Aurora City Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1961

130 N.L.R.B. 1137 (N.L.R.B. 1961)

AURORA CITY LINES, INC . 1137
Having found that the Company laid off or discharged 28 employees between some
point on October 8 and some time on October 10, 1959 , and thereafter offered each .
of these employees reinstatement to his former position , requesting such employee
to report for work on October 23, 1959 , I shall recommend that the Company make
each of said employees whole for any loss of pay he may have suffered by reason of
the discrimination against him as found above, by payment to him of a sum of money
equal to the amount of wages he would have earned , but for said discrimination, be-
tween the time that he was laid off or discharged and October 23, 1959 ; and that the
said loss of pay be computed in accordance with the formula and method prescribed
by the Board in F . W. Woolworth Company , 90 NLRB 289 , to which the parties in
this proceeding are expressly referred.
On the basis of the foregoing findings of fact, and of the entire record in this pro-
ceeding, I make the following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all times material to the issues , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating against employees in regard to their tenure of employment,
as found above, thereby discouraging membership in the Union, the Company has
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act, as found above, the Company has engaged
in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The said unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and 2 (7) of the Act.
[Recommendations omitted from publication.]
Aurora City Lines, Inc. and Robert C. Tester. Case No. 13-CA-,
3558. Mardi 3,,1961
DECISION AND ORDER
On June 27, 1960, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor'
practices, and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report, together with supporting briefs..
Pursuant ,to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers,-,Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing 'and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the,exceptions and the briefs, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
iwe note and`correct the following inadvertent errors appearing in the Intermediate
Report : On January 3 , 1960, Stephen Carter was secretary -treasurer-elect of, and Walter
Sutherland held no office in, Local 215, Amalgamated Association of Street , Electiic Rail-
130 NLRB No. 101.
597254-61-vol. 130-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner with the following additions and
modifications.
The Respondent, an Illinois corporation, maintains its office at
Aurora, Illinois, where it engages in the operation of a local passenger
transit system by motorbus. The Respondent is a wholly owned sub-
sidiary of National City Lines, Inc., which conducts 33 other wholly
owned transit operations, 10 of which are located within the State
of Illinois and 23 of which are located in 11 States other than the
State of Illinois. In the course of its operations'during the past year,
the Respondent's gross volume of business amounted to approxi-
mately $400,000, derived almost exclusively from passenger fares. In
addition, the Respondent purchased locally materials valued at ap-
proximately $2,000, all of which originated outside the State of
Illinois.
The Respondent moved to dismiss the complaint, contending, in
effect, that apart from the purchase of materials valued at approxi-
mately $2,000, the record fails to support a finding that its operations
"affect commerce." With respect to such purchases, the Respondent
characterizes them as de mminimis. We are satisfied, however, in view
of the foregoing, that the Respondent's operations do "affect com-
merce," 2 and otherwise meet the Board's jurisdictional standards.3
Accordingly, we deny the Respondent's motion to dismiss.
1. Like the Trial Examiner, we reject the Respondent's contention
that Tester was lawfully suspended for leading a strike, movement
among the Respondent's employees. As fully set forth in the Inter-
mediate Report, the credible evidence clearly shows that Tester's entire
effort, including the circulation of a petition among Respondent's
employees, was to obtain a special union meeting. Moreover, the
credited testimony of virtually all the witnesses, including that of
Carter, called by the Respondent, reveals .that Tester did not make
any threats to pull the buses off the street. Finally, as:-set, forth in
the Intermediate Report, the credible evidence also plainly shows that
the time Superintendent Feahr suspended Tester, Feahr was well
aware that no strike was imminent, and that Tester was only seeking
a, special union meeting and was not leading or actively promoting a
strike movement.
In view of the foregoing, we are satisfied, as was the Trial Ex-
aminer, that the Respondent discriminatorily suspended Robert Tester
way and Motor Coach Employees of America , herein called the Union . Subsequently,
Sutherland was elected vice president of the Union . The foregoing errors do not affect
our conclusions.
Additionally, the Trial Examiner , in his Conclusions of Law, failed to find that the
unfair labor practices found affect commerce within the meaning of Section 2 (6) and (7)
of the Act . We so find, with respect to those unfair labor practices found herein.
