Dixie Motor Coach Corp.

National Labor Relations Board - Board Decisions

Jul 26, 1940

25 N.L.R.B. 869 (N.L.R.B. 1940)

In the Matter of DIXIE Mo'rOR COACH CORPORATION AND SUNSHINE
Bus LINES, INC., and BROTHERHOOD OF RAILROAD TRAINMEN
Cases Nos. C-1115 and R-11.30.-Decided July 26, 1940
Jurisdiction : motor transportation industry.
Unfair Labor Practices
In General: responsibility of employer for acts of employees
Intel ference, Restraint, and Coercion: anti-union statements; declaration of
union preference ; interrogation concerning union membership ; discharge, lay-
off and transfer of committee members who attempted to gain recognition
for the union ; interference 'with right of employees to bargain collectively ;
sponsoring withdrawal petition and letters of withdrawal
The granting of a general salary increase for the first time in four years
during the pendency of a request for recognition held 8 (1).
Discrimination: discharges for union membership and activity ; effect of co-
existence of a discriminatory and proper motive for action'of employer.
Testimony ender the Act: discharge of employee for giving testimony at earlier
hearing.
Collective Barrjabung: conditions precedent to employer's duty to bargain:
designation of majority by express authorization ; effect of withdrawal of
designation as result of employer's unfair labor practices ; duty to meet and
negotiate : refusal to recognize and consent to deal with union ; duty to carry
on negotiations in good faith ; failure to carry on negotiations in good faith :
distraction of representatives ; attempt to negotiate with other than author-
ized representatives ; destroying majority status by inducing employees to
renounce membership.
The respondents cannot effectively raise question of loss of majority
where such loss was occasioned by their unfair labor practices in refusing
to bargain and in engaging in other acts for the purpose of dissipating
the majority.
Remedial Orders : employer ordered upon request to bargain collectively with
the union ; reinstatement and back pay awarded.
Respondents ordered to bargain collectively where loss of majority was
occasioned by refusal to bargain and other unfair tabor practices directed
at dissipating majority Withdrawals found to be immaterial because
executed through instigation of respondents.
Refusal of employee discriminatorily discharged to accept prior to hear-
ing respondent's offer of non-substantially equivalent employment unaccom-
panied by back pay held no bar to reinstatement and to right to back
pay for entire period of discrimination.
Unit Appropriate for Collective Bargaining : motorbus drivers of both com-
panies including extra drivers and excluding supervisors.
Definitions : employer • enterprises operating under common control.
Practice and Procedure : petition dismissed in view of finding of refusal to
bargain.
2.5 N L. R B., No. 98,
869
2831x{(,--}°_- % of 2 --5C
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. E. P . Davis and Mr. Alba Burnham Martin, for the Board.
Mueller c6 Mueller , by Mr. Karl H. Mueller and Mr. Harold E.
Mueller, and Mr. J. C. Duvall , of Fort Worth, Tex ., for the respond-
ents.
Mr. W. P. Nutter , of Kansas City , Mo., Mr . L. A. Fennell, of
Dallas , Tex., and Mr . C. H. Smith, of Fort Worth, Tex , for the
Brotherhood.
Mr. Charles Romick, of Dallas , Tex., for the intervenors.
Mise Ida Klaus , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF T1-1E CASE
On April 6, 1938, Brotherhood of Railroad Trainmen, herein
called the Brotherhood, filed with the Regional Director for the
Sixteenth Region (Fort Worth, ,Texas) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Dixie Motor Coach Corporation and Sunshine Bus
Lines, Incorporated, Dallas, Texas,.herein called the respondents, and
requesting an investigation and certification of representatives pursu-
ant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On August 29, 1938, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act, and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
an investigation of the question concerning representation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice: The Brotherhood thereafter,
on September 1, 1938, filed charges with the Regional Director al-
leging that the respondents had engaged in and were engaging in
certain unfair labor practices. On September 7, 1938, the Board,
acting pursuant to Article II, Section 37 (b), of National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
dered that the representation proceeding and the proceeding in
respect to the unfair labor practices be consolidated for the purposes
of hearing and that one record of the hearing should be made.
Upon the charges thus duly filed, the Board, by the said Re-
gional Director, issued its complaint, dated September 10, 1938,
against the respondents, alleging that the respondents had engaged
in and were engaging in unfair labor practices within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.
DIME MOTOR COACH CORPORATION 871
The complaint and the accompanying notice of hearing thereon and
on the petition for investigation and certification of representatives
were duly served upon the respondents and upon the Brotherhood.
During the course of the hearing, amended charges were received by
the Trial Examiner, and the complaint was amended upon motion of
counsel for the Board, duly made and granted, to acid thereto a
further allegation of an unfair labor practice within the meaning
of Section 8 (3) of the Act, and an allegation of unfair labor prac-
tices within the meaning of Section 8 (5) of the Act. The complaint,
as amended, charged in substance (1) that on or about September
15, 1937, and at all times thereafter the respondents had refused to
bargain collectively with the Brotherhood as the duly designated
representative of their motorbus drivers; (2) that the respondents
had, by the discharge of and refusal to reinstate three named em-
ployees, discriminated against each of such employees in regard to
hire and tenure of employment because of his activities in behalf of
the Brotherhood; and (3)' that the respondents had, by threats,-in-
timidation, acts of discrimination, and by other acts, interfered with
the right of their employees to self-organization and to engage in
concerted activities. On September 20, 1938, the respondents filed
their answer to the complaint as originally issued, and thereafter
during the course of the hearing an answer was filed to the complaint
as amended. The answer to the complaint as amended admitted the
essential allegations as to the nature of the respondents' business but
denied that the respondents had engaged in the unfair labor practices
charged.
Pursuant to notice, a hearing on the complaint and on the petition
for investigation and certification of representatives was held in
Dallas, Texas, from September 26 to October 12, from October 18 to
October 20, and from October 26 to November 16, 1938, before Howard
Myers, the Trial Examiner duly designated by the Board. At the
commencement of the hearing, motions to intervene in the proceeding
on the petition for investigation and certification of representatives
were made on behalf of 53 motorbus drivers employed by the respond-
ents. These motions were granted. The Board, the respondents, and
the intervenors were represented by counsel and participated in the
hearing. The Brotherhood was represented by a special organizer
and by a field supervisor and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing'on the issues was afforded all parties.
At the commencement of the hearing motions for intervention in
the proceeding on the complaint were made on behalf of 46 motorbus
drivers employed by the respondents on the ground that each of them
had an interest in that proceeding in so far as it concerned the dis-
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge and possible- reinstatement of M. W. Warren, an employee
named in the complaint as having been discriminatorily discharged by
the respondents. The motions were denied by the Trial Examiner.
Thereupon the motions were renewed but limited to a request for
intervention as am' cus curiae. The motions as renewed were denied
by the Trial Examiner but were received as pleadings. The respond-
ents moved, at the commencement of the hearing, for further and
better particulars with respect to the allegations of the complaint as
originally issued and for a continuance of the hearing. The Trial
Examiner denied the first part of this motion and assured the respond-
ents sufficient time, after the conclusion of the Board's case, in which
to prepare their defense to the charges alleged in the complaint.
During the course of the hearing counsel for the Board moved, with-
out objection, to amend the complaint in certain minor respects, and
the motion was granted. Amended charges were offered and received
on two occasions while the hearing was in progress, and counsel for
the Board accordingly moved to amend the complaint so as to add
thereto an allegation of the discriminatory discharge, within the mean-
ing of Section 8 (3) of the Act, of J. B. McCullough and an averment
of a refusal on the part of both respondents to bargain with the
Brotherhood as the duly designated representative of their motorbus
drivers, within the meaning of Section 8 (5) of the Act. The respond-
ents objected to each of these motions on the ground of lack of prior
notice and for other reasons. The motions to amend the complaint
were granted by the Trial Examiner, and the hearing was adjourned
for 5 clays to enable the respondents to prepare their answer to the
complaint as amended. The respondents thereafter filed their answer
to the complaint as amended, moved for further and better particu-
lars and "to strike and dismiss," and filed a "plea in abatement." 1
The motions and the plea were denied by the Trial Examiner and his
rulings are hereby affirmed. Motions to intervene in the proceeding
on the complaint as amended were made on behalf of 61 motorbus
drivers on the ground that these persons did not desire to be repre-
sented by the Brotherhood in collective bargaining and that the Broth-
erhood was not the duly designated representative of the respondents'
motorbus drivers.2 The Trial Examiner denied the motions to inter-
vene directly, as well as similar motions to intervene as amicus curiae,
but received such motions as pleadings and permitted counsel for the
61 persons to participate in oral argument before him at the close of
' The motion "to strike and dismiss" and the "plea in abatement" Niel e based upon the
contention that the allegation of a refusal to bargain is inconsistent in theory with the
proceeding on the petition for investigation and certification of representatives and that
the institution of such proceeding forecloses the Board from alleging a refusal to bargain
The petitioners who signed the first set of motions to intervene in these pioceedings
formed the nucleus of the second and third groups
DIXIE MOTOR COACH CORPORATION 873
the entire case and to file'a brief for his consideration. At the close
of the Board's case the hearing was again recessed for 5 days to enable
the respondents to prepare a defense to the amended complaint.
