamp and left the letter with Carpenter for mailing, Ti
was included; among' the 14letters,sent to, Smith from the respondent's
office.
- Nabors, according to his undenied and credible` testimony, signed
a second letter on October 14, when a typed form previously prepared
was brought to his home by Zimmerman. She assured him that
"There were quite 'a few sending' in after' them." Zimmerman also
aided Tom Hodges on October ' 14 in withdrawing from B. R. T.,
Hodges' undenied testimony was as follows : _ ,
Well, I just heard that some of the boys was withdrawing their
applications, and I was in favor of it all the time, anyway and
I asked Miss Zimmerman if she would write me a letter. '
Hodges' further undenied and credible testimony is. that Zimmerman
prepared the letter and a carbon copy which, at her suggestion, Hodges
also signed.
Carpenter, superintendent of drivers, was directly connected with
the preparation of the eight remaining letters. The letters differ
in phraseology but agree in announcing that the signer desires to with-
draw his authorization from B. R. T. Most of these letters, according
to Carpenter's own admission, were solicited and typed by Carpenter;
after having been signed by-the individuals, they were left with Car-
penter and later turned over to Zimmerman.'' The evidence is clear
that, in most instances Carpenter took the initiative in calling. the
drivers,in and suggesting that they write withdrawal letters. Car-
penter admitted that in many instances he advised individual drivers
that other drivers had sent in letters of withdrawal. Although some
drivers testified that they signed the withdrawal of their own free
will, others testified that they would not have signed had Carpenter
not brought up the subject. -
The procedure in the case of two relatively new drivers, -Terral
and King, is highly, significant and will be set forth in some detail.
Terral's service as a driver dates from August 1, 1941. Ile'testified
that Carpenter, "his boss," called him in and told him, that some of
the older drivers were sending in withdrawals and that, as Terral
was one of the new drivers, Carpenter wanted him to know about it..
Terral had no prior knowledge of such action by the drivers. Terral
further testified' regarding Carpenter's suggestion as follows:
3a The ,ndi^ic uals concerned were Jack Bennett , John S. ( Johnny ) Green, Earl L. (Buddy)
Hatton , L Z Lowry , Terral , King , Kirby Stroud and Andrew T. (Andy ) Moore. Terral
signed "L H Terrell" as his name was carried on the pay roll. '
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 369'
He said he didn't know whether I had made application for it
or not, but that was a,privilege. He didn't want some of us new
drivers holding the sack and the older ones all.asking for a
withdrawal.19
Terral's testimony as to the effect of Carpenter's suggestion was as
follows : "Well, I figured I was a new driver and if the old ones who,
knowed more about it, if they was withdrawing I was willing to with-
draw too."
Driver King had been hired on January 22, 1941. Under cross-
examination by the respondent, he testified as follows concerning his
conversation with Carpenter :
Well it was possible that I wouldn't remember the exact
words . . . And all of them. However,' he asked me to come in
his office, he wanted to see me, and told me that a number of
the drivers had recalled their applications to the Brotherhood.
of Railroad Trainmen, and asked me if I had made applica-
tion to the B. R. T., and I told him I had and he told me that
I had made progress with the company, and I believe, they
were satisfied with my way of handling, or operating the coach,
and that he would not want to see me left holding the bag.
Those are the words he said and asked if I would want to recall,
that' application, and I told him that I didn't know how to,
word a letter exactly to recall the application, and he said he
would help me if I wanted him to and I asked him to type the
letter and I signed it.
According to King's further testimony, Carpenter also told King
that four or five drivers had withdrawn; Carpenter thereupon secured
King's signature to a letter, dated October 15, 1941, withdrawing his
authorization from B. R. T.
Stroud, a driver of 6 years' service, testified as follows concerning
his withdrawal : On October 14, C. M. Owens," the respondent's traffic
manager, rode with him to the bus terminal from the shop. Owens
advised Stroud that some of the drivers had signed letters withdraw-
ing their B. R. T. authorizations and told Stroud he would like to.
see him sign a withdrawal letter so that he would be "100 percent with
the Company." Stroud was busy at the time and did not give Owens
a direct answer. The next day, Owens sent Stroud to Carpenter, who
told Stroud that some of the drivers had sent letters withdrawing
30 Carpenter denied making any statement similar to this. Since King, who was also a,
new driver, testified, as set forth below, that Carpenter made a similar statement to him,
and after considering all the testimony , we reject the denial and credit the testimony of
Terral and Bing.
20 Owens did not appear as a witness . Stroud's testimony in this respect is uncontradicted
and we find it to be true.
504086-43-vol. 46-24
370, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their B. R. T. authorizations. Carpenter further said that he did
not know whether Stroud had signed an authorization, but if he did,
he would suggest that Stroud send a letter to withdraw it. Stroud
further testified that Carpenter's statements created in his mind "the
impression that practically all of the other boys had signed one, and
I didn't want to be left by myself." Stroud yielded to this pressure.