$ See, e.g., Lamar Hotel, 127 NLRB 885 ; National Hotel . Company d/h/a Thomas
Jefferson Hotel, 127 NLRB 202 ; N.L.R.B . v. Suburban Lumber Company, 121 F. 2d
829, 832 (C.A. 3).
3 Charleston Transit Company, 123 NLRB 1296.
AURORA CITY LINES, INC. 1139
for engaging in protected concerted activity , namely, circulating a
petition for, and otherwise seeking, a special union meeting, and that
his suspension was violative of Section 8(a) (3) and 8(a) (1) of the
Act.4
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices violative of Section 8(a) (1) and (3) of the Act, we shall
order the Respondent to cease'and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily suspended-
Robert Tester on January 3, 1960, because he had engaged in certain
protected concerted activities, we shall order that the Respondent
offer him immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole in accordance with the
Board's remedial policies (The Chase National Bank of the City of
New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett
Lumber Company, 8 NLRB 440; F. W. Woolworth Company, 90
NLRB 289) for any loss of pay he may have suffered by reason of
the discrimination against him.
Because the character and scope of the unfair labor practices found
to have been engaged in by the Respondent go to the very heart of
the Act, we shall order the Respondent to cease and desist from in
any manner interfering with, restraining, and coercing the employees
in their rights guaranteed by Section 7 of the Act.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the-National-Labor
Relations Board hereby orders that Aurora City Lines, Inc., Aurora,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from : '
(a) Suspending, discharging, or discriminatorily refusing to rein-
state its employees, or in any other manner discriminating in 'regard
to the hire or tenure of employment or any term or condition of em-
ployment of its employees for the reason that they engaged in intra-
union or other concerted activities protected by the, Act. ;
(b) In any other manner interfering with, restraining, or coercing -
its employees in the exercise of the right of self-organization, to form
' We would make this finding even if it were assumed that Feahr had an honest belief
that Tester had made threats to pull the buses off the street, and was actively leading
and promoting a strike movement, because it is affirmatively established on the record
in this case, that Tester did not engage in such conduct . See, e . g., Rubin Bros. Footwear,
Inc., et at., 99 NLRB 610; The Cambria Clay Products Company, 106 NLRB 267, 270;
Bonnar-Vawter, Inc., 129 NLRB 127; N.L.R.B. v. Industrial Cotton Mills (Division of
J. P. Stevens Co.), 208 F . 2d '87 ( C.A. 4), cert . denied , 847 U . S. 935. Compare Kraft
Foods . Company, 108 NLRB 1164 ; New Hyden Coal Co., 108 NLRB 1145, 1148.
N.L.R .B. v. Entwistle Mfg. Co ., 210 F. 2d 532 ( C.A. 4).
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to joint or assist Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America,
Local 215, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activ-
ities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Terminate the suspension of its employee, Robert Tester, and
offer him immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole in the manner set forth
in the section of this Decision and Order entitled "The Remedy," for
any loss of pay he may have suffered by reason of the discrimination
against him.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to determine the backpay due.
(c) Post in its bus garage at Aurora, Illinois, copies of the notice
attached hereto marked "Appendix." 6 Copies of such notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof and
be maintained by it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered. by any other material.
(d) Notify the Regional Director of the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
0In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations .
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify, our employees that :
AURORA CITY LINES, INC. 1141
WE WILL NOT suspend, discharge, or discriminatorily refuse to
reinstate employees, or discriminate in any other manner in re-
gard to. hire or tenure of employment, or any term or condition
of employment of our employees, for the reason that they engaged
in intraunion or other concerted activities protected by the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Local 215,
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to our employee, Robert Tester, a busdriver
who was unlawfully suspended from his employment on January
3, 1960, immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority
or other rights and privileges, and will make him whole for any
loss of earnings he may have suffered by reason of our discrimi-
nation against him.
AURORA CITY LINES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The complaint charged the Respondent with violation of Section 8(a)(1) and (3)
of the Act. A hearing upon the charges was held by the duly designated Trial
Examiner at Aurora, Illinois, on May 9 and 10, 1960. The parties did not present
oral argument at the hearing but, subsequent thereto , they have both filed briefs.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , an Illinois corporation , maintains its office at Aurora , Illinois,
where it engages in the operation of a local passenger transit system by motorbus.