At the close of the Board's case, and again at the close of the entire
case, the respondents made numerous motions to dismiss the com-
plaint in its entirety and each material allegation thereof for want
of competent proof and to strike or limit the testimony of certain
witnesses. These motions were denied. Upon the conclusion of the
entire case, counsel for the Board moved to conform the complaint to
the proof and the Trial Examiner granted the motion solely for the
purpose of correcting mistakes in spelling, dates, punctuation, typog-
raphy, and similar matters. Various other rulings were made by
the Trial Examiner during the course of the hearing on motions
and on objections to the admission of evidence, and in his Intermediate
Report the Trial Examiner ruled upon those motions as to %vhich
lie had reserved decision during the hearing. The Board hIas re-
viewed.-these rulings and all other rulings made by the Trial Examiner
and finds that no prejudicial errors were 'committed. The rulings
are hereby affirmed.
On January 11, 1939, the Trial Examiner filed his Intermediate
Report, finding that the respondents had engaged in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the Act, and recommenclulg
that the respondents cease and desist therefrom and take certain speci-
fied affirmative action deemed necessary to effectuate the policies of
the Act. Thereafter the respondents filed exceptions to the Inter-
mediate Report and a brief in support of said exceptions. A brief
was also filed on behalf of the 61 persons who had moved to intervene
m the proceeding on the complaint as amended.
Thereafter, upon supplemental charges duly filed by the Brother-
hood and pursuant to an order of the Board reopening the record in
these cases and authorizing the Regional Director to accept supple-
mental charges and to issue a supplemental complaint and notice of
hearing thereon, in accordance with Article II, Section 36, of
National Labor Relations Board Rules and Regulations-Series 1, as
aniended, the Board, by the said Regional Director, issued its supple-
mental complaint, dated September 11, 1939, against the respondents,
alleging that the respondents had engaged in and were engaging in
unfair labor practices within the meaning of Section 8 (1), (3), and
(4) and ,Section 2 (6) and (7)' of the Act. The supplemental com-
plaint charged, in substance, (1) that the respondents had discrimi-
nated against W. T. Wilkinson, a motorbus driver, by reason .of his
activities on behalf of the Brotherhood and because he had given tes-
timony at the earlier hearing, and (2) that the respondents had re-
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired as a condition of the employment of one Burke that he refrain
from associating himself with any labor organization or from engag-
ing in any activities for the purposes of collective bargaining. The
supplemental complaint and an accompanying notice of hearing were
duly served upon the respondents and upon the Brotherhood.
On September 20, 1939, the respondents filed their answer, denying
that they had committed the unfair labor practices alleged in the
supplemental complaint, averring by way of affirmative defense that
Wilkinson had been laid off as a result of a consolidation of schedules
made necessary for reasons of economy, and moving to dismiss the
supplemental complaint. Prior to the commencement of the hearing,
each of the respondents filed ii motion for further and better
particulars.
Pursuant to notice, a hearing on the supplemental complaint was
held at Dallas, Texas, on October 19 and 20, 1939, before Henry W.
Schmidt, the Trial Examiner duly designated' by the Board. The
Board and the respondents, who were represented by counsel, and the
Brotherhood, represented by its vice president, participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the close of the Board's case, each of the respond-
ents moved to dismiss the supplemental complaint for failure of proof,
and the Trial Examiner granted the motion in so far as it related to,
the allegations with respect to Burke. Upon the conclusion of the
entire hearing, each of the respondents renewed its motion to dismiss
the'complaint in so far as such motions were not granted earlier. and
the motions were again denied. Various other rulings were made by
the Trial Examiner on motions and on objections to the admission of
evidence. The Board has reviewed these rulings and all other rulings
made by the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On October 27, 1939, the Board issued an order directing that no
Intermediate Report be prepared by the Trial Examiner on the sup-
plemental complaint and the hearing thereon and that, in accordance
with Article II, Section 37 (c), of National Labor Relations Board
Rules and Regulations-Series 2, proposed findings of fact, proposed
conclusions of law, and a proposed order be issued. On November 3,
1939, counsel for the Board filed a motion, addressed to the Trial
Examiner, to conform the supplemental pleadings to the proof. The
motion is hereby granted and the objections of the respondents are
overruled.
On May 15, 1940, the Board issued proposed findings of fact, pro-
posed conclusions of law, and proposed order, copies of which were
-duly served on all parties. Thereafter, the respondents and the 61
DIXIE MOTOR COACH CORPORATION 875
drivers who had moved to intervene in the proceedin on the original
complaint filed exceptions to the proposed findings of fact, proposed
conclusions of law, and proposed order. Upon request of the re-
spondents the Board granted all parties permission to argue orally
before it.
A petition of the 61 drivers was subsequently filed with the Board
requesting permission to submit a written argument in lieu of oral
argument. The petition was granted and on June 20,, 1940, such
written argument was filed in the form of a brief. On June 22, 1940,
the respondents notified the Board of their desire to withdraw their
i equest for permission to argue orally before it and requested that
a brief already filed by them in support of their exceptions to the In-
termediate Report in the first proceeding be considered in support
also of their exceptions to the proposed findings, proposed conclu-
sions of law, and proposed order. Upon being notified of the re-
spondents' waiver of oral argument, the Brotherhood informed the
Board that it did not desire to argue orally. The Board, thereupon,
on June 25, 1940, cancelled the scheduled argument.
The Board has considered the exceptions to the Intermediate Re-
port, and to the proposed findings of fact, proposed conclusions of
law, and proposed order filed by the respondents and by the inter-
venors and the briefs in support thereof, and in so far as the excep-
tions are inconsistent with the findings, conclusions, and order set
forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. TIIE BUSINESS OF TI-IE RESPONDENTS
The respondent Dixie Motor Coach Corporation, herein called Dixie,
is a Delaware corporation licensed to do business in the States of Texas,
Arkansas, Oklahoma, and Louisiana. The respondent Sunshine Bus
Lines, Inc., herein called Sunshine, is a Texas corporation licensed to
"do business in the States of Texas and Louisiana. Both respondents,
operating under joint management and to some extent under common
ownership,3 have their principal place of business in Dallas, Texas,
and are engaged in the transportation by motor coach of passengers,
light express, and newspapers, between points in the State of Texas
and other States, both directly by means of their own motor coaches
and indirectly through arrangements with connecting carriers. Each
of the respondents sells tickets good for continuous passage from the
Tie stock of Dixie and the stock of Sunshine and owned by A W Riter and others
The record does not indicate the extent of the holdings of Biter and the other stock-
holders
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station points of each to all parts of the United States. Dixie and
Sunshine are affiliated with the National Trailways System, a Nation-
wide organization of motor-coach operators which arranges for the
interchange of passengers carried by its affiliates.
In connection with its transportation activities , Dixie employs ap-
proximately 120 persons and operates a total of 60 motorbuses, 45 of
which are engaged in the execution of regular schedules and 15 of which
are used for extra trips , while Sunshine employs approximately 80 per-
sons and operates a total of about 50 motorbuses , 35 of which are
devoted to regular schedules and the remainder to extra trips.
The respondents are subject to regulation by the Interstate Com-
merce Commission.
We find that the respondents are engaged in traffic, transportation,
and commerce among the several States of the United States and that
the persons engaged in the operation of the respondents ' motor coaches
are directly engaged in such traffic , transportation , and commerce.
II. THE BROTHERHOOD
Brotherhood of Railroad Trainmen is an unaffiliated labor organi-
zation. It admits to membership persons employed in the railroad
industry and motorbus drivers employed in the bus-transportation
industry, including motorbus drivers employed by the respondents,
and excluding supervisors.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
The complaint alleged that the respondents have engaged in unfair
labor practices within the meaning of Section 8 (5) of the Act by
refusing to bargain collectively with the Brotherhood, on or about
September 15, 1937, and at various times thereafter, as the exclusive
representative of the respondents' motorbus drivers.
1. The appropriate unit
The complaint alleged, and the petition for investigation and cer-
tification of representatives filed by the Brotherhood claimed, that
all employees of both respondents engaged as motorbus drivers consti-
tute an appropriate bargaining unit. At the hearing the Brother-
hood clarified its claim to include extra drivers and to exclude
supervisors. The respondents and the intervenors did not object to
the unit as thus alleged and claimed. The record reveals the following
facts as to the relationship between Dixie and Sunshine: Although
separate pay rolls and records are kept for each of the respondents,
DIXIE MOTOR COACT CORPORATION 877
both are jointly operated and managed and, to some extent, commonly
owned.' Hiring of employees for Dixie, and Sunshine is handled by
the same persons. Wage rates are identical for motorbus drivers of
both respondents for similar work and identical increases in wages
have been effected for the employees of both simultaneously.