Carpenter typed a letter dated October 15, which was signed, together
with a copy, by Stroud.21 -
The withdrawals resulted from the activities of officials of the re-
spondent. Carpenter, superintendent of drivers, and the person the
drivers considered their immediate boss, as well as Bowman, Levens,
C. M. Owens, and Zimmerman, participated in this campaign. All
are agents of the respondent, for whose actions respondent is answer-
able. Bowman is the respondent's president, Levens is' chief counsel
and according to his-own testimony, is at the respondent's office almost
daily advising Bowman on the respondent's business and labor rela-
tions. C. M. Owens is the respondent's traffic manager and is.one of
the respondent's stockholders. Zimmerman is a confidential office em-
ployee who functions as the respondent's treasurer, paymaster, and is
the person to whom the respondent's employees go "for about every-
thing, they want." She is also one of the respondent's stockholders.
The activity of these persons in the withdrawal campaign is consistent
with Bowman's statements to the drivers that the payment of the bonus
was contingent on withdrawing from B. R. T. We therefore find that
the respondent is responsible for their activities in soliciting with-
drawals from the drivers.
5. Conclusions as to the refusal to bargain and subsequent events
The respondent's entire course of conduct establishes a fixed de-
termination against recognizing and bargaining with B. R. T. as the
representative of the bus drivers. When B. R. T. first attempted to
organize the drivers the respondent intervened and compelled them to
abandon representation by B. R. T. and accept, instead, individual
contracts of employment. We have already found that the February
19 contracts were not the result of collective bargaining but resulted
from the respondent's unfair labor practices and they are therefore!
clearly unlawful. When, despite the existence of these contracts, a'
majority of the drivers by August 27, 1941, designated B. R. T. to'
represent them, the respondent resorted to the contracts as a ground
21 At the conference at the Board' s Regional Office on September 9 concerning the petition
for certification of representatives which had been filed by B R. T , the respondent re-
quested time to consider the matter, and on September 13 advised the Regional Office that
it would not consent to an election In November 1941, after the instant charges had been
filed and the respondent had successfully completed its campaign to secure withdrawals ,
from B . R T., the respondent offered to consent to an election , but refused to'take any steps'
to dissipate the unfair labor practices in which it had engaged.
TEXAS, NEW MEXICO & OKLAHOMA- COACHES, INC. 371
for refusing to recognize and bargain with B. R. T., although the lat-
ter represented a majority in the appropriate unit., The respondent
was under a duty to bargain with B. R. T. and by its failure to do so
on August 27, 1941, it violated Section 8 (5) of the Act. Even if the
individual contracts were not the result of the respondent's unfair
labor practices, the respondent would nevertheless be obligated to bar-
gain collectively with B. R. T. as to all terms and conditions of em-
ployment, whether or not such terms and conditions were covered by
the contracts.22
But the respondent did not rely solely on the unlawful contracts
. 'as a means of evading its duty to recognize and bargain with B. R. T.
After the refusal to bargain on August 27, 1941, it embarked upon a
campaign to divest B. R. T. of its majority status. To accomplish -
this end the respondent followed tactics similar to those followed
when B. R. T. first attempted to organize in February 1941. With
the assistance of Price, the respondent offered and gave a bonus con-
ditioned upon the drivers' withdrawing from B. R. T. The respond-
ent climaxed its campaign to destroy B. R. T.'s majority by its con-
certed campaign to secure withdrawals from B. R. T. and thus the
respondent itself brought about a fulfillment of the condition it im-
posed at the time the bonus was granted.
We find that the respondent, by its refusal to recognize and bargain
with B. R. T. on August 27, 1941, by paying the bonus in the manner
set forth above and by its solicitation of withdrawals from B. R. T.
refused to bargain with B. R. T. in violation of Section 8 (5) of the
Act. We find that the respondent by these acts interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section 11.1 above, oc-
curring in connection 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 unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we deem necessary to effectuate the
policies of the Act.
13 See Matter of J I Case and International Union, United Automobile , Aircraft and
Agricultural Implement Workers of Amersca, C . I. 0., 42 N. L. R B. 85 , and cases cited
therein.
372 ' D'E'CISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that on August. 27, 1941, and at all times there-
after, the respondent refused to bargain collectively with B. R. T. as
the exclusive representative of its employees in an appropriate unit.
We also have considered the withdrawals as inoperative in determin-
ing whether B. R. T. represented a majority in the appropriate unit
subsequent to August 27, 1941. We have also considered the motion
to intervene filed by 37 drivers on October 19, 1942, in which the
drivers stated that they did not desire to be represented by B. R. T.