The Respondent is, a wholly owned subsidiary of National City Lines, Inc., which
conducts 33 wholly owned transit operations besides that of the Respondent, 10 of
which are located within the State of Illinois and 23 of which are located in 11
States other than the State of Illinois. In the course of its operations during the
past year , the Respondent did a gross volume of business of approximately $400,000,
1142 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
,derived almost exclusively from passenger fares, and purchased locally materials
valued at approximately $2,000, all of which originated outside the State of Illinois.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Association of Street, Electric Railway and Motor Coach Employees
of America, Local 215, hereinafter called the Union, is a labor organization within
-the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The unfair labor practices in this case appear to represent an episode in the
exercise of grassroots union democracy.
The Respondent and the Union were parties during the year 1959 to a labor agree-
ment which incorporated a no-strike clause for the life of the agreement.' Before
the close of .the year the Union duly notified the Respondent of its desire to terminate
the agreement and to negotiate a new one , and the parties participated in two nego-
tiating sessions at the Baker Hotel in St . Charles, Illinois , which were held on
December 10 and 30, 1959. Apparently the parties could not readily achieve a
meeting of the minds on the terms of a new contract , however, and while the nego-
tiations were proceeding , the terms of the existing contract were continued on a day-
to-day basis, subject to the understanding that any benefits conferred by a new
agreement would be retroactive to the date of the expiration of the old one. It is
a fair inference that an impasse must have been reached in the negotiations, for on
February 14, 1960 , the operations of the Respondent were interrupted by a strike
which lasted 45 hours. Eventually a new labor agreement was negotiated with
the Union, covering the employees of the Respondent. It was dated March 14, 1960,
and its term was for 2 years from January 1, 1960 , to and including December 31,
'1961, subject to the same no-strike and termination provisions that were applicable
to the agreement for the previous 2 years.
After the Union 's contract had expired on December 31, 1959 , there had been
-talk among the busdrivers about the negotiations for a new contract but their
questions had been left unanswered at the regular monthly meeting of the Union in
December . In the course of the talk among the busdrivers about the contract, it
was suggested that the union officials be requested to call a special meeting at which
the union members could learn what was going on. Accordingly , on January 3,
1960 , which was a Sunday, two of the Aurora City Lines busdrivers, Robert Tester
and Tom Donahue , who were talking the situation over, decided to contact another
of the busdrivers , J. B. Smithy , in order to discuss with him the idea of circulating
a petition for a special meeting with the union officials . They went to Smithy 's house
but he was not at home. Being told by his sister that he was at the house of another
busdriver by the name of Kretch , Tester and Donahue went there , and found him.
Smithy and Kretch thought that the idea of circulating a petition for a special union
meeting was a good one , and the group proceeded to prepare a petition which was
signed first by Tester and then by Smithy, Donahue , and Kretch . Only one copy of
the petition was prepared which meant that it had to be passed around for signature
from hand to hand.2
It was then about 1 p.m., and knowing of two other busdrivers who might be
induced to sign the petition, namely John and Albert Cartwright, who were brothers,
the group promoting the petition proceeded to their homes , and secured their
signatures.
In their effort to secure still further signatures to the petition , the group then
decided to proceed to Fox and Water Streets in Aurora where the busdrivers were
relieved from duty between 3:42 and 3 :57 in the afternoon. They arrived at this
point about 3 : 40 p.m. and, circulating the petition among the busdrivers there, they
secured the signatures of 10 to 12 of them . They also asked these drivers to be
at the Respondent 's bus garage at 8 o'clock that night , so that they could contact
Herb Wolfram, who was vice president of the Union and had been selected president
of the Union in December 1959, and ask the latter to designate a place and time
for holding the special meeting. The busdrivers circulating the petition believed
'Under art. 47 thereof, the agreement was to be in effect for the term beginning
January 1, 1958, to.and including December 31, 1959, and from year to year thereafter,
subject to termination by either party upon the giving of notice from 60 to 90 days prior
to the expiration of the stated term or any renewal thereof.
2 Actually, the petition consisted of a blank sheet of paper on which the busdrivers
placed their signatures, after its purpose had been explained to them. The petition con-
tained no precatory language.
AURORA CITY LINES, INC. 1143
that •,under . the bylaws of -the Union the union officers were bound to call a special
meeting if one'third of the membership signed a petition requesting such a meeting,
and so informed prospective signatories.3
The group promoting the petition then proceeded to the premises of the Lighthouse
Electric Company where they secured the signatures to the petition of two more of
the busdrivers , Stephen Carter and Walter Sutherland, who were, respectively, finan-
cial secretary and president of the Union .4 As the group felt that they had secured
all the signatures which were then obtainable , they dispersed but agreed to reassemble
that evening at the bus garage.