We find, upon the basis of identity of labor policy, operations,
management, and control, that, for the purposes of Section 9 (b) of the
Act, both respondents constitute a single employer.5
In support of the Brotherhood's contention and of the allegation of
the complaint that motorbus drivers constitute a unit appropriate for
collective bargaining, the record shows the following facts; The
Brotherhood has limited its organizational efforts and collective bar-
gaining endeavors in the motorbus transportation industry generally
to motorbus drivers. The qualifications, training, duties, hours of em-
ployment, and other working conditions of motorbus drivers are sepa-
rate and distinct from those of other classes of the respondents'
employees. The evidence adduced at the hearing also reveals the
following facts, pointing to a community of interest between the
motorbus drivers of both respondents : Motorbus drivers of Dixie and
Sunshine are subject to the supervision of a common superintendent of
drivers. There is an interchange of motorbus drivers between both
respondents. Common facilities for congregating and for the per-
formance of clerical duties incident to their employment are available
to and used by the motorbus drivers of both respondents. The record
clearly indicates that, except for the fact that extra drivers are not
necessarily engaged in driving regularly and are not permanently
assigned to a fixed schedule, their duties and working conditions gen-
erally are not different from those of regular motorbus drivers and
that they are customarily promoted to regular work on definite
schedules.
We find that the motorbus drivers of Dixie and Sunshine including
extra drivers and excluding supervisors, constitute a unit appropriate
for the purposes of collective bargaining and that said unit insures to
4 See footnote 2, sapia
'Matter of C. A Lund Company and Noielty Workers Union , Local 1866 ( A F of L.)
si,ecessoi; Mattel of Christian A Lund, doting business as C A Lund Company and, North-
land Ski, Manufacturing Company , a corporation and Woodenwcaie Workers Union, Local
20481, and Matter of C: A Lund Company and Northland S),t Mann facturing Company and
Woodenware Woi kers Union, Local 20481, 6 N L R 13 423, enf'd Al. L R B v Christian
A Lund, doing business as C. A. Lund Co and h'oithland S),t iffy Co, 103 P (2d) 815
(C C A 8) , Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co,
and Tict)cn and Lang Dry Dock Co and Industrial Union of Marine and Shipbuilding
Workers of America, 5 N L R B 20 , Matter of The Calco Chemical Company, Ine, and
The Calcociaft and Matter of American Cyanamid Company, The Calco Chemical Com-
pany,1Inc . its subsidiary. and the•Beetlewaie Dept ,a svbdimision ,,ofrsaid,American < Cyanm-
mid Company and Chemical Workers, Local No 20923, American Federation of Labor, 13
N L R B 34
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of Dixie and-Sunshine the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates the
policies of the Act.
2. Representation by the Brotherhood of,a majority in the appropriate
unit
A list, prepared by the respondents and introduced in evidence by
the Board, of all employees in the unit hereinbefore found appropriate
shows that for the first half of September 1937, 80 persons were em-
ployed by the respondents in said unit. On behalf of the Brotherhood
and the Board there were offered and received in evidence signed docu-
ments entitled "Personal Authorization for Representation," in which
the signer expressly authorizes the Brotherhood to represent him for
the purposes of collective bargaining for a period of 1 year from the
date appearing on the document. All these documents are dated as
of some time in September 1937. There were also offered and re-
ceived signed applications for, membership in the Brotherhood.
The intervenors contended at the hearing and the respondents argue
in their brief that, since the authorizations had expired by their own
terms at the time of the hearing, they are no longer effective and cannot
be regarded as evidence of representation by the Brotherhood. We
find this contention to be without merit, as the question of whether or
not the respondents refused to bargain collectively with the Brother-
hood is one which must be answered in terms of the issues as raised by
the complaint, wherein it is alleged that the refusal to bargain occurred
on or about September 15, 1937, and at various times thereafter.° With
respect to the applications for membership, the, respondents take the
position in their brief that, since said applications were not, as of the
date of the hearing, accepted by the Brotherhood in accordance with
the requirements of its constitution, the applicants cannot be regarded
as members of the Brotherhood. The organizer for the Brotherhood
testified, in this connection, that the Brotherhood,had deferred action
on these applications until such time as it was recognized by the re-
spondents as the collective bargaining representative. We hold that,
regardless of whether the applicants have in fact been considered mem-
bers, their authorizations properly designated the Brotherhood as their
representative for purposes of collective bargaining.t
O Matter of Remington Rand, Inc, and Remington Rand Joint Pi otective Born d of the
Distiiet Council Office Equipment W,orkeis, 2 N. L R P 626, enf'd, N L R B v Rem-
inoton Rand, Inc, 94 F (2d) 862 (C C A 2), ceit denied, 5S S Ct 1046
-Matter of The Scirick Corporation and International Union, United Automobile
lrorl eis of America, Local No. ti29, S N. L R R 621, enf'd, International Association of
Machinists v Al L R B , 110 F (2d) 29 (C A for D C ), cert granted, 60 S Ct 721 ,
clatter of Acme Air Appliance Company, Inc in(] Local No 1224 of the United Electrical
Radio & Machine 11 or l es of America, C 1 0 . 10 N L It It 1355
DIXIE MOTOR COACH CORPORATION 879
The genuineness of the signatures on the authorizations and ap-
plications for membership was in some instances proved directly by
the testimony of the signers, in some instances by the testimony of
witnesses to the signature, and, as to the remainder, by stipulation
entered into by the parties. The respondents were afforded an op-
portunity to check the names appearing on the authorizations and
applications against the list submitted by them.
We have compared the authorizations with the respondents' list and
find that, as of September 14, 1937, 49 employees of the 80 in the twit
which we have found to be appropriate had signed authorizations
and that, as of September 20, 1937, 52 employees had thus signed. We
accordingly find that on September 14,1937, and at all times thereafter
the Brotherhood was the duly designated bargaining representative
of a majority of the respondents' employees in the unit found to be
appropriate. Pursuant to Section 9 (a) of the Act, the Brotherhood
was, therefore, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, hours of employment, and other conditions 'of employment.
3. The refusal to bargain and other acts of interference
a. The Brotherhood's first interview with the respondents and the
events which followed
Toward the middle of August 1937 several of the respondents'
motorbus drivers decided that organization of their fellow drivers was
desirable and necessary and attempted , toward that end, to enlist the
aid of L. A. Fennell , the Brotherhood 's special organizer. On the
morning of September 1, 1937, M. W. Warren, leader of the organiza-
tional movement among the respondents' drivers, called Fennell on the
telephone , announced that the drivers of Dixie and Sunshine were
ready and anxious for active organization , and urged him to make the
services of the Brotherhood immediately available to them. Accord-
ingly that evening a meeting was held at a hotel in Dallas , Texas,
with Fennell and about 13 of the drivers, at which the Brotherhood's
special organizer explained the nature of the Brotherhood 's operations
and its general policies and proposed to the drivers that, if they so
desired , they sign authorizations and applications . All employees but
one who attended the meeting thereupon executed authorizations and
applications . It was agreed at the meeting that the signed documents
would be retained by the drivers until a majority of their fellow em-
ployees had signed , at which time all authorizations and applications
would be turned over to Fennell . The drivers also undertook to solicit
those employees who did not attend the meeting . The following eve-
ning another group of drivers met with Fennell and the procedure of
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the previous day was repeated. About a week later, Warren informed
Fennell that a majority of the drivers hzid signed authorizations-and
applications and on September 13 or 14, in accordance with prior ar-
rangements, the executed documents were delivered to Fennell. As of
'September 14, 49 drivers had signed authorizations, and the following
day the total was augmented by 1.
On the morning of September 15 Fennell called upon A. W. Biter,
herein called Riter, president and general manager of the respondents,
introduced himself by handing Riter one of his business cards, in-
formed him that he had in his custody authorizations signed by a
majority of the drivers of Dixie and Sunshine designating the Brother-
hood as their collective bargaining agency, and handed him a letter,
saying, "This will explain my mission." Riter perused the letter
which was addressed to him as president of both respondents and was
signed by Fennel! for the Brotherhood. Stating that a majority of the
bus drivers had, selected the Brotherhood as their representative for
the purpose of collective bargaining in accordance with the provisions
of the Act, it contained the following questions :
Will you kindly advise the date that would be agreeable with
you, at which time we will present the signed authorizations
from the bus operators of your Company, authorizing the
Brotherhood of Railroad Trainmen to represent them as above
referred to. Will you agree that upon presentation of signed
authorizations from a majority of Dixie and Sunshine Trail-
ways operators selecting the Brotherhood of Railroad Trainmen
as their representatives, that, you will recognize the - Brother-
hood of Railroad Trainmen as'the bargaining agency for the
Dixie and Sunshine Trailways bus operators?
