Wentworth Bus Lines, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1945

64 N.L.R.B. 65 (N.L.R.B. 1945)

In the Matter Of WENTWORTH Bus LINES, INC. and DIVISION 1340,
AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND
MOTOR COACH EMPLOYEES or AMERICA (AFL)
Case No. R-5769 (1-B-1519) .Decided October 11, 1945
Messrs. Samuel G. Zack and Robert E. Greene, both of Boston,
Mass., for the Board.
Mr. Stanley M. Burns, of Dover, N. H., for the Company.
Messrs. Joseph A. Padway, Justus R. Moll, and E. E. Oliver, all of
Washington, D. C., and Mr. O. ' David Ziinring, of Chicago, Ill., for
the Union.
Mr. Glenn L. Moller, of counsel to the Board.
OPINION AND ORDER DENYING MOTION'
Upon a pleading which is herein treated as a motion to withdraw
a certification, filed by Wentworth Bus Lines, Inc., hereinafter called
the. Company, raising certain issues with respect to the continued
existence and majority status of Division 1340, Amalgamated Associ-
ation of Street, Electric Railway and Motor Coach Employees of
America (AFL), hereinafter called the Union, the National• Labor
Relations Board, hereinafter called the Board, issued an Order Di-
recting Hearing on the issues raised by said motion. Thereafter, upon
due' notice, a hearing was conducted before George Bokat, a duly
designated Trial Examiner, at Dover, New Hampshire, on August
23 and 24, 1945. The Company and the Union appeared and par-
ticipated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded full opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
Chronology of Events: On September 1, 1943, an election was con-
ducted under the supervision of the Board among the employees of
the Compahy, in an appropriate bargaining unit consisting of all bus
drivers and mechanics in the Company's employ. The results of the
64 N. L. R. B, No. 13.
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election were 15 votes in favor of the Union, and 12 against the Union.'
,On September -,17, 1943, the Board certified the Union as the exclusive
bargaining agent of the employees in the aforesaid unit.
The Company and the Union began negotiations immediately Ilnd
by October 28, 1943, had reached an -impasse on virtually every issue
involved . On-that date the dispute was certified to-the Regional War
Labor Board. On November 16, 1943; the parties agreed , in:writing,
that an arbitrator should be appointed by the Regional War Labor
Board and that said arbitrator"shall hear the issues, and his deter-
mination thereof shall be accepted by the parties as final and binding,
'subject to the approval of the said Regional War-Labor Board of such
issues as may require Board approval, before the award of the 'Arbi
trator becomes effective ." On December 22, 1943, the arbitrator issued
his award in the form of a contract which he immediately ' mailed'to -
the parties for execution by them. The Union promptly executed the
contract and returned it to the Regional War Labor Board. Counsel
for the Company, however, on January 6, 1944, wrote to the arbitrator
that "most of the contract is acceptable but' there are some parts of it
that should be modified before -Nwe could advise our client £o,,execute
same." On March 2; 1944, the Regional Wttr-Labor -Board issued its
Decision and Order, approving most of the,arbitrator's award, but
changing it in some respects . , The Company denies receipt of, this
Decision. On March 15, 1944, the Union requested the Regional War
Labor Board to direct the Company to comply with,the termsof the
Order. Early in April 1944, the Regional War Labor Board again
notified the parties of its Order , but referred the contract back to the
arbitrator for clarification as to the proper , date in the clause providing
for maintenance of membership with a 15-day escape period., ,On May
15, 1944, the RegionalWar Labor Board issued an Order_disposing of
a dispute concerning the clause providing'for maintenance of member-
ship. The Company thereupon appealed to the National War Labor
Board. On August, 23, 1944, that body affirmed the Order of the
Regional Board. The Company still refused to accept the decision
or to execute the contract. •
On September 26, 1944, the Company received a letter containing
what purported to be•a resolution signed by a majority of the members
of the Union voting to dissolve the Union.,' Immediately the Company
advised the Regional War Labor Board that no steps had been taken
to effect compliance with the Directive Order because it understood
that the Union had dissolved and surrendered its charter. On October
2; 1944, the 'Regional; War Labor Board issued a show cause order
demanding-,compliance:-'On October'17, the Company replied, refus-
ing to comply, alleging that the Union no longer existed and that Its'
This resolution, dated September 25, 1944 , was on plain stationery, was written in
longhand and bore the signaturesoof only four persons . It did not bear the Union's seal
c WENTWORTH..BUS LINES, INC. 67
employees did not *ant a union forced upon them. On November 29;
•1944, the National War Labor Board ordered the Company to comply
,with the order. The 'Company refused. ' On June 2, 1945, the Director
of the Office of -Economic Stabilization applied certain economic.sanc-
tions against the Company and on••June'30, 1945, the Company filed
'with this Board its petition for withdrawal and revocation, of_ the
Union's certification.' '
On or about October 16, 1944, the Company's employees signed a
petition recitingtthat they did- not want the Union to represent them.
Although the Company asserts that it has in no way been instrumental
in' dissipating the -Union's. followiing,' it is. undeniedi -that-'two of the
Company's foremen circulated this petition among the employees and
requested them to sign it.- We credit the-testimony of one of the fore-
men that this was done pursuant to instructions from. the Company's
president.' The record shows, in addition, that the Company sought
to defeat the Union by other acts and conduct. Thus, prior to the
election in, 1943, the Company's president threatened that the em-
ployees-would lose their annual bonuses and that he' would close the
business if the employees organized. A few days- after the election an
employee was discharged and told that she was being ,discharged be-
cause she had 'voted for the Union.3 Throughout the period of the
proceedings before. the War Labor Board, Wentworth repeatedly
stated,to-his employees that he would never recognize the Union.