Tester arrived at the garage that evening and secured signatures to the petitions
of two of the Respondent 's mechanics , Mel Enman and Bill Mills . As some other
drivers came into the garage , they , too, signed the petition . After most of the group
had congregated , it was suggested that Tester telephone to Freddie Leonard, who was
on the union negotiating committee . When Tester called Leonard , the latter dis-
closed that "he had nothing more to do with it ," and suggested that Tester call Herb
Wolfram . But, when Tester telephoned to Wolfram, and told the latter that the
busdrivers had 26 signatures to a petition for a special union meeting, and requested
that Wolfram make arrangements for calling such a meeting , he was emphatically
rebuffed.
According to 'the testimony of Tester , when he told Wolfram that "The fellows
are a little in the dark as to what has been going on at the negotiations," and
asked for information , Wolfram told him that it was none of his business , called
him "a wise punk," and threatened : "I am going to have your job in the morning."
Wolfram, who testified on behalf of the Respondent , admitted that he declined to
call a meeting but denied the epithet and threat attributed to him. According to
him, Tester threatened that if he did not call a meeting he would pull the buses
off the street , and that he then may have remarked that if Tester did so he might
be out of a job in the morning . Tester also testified that he had only one telephone
conversation with Wolfram but the latter testified that he had had two telephone
conversations with Tester . Tester emphatically denied that he had made' any
threat to Wolfram or anyone else to pull the buses off the street . I credit Tester's
'rather than Wolfram's testimony . Tester's version is supported strongly by the
testimony of J. B . Smithy , and in a lesser degree by the testimony of Donahue, both
of whom were with him within earshot when Tester was talking to Wolfram over
the telephone .5 It was Smithy who made the second telephone call to Wolfram,
and mentioned the '.possibility that the buses might be pulled off the street , a possi-
bility that was discussed generally among the busdrivers but was never mentioned
-by Tester to Wolfram. Apart from the corroboration of Tester's testimony by
that of the two other busdrivers , Wolfram showed himself to be a confused and
contradictory witness on whose recollections little reliance can be placed. Thus,
although he had testified that he had received six to eight telephone calls that
evening from the busdrivers , and that none of them had said anything about pulling
the buses . off the street, Wolfram replied in the affirmative when asked whether
'Tester 's -telephone calls had been included among these six to eight calls!
Shortly after Tester 's telephone conversation with Wolfram , R. H. Feahr , who was
-superintendent of the Respondent 's bus operations , came into the drivers' room of
the garage; where the busdrivers were congregated , and told all of them but Tester
to leave . After 'they had done so, Feahr instructed Tester to' come into his office.
When Tester entered Feahr 's office, he found there Wilbert Aymar , the Respond-
ent's maintenance superintendent , who remained there throughout the ensuing inter-
'view between Feahr and Tester . At the conclusion of this interview , Feahr in-
definitely suspended Tester on the ground that he was threatening to pull the buses
off the street . The testimony of Tester and Feahr with respect to what occurred at
their interview is markedly divergent on important points.
Actually , the constitution of the Union , which is in evidence as Respondent 's Exhibit
No..3; contained no such explicit provision.
* In addition to working as busdrivers for the Respondent , Carter and Sutherland were
'also part-time employees-of the Lighthouse Electric Company.