The communication thus handed to Riter closed with the request
that lie reply to a designated post-office box number and with the
expectation of "Looking forward to a pleasant meeting."
With regard to this interview, Fennell testified at the hearing
that after looking at the letter Riter summoned Jameson, the re-
spondents' superintendent of drivers, and, pointing to Fennell, re-
marked, `He says that he signed up the majority of our bus drivers."
Jameson replied that it was "all news" to him. Upon Fennell's
request for a reply to the questions posed by the letter, Riter refused
to comply at that time but reluctantly agreed to give Fennell an
answer-within 10 days. Whereupon Fennell acquiesced and the two
men parted. Riter's version of the interview differs from that of
Fennell in that Biter testified , on direct examination by the re-
spondents, that after Fennell had made his majority claim and had
presented the letter and before Jameson was summoned Riter had
demanded a showing of majority and that Fennell had insisted that
DIXIE MOTOR COACH CORPORATION 881
he was 'not under a duty to comply with the demand for proof until
the letter was signed by Riter. On cross-examination Riter varied
his earlier testimony by admitting that Fennell had not asked him
to sign anything but had said that he wanted the Brotherhood recog-
nized. He insisted, however, that Fennell had refused, upon request,
to support his claim of majority representation and that that request
had been made, by Riter before the appearance of Jameson. Riter
did not state, and the evidence fails to show, that he had, at the time
he,apprised Jameson of Fennell's majority claim, also informed,,hium
of his request for proof. Jameson's testimony is to the effect that he
was, called into Riter's office and was informed of Fennell's majority
claim, to which he expressed surprise; that after Fennell's departure
Riter asked him what he thought of Fennell's statement that the
Brotherhood had been designated by a majority of the operators and
Jameson replied that he had nothing to say, as he was surprised;
and that no other remarks about the conterence or the general sub-
ject were made by Riter or Jameson.
The Trial Examiner, who observed the demeanor of the witnesses
and heard their testimony, found that Riter's statement concerning
his demand for proof of majority was not worthy of belief. We
find, in reliance on the Trial Examiner's evaluation of Riter's credi-
bility and in view of the inconsistency in Riter's testimony on the
important matter of whether Fennell had asked him to sign any
documents, and further in view of Riter's failure under the circum-
stances to inform Jameson that he had demanded such proof of
Fennell, that no such demand was in fact made.
On the morning of September 18, the day following. Fennnell :s first
visit with Riter, there appeared among the employment advertise-
ments in the Dallas Journal, a newspaper circulated in Dallas, the
following item :
W ANmrmD-50 bus drivers. Make application at 2805 Logan St.,
to J. A. Jameson between hours of S: a. m. and 4: p. in.
From early in the morning of September 16 and throughout the
following day a total of more than 100 applicants crowded the re-
spondents' premises in response to the advertisement and were seen
by many of the drivers. All drivers who testified on behalf of the
Board or the respondents and who were asked about the advertise-
ment stated that on September 16, or shortly thereafter, they learned
about the appearance of the advertisement, having seen it themselves
or having heard about it from other drivers. Included among these
witnesses were employees stationed outside of Dallas. It was stipu-
lated by the parties that if 49 named drivers were called as witnesses
by the respondents each of them would testify that he had seen or
heard about the advertisement. There is also evidence of discussion
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the drivers stationed at various points of the respondents"
system of the appearance of the advertisement and of its possible
significance.
Drivers called by the Board as witnesses testified that the appear-
ance of the advertisement, simultaneously with the manifestation of
promotional efforts by the Brotherhood and immediately upon the
heels of the respondents' first official information of the Brother-
hood's majority claim, instilled in them and in fellow employees to
whom they had talked a fear that the respondents intended immedi-
ately to replace Brotherhood adherents with outsiders or led them
to regard the respondents' conduct as a warning that continued
support of the Brotherhood would exact from them the penalty of
dismissal from their positions. These appeared to them to be the
only reasonable implications of the respondents' actions in this
regard, since none of them had at any previous time observed an
advertisement for so large a number as 50 drivers; since they were
not aware at that time of any anticipated acquisition of additional
buses or bus lines by the respondents, and since they knew of no
other normal business reasons for the sudden need for that number
of drivers. Warren, the most active Brotherhood adherent among
the respondents' drivers, testified as follows concerning the effect of
the advertisement on him : "I feel like I was as strong for the
Brotherhood as any man in it, and I know it affected me when I saw
it." "* * * it kind of made ine sick at the stomach to think
what they might be going to do to a bunch of the boys that needed
the work." He clarified the basis of the drivers' fear that they
would be displaced by outsiders and reconstructed the circumstances
which engendered that fear as follows : "Well, we had no reasons to
doubt it. There was 500 men out there, and the ad was in the
paper, and we didn't know whether the company was bluffing, or
whether they meant what they were saying in the newspaper ad. All
we could do was wait and see." The testimony of another driver is
that, when he was asked by counsel for the respondents during the
course of their investigation prior to the hearing as to the effect of the
advertisement upon him, he replied, "well, I just figured I was fired or
would be fired." He attempted to convey to counsel for the respond-
ents at that time the reasonableness of his reaction by posing to him
the following question : "Mr. Duvall, if you went down in the morning
and got a newspaper and there was an ad in there for 50 attorneys that
Mr. Riter had advertised for 50 attorneys wouldn't you think you was
out of a job?"
The -respondents called as witnesses at least 12 drivers, each of
whom was asked on direct examination whether the advertisement
had had any effect on him and each of whom replied in turn that
DIXIE MOTOR COACH CORPORATION 883
it had had no effect whatever. Of these witnesses 3 had not signed
authorizations or applications for membership in the Brotherhood.
It was stipulated by the parties that if 49 other named drivers were
called as witnesses by the respondents each of them would testify
to the same effect in this regard as the 12 who were interrogated at
the hearing. On cross-examination, most of the 12 drivers testi-
fied that they had never before seen or heard of an advertisement
by the respondents for so many new drivers; that they had not
learned of the acquisition or contemplated acquisition by the respond-
ents of additional buses or netiv bus lines; and that although they
could at the time think of no reason for the need for 50 drivers they
were not 'concerned about their own tenure or about the advertise-
ment. One of these witnesses thought that the respondents in
fact had no employment to offer the applicants and that the adver-
tisement had been inserted in the Dallas Journal for some reason
known only to the respondents; another believed that the adver-
tisement expressed a need for "500 drivers" and he wondered what
disposition would be made of so large a number of new employees.
The testimony of another driver, in response to a question of counsel
for the Board as to the effect upon him of the advertisement, was as
follows: "Well, any man that has got a job as a driver and sees that
ad, he `will give it some consideration, he would think about it
all right, but, still, so far as feeling that I was going to get let
out and these men was going to take my job, I didn't have any
feeling that way." Cross-examination of a number of these wit-
nesses revealed that they had made a determined effort to see the
advertisemment after its appearance had been called to their attention.
At the hearing Riter claimed sole authorship of the idea of the
advertisement and assumed the responsibility for its insertion in
the new spaper. His testimony in this regard and as to the motives
which underlay his action and the reasons which prompted it may
be suuuuarized as follows: After the interview with Fennell on
the morning of September 15, at which Riter had heard it claimed
that a majority of his drivers had authorized the Brotherhood to
represent them for collective bargaining, Riter became disturbed
about what might happen to him, as lie was without previous ex-
perience with "labor trouble" and had "lived closely to my men,
some of them 20 years." Seeking consolation and advice, he tele-
phoned to his lawyer at Fort Worth. The latter advised him that
he had a right to know whether or not a', majority of his drivers
belonged to the Brotherhood and that, although he was under a
duty to refrain from interfering with the organizational activities
of his employees, he had a right to protect the operation of his
business. Whereupon Riter inquired as to the likelihood of a strike
884. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"tying up my buses," and his lawyer replied that "the papers have
been full of it," calling Riter's attention to strikes in Kansas City,
and in the East. - Still without advice on "how to stop the matter, or
get any relief," and "not giving the union one thought in my mind,`
and without "any malice in rriy heart," he protested, he prepared
for the contingency of a strike among the Brotherhood adherents.
"So," lie explained, "I put a little ad in the newspaper." Choice of
the number 50, he stated, was merely arbitrary and had no signifi-
cance, although the evidence shows that 50 drivers had in fact
signed authorizations by the time the advertisement was arranged
for. Riter admitted on cross-examination by counsel for the Board
1 hat although he was "scared to death" his men might strike he
had not inquired of any of the immediate supervisors of the drivers
concerning the likelihood of such an event and made no other at-
tempt to ascertain from the men directly whether his fears were
reasonable and whether a possible strike could be averted. Although
Fennell had stated to Riter at the close of their conference that
he would get in touch with him in 10 clays, Riter insisted at the
hearing that he had no assurance that Fennell would not call the'
men out on strike, as lie had met Fennell for the first time that
morning and could not be sure of his trustworthiness.