Concleasions: The Company contends that the-Union's certifica-
tion should be revoked on the ground that the Union no longer repre-
sents a majority of the Company's employees and on the further ground
that the Union no longer has any members and is therefore defunct.
The Union, argues that .the motion should be' denied. on the grounds
that the entire proceeding-is'improper and that the Union has never
had an opportunity to demonstrate its ability to obtain for the em-
.ployees the benefits of'Collective bargaining because of prolonged
proceedings before the War Labor Board .and because of wrongful
conduct on the 'part of the Company. The Union denies that it is
defunct. V -
Upon consideration of the entire record we have decided to deny the
Company's motion. We agree with the Union's contention that it is
equitably entitled, under the doctrine of platter of Allis-Chalmers
'and similar cases ,4 to continued recognition as the statutory bargain-
2 We do not credit Wentworth ' s denial that he knew nothing about the resolution, nor
do we credit the foreman ' s testimony on the second day of the hearing in which he at-
tempted to becloud his testimony of the preceding day -
2 Although Wentworth, company president, denied that these episodes occurred, we do
not credit his 'denials and' find that `they occurred substantially as described by witnesses
LaBonte, Brennan, and Henderson
-' Matter ' of Allis -Chalmers Manufacturing Company , 50 N L R B 306 : Matter of
Aluminum Company of America; 53 N. L R B 593, Matter of Taylor Forge & Pipe Works,
5R N L R B 1375
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing agent of the employees in the appropriate unit for a further reason-
able period. It is apparent that'the Union has,never obtained for the
employees it represents -any of the benefits of collective; bargaining,
either a formal contract or other advantages of representation:, It
is equally clear that this, failure, and the consequent dissaffection of
its membership, stems from the Union's having kept its no-strike
pledge,and submitted its disputes with the Company to the orderly but
time-consuming processes of the War Labor Board. Under these cir-
cumstances we would refuse to direct an election upon the petition of
a-rival,labor organization . seeking to displace the Union as the statu-
tory bargaining,representative.5 The same considerations require de-
nial of the motion before us.
Another principle is determinative of the Company's contention that
the, Union is no longer the majority representative .of its employees
and is, indeed, defunct. The Company itself, by threats of economic
reprisal designed to defeat the Union in the election; by'the discharge
of an employee, for supporting the Union, by statements, discrediting
the Union's status as the -authorized bargaining agent;` and, finally, by
directly soliciting its employees to.repudiate the organization as their
representative, has effectively contributed to the Union's loss of mem-
bers. The instant motion appears to be the culmination of this
program. The Company, therefore, will not be heard to contend that
the Union's majority is dissipated. To hold otherwise would be to
permit the Company to profit by its own wrongful conduct and to
utilize the processes of the Board to assist it in attaining that end .G
It is true that few, if any, of the Company's employees now appear
to be active union members, and the exact status of the Union local, as
such, is in doubt.? But it does not follow that the Union is necessarily
defunct as a legal entity, still less that it cannot be reorganized, or its
representative functions assumed by the International. Upon the
record in this case; showing such determined interference by the Com-
pany with the organizational freedom of, its employees, we cannot say
that the employees, would not support the Union if they were free to
do so, without interference by the Company. There is good reason to
believe that, given a reasonable opportunity, the Union will be able to
"Matter of Montgomery Ward & Company , 60 N L R B. 574 , and cases cited in foot-
note 4, supra ; of Matter of Bolin Aluminum and Brass Corporation, 57 N L . R B 1684
s See Franks Bros. Company v. N. L. R. B., 321 U S 702 We find no support for the
Company's position in the dissenting opinion of Mr Justice Rutledge in Medo Photo Supply
Corporation v. N L. R . B., 321 U S 678 , from which the Company quotes at length in its
brief. The dissenting opinion in that case concludes that the employer had not mtertered
with the self-organization of its employees.
Such uncertainty as to the Union ' s legal status or ability to function might warrant
the direction of an election if a rival representative were petitioning to be certified, in the
Union 's stead, as the statutory bargaining agent See Matter of Evening News Associa-
tion, 58 N L R B 1392 ; Matter of Briqhtwatcr Paper Company , 54 N. L R B' 1102 ;
Matter of The Black - Clawson Company, 63 N L R B. 773, but cf Matter of Tabardrey
Manufacturing Company , 51 N. L R B. 246. .
WENTWORTH BUS LINES, INC. 69
enlist and retain the support of the employees and to fulfill its statu-
tory function.
The'Union objects to this proceeding on the ground that the Com-
pany is seeking to do indirectly what it is not permitted to do directly,
namely, petition for an investigation of representatives. " Since we
are dismissing this proceeding for the reasons already set forth, it is
unnecessary to pass upon this contention and we refrain from doing so.
ORDER
Upon the foregoing findings of fact, the National Labor Relations
Board orders that the Company's motion to revoke the Union's certifi-
catioli be, and it hereby is, denied.
MR. GERARD D. REILLY took no part in the consideration of the above
Opinion and Order Denying Motion.
$ Article III, Section 2 (b), Board Rules and Regulations permits an employer to file a
petition only where the question concerning representation arises from conflicting claims
presented by two or more labor organizations.
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