g Respondent's counsel argues that the corroborating testimony of Smithy and Donahue
is- "hardly 'credible" because the busdrivers in the room were all talking . But Tester's
conversation with Wolfram was in loud and angry tones , and Tester waved to the bus-
drivers to keep quiet while he was engaged in the conversation . Moreover , both Smithy
and Donahue were familiar with Wolfram's voice. Tester did, not, as Respondent's
counsel also argues , contradict himself by first testifying that his conversation with
Wolfram was in a normal conversational tone. ' Tester gave this testimony with reference
to his conversation with Freddie Leonard.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Tester , Feahr first closed the door of his office, and Aymar sat
down . Feahr , he testified , then pulled out a form 91 ; which was a resignation form,
and asked him to sign it. Tester refused to sign the form on the ground that he
had done nothing wrong. Feahr then told him that he had information that he
"was going to pull the buses off the street ." Tester then explained that he was only
trying to get a union meeting. But Feahr then told him that if he would resign
quietly, he would give him a good recommendation . If he did not resign, he
could take a suspension . This, Feahr pointed out , would do him no good, for he
would not get any backing from the Union , and he . might be prosecuted for vio-
lation of the Taft-Hartley Act or for breach of contract . Tester replied that the
charge that he was fomenting a strike was completely false , and that the contract
between the Respondent and the Union had expired . Nevertheless ,' Aymar joined
in the conversation at this point , and remarked that they would have a lot of fun
the next few weeks "watching people spend their money uselessly in trying to keep
themselves out of jail ." Aymar also added that the National City Lines had more
money than Tester , and that by the time he was through he would be sorry that he
had not resigned . Feahr then observed that if Tester did not resign he would
never be able to support his wife and family. Thereupon Tester asked if he could
think it over until the following morning, and Feahr agreed to this. Tester returned
to Feahr's office the following morning when Parks, the dispatcher , was present,
and told Feahr that he had talked it over with his wife, and that since he had done
nothing wrong , he had decided to take the suspension , and talk to the union com-
mittee about the situation . Feahr told him that he had 5 days within which to file
his grievance but that he planned to make the charges stick . Tester then turned in
his changer , badge , and fund , and left after obtaining a receipt from Feahr.
Feahr explicitly denied that he showed Tester a resignation form and asked him
to resign . In essence , his testimony on direct examination was that , having received
information that Tester was engaged in an effort to take the buses off the street, he
suspended him. He testified that while he was at home Sunday evening , he received
a telephone call about 7 : 15 p.m . from James Back , one of the busdrivers , who told
him that "there was a group of men getting together that were anxious to get a
petition signed of some sort, and that there was a meeting going to be held, and
that one had been in process already. And that this meeting was going to be
determined whether or not the buses were to be taken og the street." [Emphasis
supplied .] After receiving similar information from another busdriver, Fred
Valdez, he telephoned Wolfram to find out if he had authorized a strike . Wolfram
denied this but told him that Tester had been trying to get a union meeting, and
threatened to pull the buses off the street if he were unsuccessful . Thereupon Feahr
contacted Aymar, and asked him to check the garage , while Feahr contacted the
drivers of the seven buses that were operating that night and told them that a strike
was not authorized and that they were to continue working. Feahr then went to
the drivers' room at the garage and asked if there was some kind of a meeting going
on, and the drivers told him that "they wanted to find out what is.. . . what was
cooking, and this was the only way they could do it ." It was then that Feahr told
the busdrivers to clear out , and called Tester into his office.
It might be supposed that Aymar, who was present during the whole of the inter-
view between Feahr and Tester , would be in a position to clear up any discrepancies
in their testimony . He was, to be sure, called as a witness on behalf of the Re-
spondent , and he testified indeed that he was asked by Feahr to be present as a
witness to the interview which he proposed to have with Tester . However, Aymar
lacked , apparently , the prime qualification for fulfilling this role , which was, of
course, a fairly good memory. He testified : "What little I may have said , I don't
recollect , sir." Thus, he was in no position to deny with any degree of positiveness
that he had told Tester that the National City Lines had more money than he had.
As for supporting any of Feahr 's denials of statements attributed to him by Tester,
such as that he was asked by Feahr to resign ,6 he was not specifically requested to do
so at any point in his direct examination-he was asked only in the most general
6In itself, it makes no difference whether Feahr asked Tester to resign before suspend-
ing him indefinitely. But insofar as this question has a -bearing on Feahr's ccredibility,
I resolve it in favor of Tester. Feahr's powers of recollection, although somewhat
superior to Aymar's, were none too good. It was a natural move under the circumstances
for Feahr to ask Tester to resign , for it would save him the embarrassment of having to
suspend him. If Tester had not had an alternative to consider, he would have turned in
his paraphernalia forthwith, and there would have been no necessity for him to return
the following morning. He would have had an alternative only if he had been requested
to resign.
AURORA CITY LINES, INC . 1145
terms to . state what had transpired. Indeed, Aymar made only one remark which has
any real significance in judging the extent of Feahr's knowledge of what the drivers
were up to. Thus, he testified that, when Feahr and he went into the drivers' room in
the garage, and Feahr asked the drivers what was going on, "Well, they didn't give
too much of a clear answer."