The record shows that, as, a result of the advertisement, the re
spondents hired four new drivers, two of whom had had no previous'
experience and one of whom was discharged for incompetence about
two months later.
We find, in the light of the circumstances surrounding the insertion
of the advertisement as hereinbefore related, that the respondents'
sole purpose in publicizing an apparent need for 50 drivers, a number
paralleling exactly the signed authorizations submitted to the Broth-
erhood, almost immediately following the Brotherhood's pronounce-
ment of its majority claim and in the face of its request for the fixing
of a date for substantiating that claim by satisfactory proof, was to
vitiate the Brotherhood's majority by confronting those who had
designated it as their bargaining agency with the fear of loss of their
employment if they failed to revoke such designation. We find further
that the respondents planned by such strategy to escape their obliga-
tion under the Act to deal with the majority representative of their
employees.
The respondents' efforts at this time to obliterate the Brotherhood's
representation among their drivers took the further form of question-
ing of drivers by supervisors as to the extent of their activities in
behalf of the Brotherhood and of statements by supervisory employees
to'their subordinates expressing chagrin at not having been consulted
by the drivers before they allied themselves with the Brotherhood,
deprecating the Brotherhood, suggesting membership in other labor
DIXIE i1IOTOR COACH CORPORATION 885
organizations, and warning that the respondents would never recog-
nize the Brotherhood or deal with it. On the day of the appearance
of the advertisement in the Dallas Journal, Biter, according to his
testimony , started on a trip over the respondents ' system, visiting
points outside of Dallas. The tour lasted about three or four days
and included stops at the respondents ' stations in Texarkana , Texas,
Hot Springs, Arkansas, and Shreveport, Louisiana. Warren, whose
schedule at the time brought him into Texarkana , testified that on
September 17, the day following publication of the advertisement
for 50 drivers , he saw Riter at the Texarkana bus terminal and that
Riter engaged him in conversation by stating that he had learned
from J . C. Biter, the respondents ' traffic manager , that Warren was
"leader of this labor movement." Warren replied that he did not
consider himself a "labor leader" and that there was in fact no leader,
as all the drivers had gone into the organizational work together and
all were "pulling for the Brotherhood." Riter thereupon expressed
surprise at Warren 's report on the Brotherhood activities among the
drivers, particularly since Warren "had always made him a good man"
and he had had "a lot of confidence " in Warren . Before the con-
clusion of the conversation , Warren testified further, Biter told him
"he was hurt to think us boys would join a union without coming to
him first, but , if we was going to join a union , why, he would rather see
us get into the union that the Tri-state boys had," the reference being
made to the drivers of a neighboring bus company. Warren had,
during the course of conversation , inquired about the newspaper ad-
vertisement and Biter informed him that it had been reported that
the number of applicants on September 16 had reached about 450
or 500.
Biter stated at the hearing that he might have talked with Warren
at the Texarkana bus station at that time , since he usually talked-with
"all the boys." He could not recall whether or not he had conversed
with the president of the Tri-State Transit Lines during the course
of that trip over the respondents' system but he did state, in response
to a question of counsel for the Board as to whether the drivers of
that bus company were organized, "I understand they are, and very
sick of it"; "they wish to God they had never heard of it." Biter's
source of information , he believed , was one of his own employees who
had -talked with the "ringleader" of the Tri-State Lines' drivers. He
testified that "just a part" of Warren's version of the conversation at
Texarkana was correct. He denied having told Warren of J. C.
Riter's report that Warren was the "leader of this labor movement"
and stated that he did not think that. he had asked Warren about the
"labor movement or the union. " Riter then proceeded to recount as
follows the circumstances surrounding his conversation with Warren
283036-42-vo1 25-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and its substance : No mention, as well as he could remember, was
made of "the union." Warren initiated the conversation by express-
ing to Riter a desire to talk with him when Riter returned to his
office in Dallas. Whereupon Biter replied "if it is about union matters
I have nothing to discuss with you on that whatsoever." Warren,
nevertheless, pressed consideration of the subject thus outlawed by
Biter and stated that someone had circulated the rumor that he was
the "ringleader." Biter's comment to Warren concerning the rumor
was that he had heard nothing about it, that Warren had always been
one of his best operators, and that "I imagine if you boys were going
to join a union or any organization you would probably discuss it with
me before you have taken any steps," or words to that effect. Biter
commented further as follows concerning the prior testimony of
Warren : "I know I didn't mention any conversation about a union,
any certain organization as he stated I said `Brotherhood.' The
Brotherhood didn't enter my mind." All other portions of Warren's
testimony on this point were specifically denied by Biter.
The Trial Examiner did not credit Riter's denials in this respect
and found that Warren's testimony concerning the conversation of
September 17 was credible. We find, on the basis of the Trial
Examiner's judgment of the witnesses and in view of the apparent
inadequacy of Riter's story to challenge the significant statements
attributed to him by Warren, some of which were directly admitted
by Riter, and further in view of the concurrence of Riter's tour with
the Brotherhood's first claim of majority, that Riter's specific denials
are unworthy of belief and that Riter did in fact utter the statements
to which Warren testified.
During the course of his visit at Texarkana, Biter had an' inter-
view with one Pete Hubbard, employed as a bus driver for the
respondents in September 1937 and at that time an active supporter
of the Brotherhood. Warren, whose schedule during the period in
question coincided with that of Hubbard to the extent that both oper-
ators spent 4 or 5 hours together in Texarkana on alternate nights,
testified that at about 11 o'clock of the evening of September 16
Hubbard had, without solicitation, related to him as follows the cir-
cumstances and substance of a conversation Hubbard had had earlier
that evening with Riter : Hubbard had, upon the invitation of Biter,
dined with the latter in his hotel room at Texarkana and during the
course of the visit Riter asked Hubbard whether they "couldn't get
together on the labor trouble and get it straightened out some way."
Riter added that he would "rather be in Alcatraz than work organ-
ized labor," that he had $20,000 to defeat the labor movement, that
there would be bloodshed before "this thing" was over, and_ that he
would sell the bus companies before he "would, work organized
DIXIE MOTOR COACH CORPORATION 887
labor." Warren testified further that several days thereafter Hub-
bard repeated to Fennell , the Brotherhood 's organizer , in the pres-
ence of Warren , the conversation he had had with Riter on Septem-
ber 16; that as Hubbard related the conversation Fennell made a
record,of it in writing ; and that when Hubbard finished his remarks
and Fennell completed his writing both men read the -written me-
morial and made certain changes. After these changes had been
made, Hubbard declared the writing to be true and correct and Fen-
nell thereupon asked him to sign it by writing his name close to
the end of the statement so that no additions could be made. Hub-
bard then affixed his signature to the document . The testimony of
Fennell is that some of - the drivers had told him - on September 25
that Hubbard would give him a statement and that late that night
Warren and the witness drove to Hubbard's home in Dallas. The
statement was then prepared and signed, substantially in accordance
with Warren's testimony , and Fennell affixed his own signature
thereto as witness . Fennell stated further at the hearing that he had
made no alterations in the instrument since it had been signed save
to insert one word as to whose spelling he was uncertain at the time
and as to which Hubbard had agreed that it might be added later
when the proper spelling was ascertained by Fennell.
Hubbard appeared at the hearing as a witness for the Board in
response to a subpoena . He testified that he was, at the time of his
testimony , an independent bus operator , having -leased some bus lines
for a period of 5 ' years from the respondent Sunshine on September
16, 1938, and having executed arrangements with the respondent
Sunshine for an interchange of passengers . His testimony concern-
ing the interview with Riter on September 16, 1937, varied as fol-
lows from that of Warren and Fennell : According to Hubbard the-
conversation was concerned principally with Hubbard's plans to,
lease bus lines from the respondents and a short digression was made
at the instance of Hubbard to the subject of "the union " when the-
latter asked Riter what he thought about "the union" and what was.