At the hearing, certain drivers testified that, after they executed with-
drawals, they did not desire to be represented by B. R. T. We do not
consider the withdrawals, or the subsequent testimony, or the matter
recited in the motion as material. As we have found, the drivers did
not exercise `a free and unhampered choice in withdrawing from
B. R. T., as they were coerced by the respondent into taking that
action. Since the withdrawals were, executed as a result of the re-
spondent's unfair labor practices, they cannot operate to change the
c bargaining representative previously chosen by a majority of the bus
drivers.23 For the same reasons, the motion to intervene, which was
signed by the drivers subsequent'to the respondent's refusal to bargain
and to the other related unfair labor, practices and the testimony that
certain drivers did not desire to be represented by B. R. T. after they
had signed withdrawals, cannot be regarded as operative. More-'
over, we find that, regardless of subsequent events and the reasons
which brought them about, it is necessary, in order to effectuate the
policies of the Act, that the respondent remedy the effect of its un-
lawful refusal to bargain by bargaining now with B. R. T., which
was the duly designated representative of the bus drivers on August
27, 1941.24 We shall therefore order the ' respondent to bargain col-
lectively with B. R. T. upon request as the exclusive representative of
the, employees in the appropriate unit.
We have found that the contracts of February 19, 1941, were initiated
and relied upon by the respondent as an impediment to the exercise
by the employees .of their right to form, join, or assist labor organiza-
tions and to engage in concerted activities for their mutual aid and
protection and were used as 'a device to prevent collective bargaining.
To restore the status quo and, to free the drivers from the restraint
and interference resulting from the imposition upon them of these
illegal contracts, we shall order the respondent to cease giving effect to
the contracts and the supplement, or to any modification, continuation;
extension, or renewal thereof, or any similar form of contracts for any
period subsequent to the date of this Decision, and to give to each
employee who signed the contracts of February 19, 1941, notice in
23 N. L R B . v. Bradford Dyeing Assn, 310 U . S 318 ; N. L. R. B. v. Dixie Motor Coach
Corp, , 128 F. ( 2d) 201 (C C A 5) modifying and enforcing 25 N. L . R. B. 869.
24 N. L R B. v. P. Lorillard Co., 314 U. S. 512.
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC. 373
writing that such contracts will not in any manner be enforced or
attempted to be enforced, and that such discontinuance of the con-,
tracts is without prejudice to the assertion of any legal rights the
employees may, have acquired under such contracts.25 We shall further
order that the respondent post notices to the same effect 'at appro-
priate places in its- offices and terminals.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1: Brotherhood of Railroad Trainmen is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. The respondent's bus drivers at all times material herein consti-
tuted and now constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
' 3. Brotherhood of Railroad Trainmen was at all times material
herein and now is the exclusive representative of all employees in such
-unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with Brotherhood of Railroad
Trainmen as the exclusive representative of all its employees in such
unit the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act. r
-5. By interfering with, restraining, and coercing its employees
in the exercise of the 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 (1) of the Act.
6., The aforesaid - unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) ' and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
.the National Labor Relations Board hereby orders that the respondent,
Texas, New-Mexico & Oklahoma Coaches, Inc., Lubbock, Texas, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Railroad
Trainmen as the exclusive representative of all its bus drivers;
,(b) Giving effect to the - contracts of February 19, 1941, and the
supplement to the contracts dated March 25, 1941, or any modification,
continuation, extension, or renewal thereof, or entering into any sim-
21 See National Licorice Company v . N. L. R. B., 309 U. S. 350; N.- L R' B v. Superior
Tanning Company, 117 F. (2d) 881
(
C: C. A. 7 ), cert. den. 313 ,U. S. 559; N. L. R. B. V.
Stone et al ., 125 F. (2d) 752 (C. C. A. 7) cert. den. Oct. 12, 1942.
374 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ilar form of contract with its employees for any, period ,subsequent
to the date of this Decision, without, prejudice, however,, to' the,asser-
tion by its employees of any legal rights they may have acquired'
under such contracts;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes-of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which the Board,finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Brotherhood of Rail-
road Trainmen as the exclusive representative of the respondent's
bus drivers, with respect to rates of pay, wages, hours of employment,
and other terms and conditions` of employment ; -
(b) Notify in writing each employee who signed the contracts, of_
February 19, 1941, and the supplement to such contracts, or any modi-
fication, continuation, extension, or renewal thereof, or any similar
form of contract for any period subsequent to the date of this Decision;
that such contracts will not in any manner be enforced or attempted
to be enforced, and that such discontinuanceof the contracts is without
prejudice to the assertion of any legal rights the employees may have
acquired thereunder;
(c) Post immediately in conspicuous places at its terminal at
Lubbock, Texas, and at such other places as may be necessary to insure
access to them by all drivers and maintain-for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating (1) that the respondent will not engage in- the
conduct from which it is ordered to cease and desist in paragraphs 1
(a), (b), and (c) of this Order; (2) that the respondent will take
the affirmative action set forth in paragraphs 2-(a) and (b) of this
Order; and (3) that the contracts of February 19, 1941, and the sup-
plement to such contracts or any modification, continuation, extension,,
or renewal thereof, or any similar form of contract for any period
subsequent to the date of this Decision will not in any-manner be
enforced or attempted to be enforced and that-such discontinuance
of the contracts is- without prejudice to the assertion of any legal
rights the employees may have acquired thereunder;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith. - ,
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Order.