The Respondent called three witnesses in an effort to support Feahr's contention
that he suspended Tester because he had been informed that he was the ringleader
in the attempt to pull the buses off the street. In addition to Herbert Wolfram,'
whose testimony was so contradictory as to impair his credit as a witness, the wit-
nesses were Stephen Carter, the financial secretary of the Union who had signed
the petition at the Lighthouse Electric Company premises, and James Back, another
one of the busdrivers who had signed the petition.
Carter testified that when he was approached at the Lighthouse Electric Com-
pany premises the talk was all about signing the petition to get a union meeting.
"That was all that was discussed at that time," he testified. Carter was also present
at the garage meeting at 8 o'clock that night but he was occupied chiefly in making
telephone calls to Leonard and Wolfram in a futile effort to induce them to call a
special union meeting. Carter did testify that at the garage meeting he heard
"someone" say that if a special union meeting was not held "the buses would be
in the garage at 10 o'clock." However, he failed to identify this "someone," and
there is no evidence that he ever reported this remark to Feahr. Carter's evidence
does not, therefore, help the Respondent.
It will be recalled that Feahr testified that it was James Back who told him that
the busdrivers were meeting to determine whether the buses would be pulled off
the street. But, significantly, Back although called as a witness by the Respondent,
testified that he had not told Feahr that Tester had said anything about pulling the
buses off the street. However, he did testify also that when about 6 o'clock in the
evening he came to the bus garage after receiving a telephone call from Smithy
and signed the petition for a special union meeting, he heard "someone," whom at
a later point in his testimony he identified as Tester, say that the buses would be
taken off at 10 o'clock if Wolfram and the committee would not come down. Back
further testified that after talking to Smithy and Tester he telephoned to Feahr to
tell him that he had signed the petition. There are a number of good reasons for
rejecting Back's testimony that Tester threatened to pull the buses off the street. In
the first place, it is hardly credible that Back would have called Feahr merely for
the purpose of telling the superintendent that he had signed a petition for a union
meeting. Having called the superintendent to report the activities of a fellow
employee, he would hardly have refrained from mentioning the disturbing fact that
Tester was threatening to pull the buses off the street if, indeed, Tester was making
such a threat. In the second place, since' neither Tester nor Smithy had yet tele-
phoned to Wolfram at the time Back was in the garage-these telephone calls
'were not made until about 11/2 hours later-they did not know whether Wolfram
would decline to call a special meeting, and neither of them would, therefore,.have
any reason at that time to threaten to pull the 'buses off the street. In the third
place, Back's cross-examination showed quite plainly that he had only the very
vaguest recollections about the event as to which he had been testifying. Although
there were a considerable number of the busdrivers at the garage at 6 o'clock in the
evening he could not name a single one of them, except Smithy, and, although there
was a lot of talking, the only remark which he could remember was the one about
pulling the buses off the street, namely the remark that he attributed to Tester. He
conceded, moreover, that the remark was not made directly to him, and that he was
not paying much attention to what was going on because he had been sick for some
time, and was not feeling very well.
It is my conclusion that Tester did not make any threat to pull the buses off the
street if the Union refused to call a special meeting. While it is true that after
Wolfram refused to do so, there was some talk among the other busdrivers about
the possibility that his refusal might lead to the pulling of the buses off the street-
and the discussion of such a possibility among the busdrivers themselves must be
distinguished from a direct threat to strike or to the making of a decision to strike
which was communicated either to the Respondent or the Union-I find no ade-
quate basis for rejecting Tester's emphatic denial that he made any threats. If
there is one. conclusion that is inescapable from the testimony of virtually all the
witnesses, it is that Tester's only purpose was to aid in securing signatures to a
petition for a special union meeting.
It is also my conclusion that Feahr did not act in good faith in suspending Tester
indefinitely. He took this action not because he really believed that a strike which
Tester was promoting was imminent but because he either considered him to be the
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ringleader in the circulation of the petition,7 or decided to make an example .of him:
in order to accommodate Wolfram. His action was not justified by any admission
of misconduct made to him by Tester when he questioned him, and it was based
entirely on hearsay, or double hearsay.8 Moreover, just before he talked to Tester,.
he had been told by the busdrivers that all they wanted to know was "what was
cooking." In addition, he had just been told by Wolfram that the.. Union had. not
authorized any strike, and throughout the history of the Respondent' s operations
there had never been a wildcat strike. In the circumstances , he was showing, in-
deed, an undue degree of apprehension.