going to be done. Riter expressed opposition to "the union" and
asked why the men had not considered the matter with Riter. This,
Hubbard testified , constituted in its entirety the scope and substance
of the discussion and of Riter's remarks. A document , identified
by Fennell as the one he had prepared during the course of his visit
to Hubbard 's home and as the one which Hubbard had signed and
Fennell had witnessed, was thereupon handed to Hubbard by coun-
sel for the Board for the purpose of refreshing the recollection of
the witness as to the remarks of Riter on September 16, 1937. The
document accorded with the testimony of Warren as to the - substance
of the conversation between Hubbard and Riter and- contained an
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional remark attributed to Riter to the effect that the bus
drivers ought to get together with Riter and notify Fennell that
they had withdrawn from the Brotherhood. Upon being handed the
document, Hubbard identified as his own the signature which ap-
peared on it. Thereupon counsel for the Board asked the witness
to state whether Riter had made any remarks on the date in question
to which the witness had not already testified, and the witness replied
that he did not remember, explaining that there were statements
ascribed to Riter in that document which he could not recall. Asked
whether the statements contained in the document were true and
correct, the witness first replied in the affirmative and then varied
his answer by saying "I don't remember them, whether they are true
and correct, or not." He further varied his answer by stating that
certain portions of the document were in fact not true and correct
and indicated these portions as statements apparently attributed to
Biter that the latter had $20,000 in "cold cash" to beat the union,
that he would sell out or lease his "bus company" and go back to
the farm,, that there would be blood shed "over this thing," that, lie
would rather be in Alcatraz than "in this thing," and that the. oper-
ators ought to get together with Riter and notify Fennell that they
had withdrawn from the Brotherhood. Hubbard could not remember
at the hearing whether he had related to Fennell at the time the
writing was made the statements which he designated as being
untrue and incorrect. Upon further questioning, Hubbard also tes-
tified that he could not remember whether Riter had made the state-
ments referred to by the witness as being untrue and incorrect. His
testimony on this point closed with the statements that the document
in question was the only one of its kind he had ever signed; that
he believed the document had been prepared by Fennell during the
course of a conversation between Hubbard and Fennell, "and he
taken it down that way"; that Hubbard signed the writing prepared
by Fennell as soon as the conversation closed; but that he 'Would
swear that Riter never made the statements previously, pointed out
as untrue and incorrect.
Riter denied that he had, during the course of the conversation
in question, made the statement, to which Hubbard testified. We find
Riter's denial to be unworthy of credence, in view of his admission
that he had told Warren on the day following the interview with
Hubbard that he imagined "if you boys were going to join a union
or any organization you would probably discuss it with me before
you have taken any steps;" a remark substantially, similar to the
one ascribed to Biter, in the, first, part of Hubbard?'s' testimony, and
in the statement signed by Hubbard.
The, Trial Examiner's reaction to Hubbard's testimony,, on the
written statement was that "it is very evident that Hubbard's present
DIXIE MOTOR COACH CORPORATION 889
faulty memory and his attempt to repudiate his written statement
were due, not only to the fact that he is now an employer, but also
to the fact that he is now under a financial obligation .to one of the
respondents." We have no reason to doubt the testimony of Warren
and Fennell that Hubbard in fact attributed the statements contained
in the document to Riter. Nor do we question the truth of Warren's
testimony regarding Hubbard's report to him on the evening of
September 16, 1937, of the conversation between Hubbard and Riter.
We find, also, as did the Trial Examiner, that Hubbard's apparent
inability to recall whether Riter had in fact made the statements
appearing in the written document which varied from Hubbard's
actual testimony and his final denial in that regard were occasioned
by the change in his relationship with the respondents from that
of employee to that of lessee and fellow-employer and by the
attendant loss of his former interest in the Brotherhood and in the
respondents' bus drivers. We believe that Hubbard, an employee
of the respondents and an active Brotherhood supporter in Septem-
ber 1937, accurately reported to Warren and Fennell the substance
of his conversation with Riter and that the statements attributed
to Riter in the document were in fact made.
Riter's animus toward the Brotherhood and his projected plan
of action to combat its pending request for recognition during this
period, as reflected in his conversation with Hubbard, are further
revealed in an exchange of comments between him and Jessie Port-
wood. The latter testified that one morning, during the month of
September 1937 Portwood asked Riter while he was visiting the
Trailways 'Coffee Shop, operated by Portwood for the respondents,
what he thought would be the outcome of "this union activity"
and that Riter replied that he did not know but that "it looks like
they have me on the spot, if they don't withdraw." He had, how-
ever, Portwood testified further, "one consolation," i. e., he could
sell his business, because "I will refuse to work organized labor."
Riter's testimony is that, while Portwood was operating the coffee
shop, he visited it every morning and engaged in casual conversa-
tion with her; that his exchange of comments with her in Septem-
ber 1937 was of no different a nature from what it had been earlier ;
and that he at no time had any conversation with her concerning
the union or union activities. In view of Riter's general denials
throughout the course of his testimony on direct examination, varied
by some significant admissions elicited from him on cross-examina-
tion, in view of the numerous inconsistencies apparent in his tes-
timony, and in view of the plausibility, under the circumstances,
of Portwood's statements at the hearing, we are unable to credit
his rebuttal of the Portwood testimony, and we find accordingly.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conversations of Riter at points outside of Dallas concerning
the Brotherhood appear to have been paralleled , to some extent, by
Jameson at Dallas. Warren testified to two discussions he had had
with , Jameson, superintendent of drivers , on two occasions during
the period following the appearance of the advertisement in the
Dallas Journal . In these conversations Jameson asked Warren to
comment on the report that he was the leader of the "labor move-
ment"; inquired why the drivers "would join up with a union outfit
like that" without first consulting him or Riter; suggested that, if
organization was necessary , they should have affiliated themselves
with the union in which drivers of the Tri-State Transit Lines were
represented ; and stated that Riter had previously boasted to two of
his competitors , Bowen and Patterson , that his men would not join
a union. Warren protested that they had joined the Brotherhood
because of the need for a strong organization ; that Jameson was not
privileged to tell the men what labor organization to join; and that
the men would exercise their own choice.
Portwood 's testimony is that after the drivers had designated the
Brotherhood as their bargaining representative Jameson suggested,to
her that "when those guys come in here that signed up with that
union just ignore them. Don't even speak to them ," explaining that
such treatment would "hurt them more than anything ." When Port-
wood protested that compliance with Jameson's suggestion would
mean loss of the drivers ' custom at the coffee shop, Jameson replied
that it did not matter whether or not the men ate at the coffee shop
and that "Mr . Riter will stand by you in this."
During the course of his testimony , Jameson denied having had a
conversation with Warren or Portwood about "the union " and specifi-
cally denied all portions of the testimony of the two witnesses on
this point. On cross -examination Jameson stated that he had made
it a habit to talk with Warren from time to time because Warren
was "a pretty good sort of fellow to talk to "; that he had no reason
to believe on the date of the first alleged conversation with Warren
that the latter had not authorized the Brotherhood to represent him;
that since this was Jameson's first experience with union activity he
was "a bit curious" about the organizational efforts of the drivers on
the date of the first alleged conversation , his curiosity having been
initially aroused by Fennell 's claim of majority on September 15;
and that he "would always like to have more information " than he
had at the time of Fennell 's first meeting with Riter . Jameson
could not, however, remember having had any conversation with
Warren in September 1937 which dealt with matters outside the regu-
lar routine of their duties . The witness stated that Patterson and
Bowen frequently visited Riter on the respondents ' premises; that he
DIXIE MOTOR COACH CORPORATION 891
was certain he had seen them both under those circumstances during
the year 1937; that he had heard that the Bowen bus lines had been
having some "labor trouble" in 1937; and that labor unions had
constituted an interesting subject of conversation during the year or
year and one-half preceding the hearing.
More specifically with respect to the circumstances surrounding
the alleged conversation with Portwood, cross-examination of
Jameson elicited the following testimony : He had known Portwood
about 5 or 6 years at the time of hearing, having patronized the cafe
at which she had been employed prior to her association with the
respondents and, having been instrumental in obtaining her services
for Riter in the management of the coffee shop. After she became
manager for the respondents, he visited the coffee shop frequently
and talked with Portwood from time to time while partaking of the
food served in the shop, addressing her as "Aunt Jessie" and "Pete"
and being addressed by her as "Joe." We believe and find, in view
of the nature of Jameson's testimony, that the alleged conversations
.With Warren and Portwood took place in accordance with the testi-
mony of these two witnesses.
We find that the statements of the respondents' management and
supervisory officials constituted interference with the right of the
respondents' employees to self-organization and to collective action
through representatives of their own choosing. Coupled with the
act of inserting the newspaper advertisement for 50 bus drivers, both
occurring at a time when the Brotherhood's request for recognition
was outstanding, such statements reveal the respondent's plan to
compel withdrawal of support from the Brotherhood and thereby to
defeat the Brotherhood's majority claim and free the respondents of
their duty to recognize and deal with that organization.
The respondent's efforts during the period now under consideration
became further manifest in the granting, without prior notice, of a
wage increase of 5 per cent to all employees on September 17 or 18,
operative as of the first half of that month, and in adjusting dis-
parities in the salaries of certain classes of bus drivers. The un-
contradicted testimony of the respondents' drivers is that no general
wage increase had, up to that time, been effected by the respondents
for about 4 years. The respondents' office manager, in charge of the
preparation of the respondents' pay roll, testified that he was directed
by Riter, a few days before the checks for the first half of September
were written and distributed, to increase the pay roll by 5 per cent.
Riter testified that he had been considering the general increase as
early as July or August and had planned to make it effective as soon
as certain outstanding debts had been discharged by the respondents
and that. there was no causal connection between the granting of the
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase and the Brotherhood's activities. We find, on the basis of
the evidence as hereinbefore discussed, that the respondents aug-
mented the salaries of their employees at this time as a further
device for discouraging their organizational efforts."
b. The Brotherhood's second interview with the respondents and the
events which followed
On the evening of September 21, 1937, 16 or 19 drivers of both
respondents, together with Fennell and two other Brotherhood rep-
resuntatives, held a meeting for the purpose of electing a committee
to meet with Riter the following morning. According to the wit-
nesses called by the Board, the invitation for the meeting with
Riter was extended by the latter. Warren testified that Riter had
informed two of the drivers that he was desirous of meeting with a
committee of his "old men" and had suggested names of drivers
whom he considered as falling within that classification. Warren
objected to Riter's method of selection and with the aid of some of
his fellow drivers arranged for the meeting which was held on Sep-
tember,21. Although Riter stated at the hearing that the initiative
for the conference was assumed by the drivers, there is substantial
evidence which leads us to believe and find that the interview with
Biter took place at the latter's behest. Those present at the meeting
of September 21 elected a committee of four drivers, two representing
each of the respondents, to meet with Biter and to request that he
recognize the Brotherhood. Fennell prepared and handed to the
spokesman for the committee, for submission to Biter, a document
entitled "memorandum of agreement." The document, in the form
of a proposed agreement to be executed by the Brotherhood and the
respondents, provided that it was mutually understood by the parties
that the Brotherhood, by virtue of its majority representation, was
the exclusive representativ a of the respondents' motorbus drivers and
that representatives of both parties would thereafter confer as to
working conditions in an effort to reach an agreement.
The committee accordingly met with Riter on the morning of
September 22. By arrangement between Fennell and the committee
members, it was agreed that the former would wait at a point near
the respondents' premises, with the authorizations in his possession,
until Riter asked to see the authorizations, at which time one of the
8 See Matter of The A . S. Abell Company, a Corporation and' International Printing and
Pressmen's Union , Baltimore Branch, Baltimore Web Pressmen's Union No . 31, 5 N L R. B.
644, enf'd as mod., N. L. R. B. v . A. S. Abell Co ., 97 F. (2d ) 951 (C. C. A. 4) ; Matter of The
M. H. Ritxwoller Company and Coopers ' International Union of North America, Local
No 28, 15 N . L R B 15, enf ' d as mod , The M H. Ritcwoller Co V. N L R. B, May 8,
1940 (C. C. A. 7) ; Matter of Hercules-Campbell Body Co., Inc. and United Automobile
Workers of America, 7 N L R . B. 431.
DIXIE MOTOR COACH CORPORATION 893
^comniittee members would so inform Fennell and he would produce
them to prove the Brotherhood 's majority.' There is some indication
in the record that this arrangement was to go into effect after Biter
signed the "memorandum of agreement " recognizing the Brotherhood.
Three of the four committee members testified , in substance, as
follows concerning the nature of their interview with Biter : When
the committee entered Riter's office , he opened the interview by stat-
ing that he wanted to have a "heart to heart" talk with the "boys"
in an effort to arrange a settlement of the differences on both sides
without the medium of an organization . He suggested further that,
if the drivers had in fact decided to enlist the aid of a labor organi-
zation, there were organizations other than the Brotherhood which he
wanted them to investigate before accepting the Brotherhood. After
further remarks in a similar vein by Riter, the committee 's spokes-
man explained that the committee had been elected to request recog-
nition of tlra Brotherhood and, handing Riter the "memorandum of
agreement," added that the committee would engage in a collateral
conversation with Biter on other subjects after the latter recognized
the Brotherhood by signing the document.
Riter read the "memorandum of agreement" but refused to sign
it and, upon request, was permitted to retain it in his possession.
After a few moments, ' Riter proceeded to conclude the conference by
saying, "Well, I guess there is nothing more to talk about," at which
point the committee members rose and prepared to leave the office.
Biter beckoned to them to stay and thereupon read aloud for about
15 -minutes from an article appearing in a publication which the
committee members believed to be a magazine entitled the Texas
Parade. The article, in so far as the witnesses were able to recall,
dealt with the Act and with its probable invalidity and led the
committee members to believe that if they continued their organiza-
tional plans under the aegis of the Brotherhood they would not
enjoy the protection of the Act. The article appears to have evoked
no comments from Riter or the men, and the committee thereupon
proceeded to leave Riter's office . In the course of their ' exit, one
of the committee members turned to Riter and asked him not to
feel that his drivers had "turned against him" by joining the
Brotherhood , as they felt that they needed an organization to
achieve a general seniority policy and other improvements in their
working conditions . Rites replied that he did not "feel hard"
toward the drivers and that he considered the four committee mem-
bers "the best men" in his employ . Thereupon the committee left
and reported the results of the conference to Fennell.
Biter denied that he had made the preliminary statements at-
tributed to him by the three committee members but admitted having
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read to them from the magazine and supplemented their testimony
on that point by stating that the article was one entitled "Employers
Still Have Some Rights." It declared, according to his testimony,
that employers had a right to protect their business. He stated
further that he was unable to produce a copy of this article or of the
magazine in which it appeared. With respect to the request for
recognition, Riter testified that after glancing at the "memorandum
of agreement" he refused to sign the document, explaining to the
committee that he did not think the Brotherhood represented a_
majority of the drivers and that Fennell had,,on an earlier occasion,
insisted that he would not comply with Riter's request to substanti-
ate his majority claim until Riter signed an agreement recognizing
-the Brotherhood. The committee members stated at the hearing that
Riter did not question the Brotherhood's majority status, that the
subject of proof was not mentioned by either party at the conference,
and that if Riter had asked to see the authorizations the committee
would have summoned Fennell who was waiting nearby for exactly
that contingency.
We find the testimony of the three committee members as to the
circumstances and substance of this conference to be credible. We
can not credit either Riter's denials or his testimony that he re-
quested the committee to substantiate the Brotherhood's claim of
majority, since the tone of the conference clearly indicates Riter's
unwillingness to recognize the Brotherhood under any circumstances
and his marked disposition, already manifested by the earlier acts
of the respondents as hereinbefore discussed, to discourage adherence
to the Brotherhood.
The second request of the Brotherhood for recognition was
countered by more direct attempts on the part of the respondents to
dissipate the Brotherhood's majority than those which had followed
Fennell's first visit with Riter on September 15. A few hours after
the second futile attempt by the Brotherhood to gain recognition as
the duly designated representative of the respondents' drivers,, the
respondents launched an active campaign to compel those who had
signed authorizations or applications to revoke their designation of
the Brotherhood or their request to be admitted to membership
therein. Simultaneously, and in pursuance of the same basic pur-
pose, the respondents sought, by various devices, to diminish the
influence of the four committee members among their fellow drivers.
Some time during September 22, after the committee had un-
successfully sought Riter's signature to the "memorandum of agree-
ment," a petition was prepared and circulated for signature among
the respondents' drivers at Dallas by one Hurley, a joint employee
of both respondents who had openly opposed the Brotherhood and
DIXIE MOTOR COACH CORPORATION 895
had, not signed an authorization or application. For several days
thereafter it was presented to drivers stationed at points outside
Dallas. The testimony of some witnesses is that 'they were asked to
sign two petitions, a procedure explained to them by Hurley as
warranted by Riter's demand for a copy. Addressed to Fennell,
the petition stated that "after thoroughly considering our applica-
tions, we have fully made up our minds that we do not care to belong
to any union. 'You are therefore instructed to cancel our applica-
tions for membership in the Brotherhood of Railroad Trainmen."
The petition as mailed to and received by Fennell bore the signa-
tures of 43 drivers. Several drivers who were stationed in Dallas
at that time testified that Hurley had threatened them with loss of
their employment, or with more stringent requirements in connec-
tion with the performance of their duties if they failed to sign, or
with the statement that Riter was giving them just one chance to
abjure their interest in the Brotherhood. On the day- of the ap-
pearance'of the petition, Fennell was notified of its circulation and
of the threats which accompanied its presentation, and accordingly
instructed his informant to notify all drivers who had executed
authorizations or applications to sign the petition upon request in
order to safeguard their jobs, explaining that the withdrawals from
the Brotherhood as thus effected would not be considered valid be-
cause of the apparent coercion in their execution. Fennell also sug-
gested to his informant that he thought it would be advisable if
two or three drivers refrained from signing the petition. Fennell's
instructions were thereupon accorded wide circulation throughout
the respondents' system.