It is clear that, in circulating the petition for a special union meeting, the em-
ployees of the Respondent were engaged in a concerted activity protected by the.
Act. See El Mundo Broadcasting Corporation, 108 NLRB 1270; Hearst Publishing
Company, Inc., 113 NLRB 384; Cooper Alloy Corporation (Aircraft Division),
120 NLRB 586; N.L.R.B. v. C. Nelson Manufacturing Company, 120 F. 2d 444
(CA. 8); N.L.R.B. v. Schwartz, d/b/a Lion Brand Manufacturing Company, 146
F. 2d 773 (C.A. 5); N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F.
2d 983 (C.A. 7); N.L.R.B. v. Nu-Car Carriers, Inc., 189 F. 2d 756 (C.A. 3).
IV. THE RESPONDENT'S AFFIRMATIVE DEFENSE
The Respondent pleads as an affirmative defense that Tester was lawfully dis-
charged as one of the leaders who promoted a wildcat strike. This plea is based on,
the theory that the no-strike clause of the agreement of January 1, 1958, was still'
in effect on January 3, 1960, and prohibited any strike, or threat to strike. The
plea is also based on the theory that a strike against the Respondent, which was
operating a public transit system, would have been unlawful under the law of the
State of Illinois.
As I have found that the purpose of the employees who circulated the petition
was solely to secure a special union meeting at which they could learn about the
progress of the negotiations for a new contract, and that no threat to call' a strike,
against the Respondent was made, as Feahr himself well, knew, I have ' no occasion
to consider the validity of the Respondent's affirmative defense.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent also challenges the jurisdiction of the Board on tlie'ground that,
notwithstanding the fact that the gross volume of its business greatly exceeds the
jurisdictional requirement established by the Board, its operations, which are wholly
intrastate, except for approximately $2,000 of materials originating outside the
State of Illinois, do not affect commerce. The Board has held, however, with
reference to corporations operating a local passenger transit system by motorbus,
that it will assert jurisdiction over transit systems doing a gross volume of business
in excess of $250,000 per annum. See Charleston Transit Co., 123 NLRB 1296.
I find, therefore, that the action taken by the Respondent described in section III
of this report, occurring in connection with the operations of the Respondent set
forth in section I thereof, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor disputes
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
7 The name of Tester appears first , on the petition but it must not be assumed from this
that he was necessarily more active than Smithy or Donahue in promoting the petition.
Indeed, Donahue testified that Tester and Smithy were not responsible for obtaining a
majority of the signatures on the petition.
8 What Valdez allegedly told Feahr about'Tester 's intentions must be-regarded as falling
within this category . The Respondent failed to call Valdez as a witness , and it must be
assumed, therefore, that his testimony would not have been favorable to the Respondent.
Moreover, Feahr conceded on cross-examination that it was possible that what Valdez
told him was that Smithy said that the buses would be pulled off the street . Since Back
denied that he told Feahr that Tester had made any strike threat , Feahr could have acted
only on the basis of what Wolfram told him.
BROTHERHOOD OF LOCOMOTIVE FIREMEN,'ETC. 1147
3. By interfering with, restraining, and coercing its, employees in the exercise of
rights guaranteed to them by Section 7 of the Act, as set forth above, the Respon-
dent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
Brotherhood of Locomotive Firemen and Enginemen; and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration, Morenci Branch
k
Brotherhood of Locomotive Firemen and Enginemen and Phelps
Dodge Corporation , Copper Queen Branch
Brotherhood of Locomotive Firemen and Enginemen; and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration, New Cornelia Branch
Brotherhood of Locomotive Firemen and Enginemen; - and
Brotherhood of Railroad Trainmen and Phelps Dodge Cor-
poration, Morenci Branch . Cases Nos. 21-CB-1488, 21-CB-
1489, $1-CB-1490, and 21-CB-1492. March 3, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel,
the Respondents, and the Charging Party filed exceptions to the In-
termediate Report and the General Counsel and the Respondents filed
supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications, additions, and ex-
ceptions indicated below.
For the reasons set forth in the Intermediate Report we agree with
the Trial Examiner that the Respondent's failure to notify the Indus-
130 NLRB No. 94.