Hurley testified that the idea for the petition originated with him
on the day of its circulation and that he had justified his action in
that regard to Warren by stating that if the latter vas privileged
to request' the drivers to join the Brotherhood Hurley was similarly
free to persuade them to the contrary. After concluding that a
petition should be circulated and after discussing the matter with
some of the drivers whose names he was unable to recall at the hear=
ing, Hurley explained his idea to one Jack Hart Warren, employed
as a bookkeeper by the respondents, and left with her the assignment
of composing the petition and typing it. The bookkeeper thereupon,
during general office hours, complied with Hurley's request, using
the respondents' typewriter and stationery. She was assisted by
Hurley only to the extent that he gave her Fennell's address, which
he obtained from one of the drivers whose name he could not recall
at the hearing. When the petition was ready for circulation, Hurley
began to approach the drivers at Dallas for their signature, explain-
ing to them, according to his testimony, that some of the boys were
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signing out of the union, asking them to read the petition, and sug-
gesting that they use their independent judgment in determining
whether or not to comply with his request. Some of the drivers thus
approached replied that they wanted to sign the petition, while
others stated that they had been directed to sign anything that-Hur-
ley presented to them for signature. Although Hurley denied hav-
ing threatened or intimated loss of their jobs to the men he
approached, he did testify to the following exchange of remarks
between himself and one of the drivers at Dallas: Hurley walked up
to the driver in question and said, ". . . the boys are signing out of
the union. Would you be interested?" to which the driver replied,
"Hell, no, I don't give a God damned if I get fired; the job ain't
worth a God damn no how." Later that evening, Hurley stated, the
driver sought him out and signed the petition. At about the same
time, another driver who had previously resisted Hurley's request
also asked, in the following manner, to be permitted to sign :
. .. you have got me whipped. I am ready to sign it."
On the night of September 22, after he had circulated the petition
among the drivers stationed at Dallas, Hurley started on a tour of
out-of-Dallas points. His testimony as to his itinerary and its
attendant achievements and consequences may be summarized as
follows : Some time after 11: 30 p. in. on September 22, he left Dallas
for Denton, Texas, in his own automobile, driving about an hour and
10 minutes. From Denton lie drove on to Gainesville, Texas, a dis-
tance of about 60 miles. His next stop was Paris, Texas, -where he
arrived at about 6 o'clock on the morning of September 23. He then
proceeded on to Texarkana, Texas, where he was joined for part
of his tour by one Smith, mechanic for Dixie at the Texarkana shop.
The need for a companion at this point was occasioned by Hurley's
fatigue and by his consequent desire for relief from driving; the
choice of Smith was based upon his superior knowledge of stations
and schedules to be encountered during the next phase of the tour.
Hurley and his aide then drove to Hot Springs, Arkansas; thence
to a station in a small town, whose location Hurley could not recall,
and finally returned to Texarkana. Hurley completed his travels by
returning from Texarkana to Dallas, arriving at his ultimate desti-
nation at about 1 or 2 o'clock on the morning of September 24 and
going home to bed immediately. He could not recall whether or not
he resumed his regular work with the respondents on the evening of
September 24 or whether he spent that entire day sleeping.
At all points to which his itinerary took him Hurley approached
the respondents' drivers at the station, or while on duty, or at their
homes and handed them the petition. At Denton and Gainesville
he visited some of the drivers at their homes during the early hours
DIXIE MOTOR COACH CORPORATION 897
of the morning and aroused them from sleep. One of the drivers
this awakened greeted his nocturnal visitor with the question of
"what in the hell" Hurley was doing at his home at that hour of the
night. Hurley explained his unusual procedure by replying, "Thee
boys is getting up a petition and drawing out, and I came by to see
if you wanted to sign." Hurley's host thereupon proclaimed his
readiness to sign and added his signature to the list already on the
petition. Two other drivers, whose sleep had been similarly dis-
turbed, appeared to have entered into no colloquy with their guest
and signed the petition "without hesitating a moment." Zeal for
thoroughness in the performance of his task also caused Hui-ley to
hail at least one of the drivers while the latter was engaged in
-driving a bus on the road and to summon him to halt and park by
,waving at him with a flashlight. Little difficulty was encountered
'by Hurley in obtaining signatures to the petition among the out-of-
Dallas drivers. Most of them informed hun of their anticipation
of his arrival and told him that Warren had directed then to sign
anything presented to them by Hurley.
During the course of his uninterrupted tour Hurley had traversed
a total of over 700 miles of the States of Texas and Arkansas, a
factor occasioning the purchase of two new tires at Texarkana,
because, as he explained at the hearing, "When I went over that
gravel road my tires wasn't any too good and it cut them up pretty
bad." He had spent at least 24 hours without sleep and had re-
mained away from work for about 2 clays. He could not recall at
the hearing the amount lie had expended in connection with the trip,
his memory being completely bank even as to the ,price lie had paid
for the new tires. When Hurley had 'gathered all the signatures
he thought be could get, he 'mailed the petition to Fennell by regis-
tered mail on September 28, Jack Hart Warren having addressed
the envelope.
Witnesses for the respondents denied any knowledge or sponsor-
ship of Hurley's activities in this regard, Riter testifying that he
had learned for the first time of the withdrawals either at the end
of 1937 or the beginning of 1938. Other evidence, however, plainly
belies these denials, and we consequently do not, credit them. In
statements which we have already found Riter had made shortly
after the appearance of the newspaper advertisement for 50 drivers
' Riter had alluded to the revocation of authorizations as a means of
removing the problem created by the Brotherhood and suggested
that the drivers get together and notify Fennell that they had with-
drawn from the Brotherhood. Thus the events which came to pass
immediately after the committee's interview with Riter on Septem-
'her 22 had already been contemplated by Riter after his first meeting
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Fennell. A letter sent by Riter to Fennell on September 27
stated that the former had been apprised of the withdrawals. The
vagueness of Hurley's reasons for circulating the petition and his
assumption of the arduous duties and expenses which attended its
circulation would, standing alone, be sufficient basis for an inference
that he was not prompted by an inner conviction of the righteousness
of his cause or by sheer philanthropic motives. The evidence shows
that at the time lie assumed the task of defeating the Brotherhood's
majority Hurley had been in the employ of the respondents for over
10 years and had on several occasions been relieved of the regular
duties of driving a bus to be stationed at Dallas. In the, course of
his work at Dallas he had at least once ordered a driver who had
refused to go out on a schedule to turn in his badge and equipment.
Before the driver was permitted by Jameson to return to work, he
was required by Jameson to adjust the matter with Hurley. Many
,of the drivers regarded Hurley as a supervisor, although he was at
times assigned to a regular schedule. It is consequently clear why
the respondents would, and did in fact, select Hurley as their agent
in carrying out the plans which Riter had already formulated for
combatting the Brotherhood's claim of majority. The record also
contains evidence of statements by Hurley to witnesses whose testi-
mony we believe that he had promised Riter he would not join a
union and that he would break up the Brotherhood. The respond-
Qnts' sponsorship of Hurley's activities in this regard is further mani-
fested by Jameson's testimony that part of the month of September,
including the period of Hurleyy's absence from work at which time he
was assigned to a regular driving schedule, is considered a busy
season and drivers are needed at their work. Moreover, the respond-
ents' pay-roll records show, according to the testimony of their office
manager, that Hurley received his full salary, except for certain
standard deductions, for the period from September 15 to October 1,
1937, although they reflect the fact that he drove only half his regu-
lar schedule on September 22, that he did no driving on September
23 but "was working at various other things," and that from Sep-
tember 24 through September 30 he drove no schedules, the records
not indicating whether he performed any other duties or services
during tin t week. No explanation was given at the hearing by
Riter or any of the supervisory officials of the payment to Hurley
of his regular salary for the days on which he performed no regular
services for the respondents. We find that Hurley was paid by the
respondents for the time he had devoted to the circulation of the
petition.
Although Hurley and the respondents denied having assumed the
expenses incident to his travels in circulating the petition, we are
s
DIXIE MOTOR COACH CORPORATION 899
convinced and find from the evidence already discussed and from a
conversation which Hurley had with Portwood that the respondents
-paid Hurley for the expenses incurred as well as the time spent in
connection with his activities in this regard. Portwood testified that
shortly after the committee met with Riter, Hurley came into the
coffee shop and displayed a wad of money which lie said Riter had
given him and that at a later time on the same day Hurley visited
her again and told her that Riter had called him into the office, had
asked Hurley what was going to be done about the union activity, and
that Hurley had replied, "if there is a man in the office that can
break this up, I can." Hurley thereupon, according to Portwood's
,testimony, leaned over to the witness and said, "Aunt Jessie, if I don't
have this busted to hell by this time tomorrow night, I will buy you
the best hat in Dallas." Portwood testified further that 3 or 4 days
later Hurley again came into the coffee shop and told her that all his
expenses had been paid while he was away on his trip and that he
had acquired two new tires for his automobile. Although Hurley
denied having made these statements to Portwood, we find, in view
of their plausibility under the circumstances, that they were in fact
• made and were a true report of the arrangements between Hurley and
Riter. ' We find that the respondents authorized and sponsored Hur-
ley's acitvities in obtaining the employees' signatures to the petition
and that all acts performed by him in that regard, are the acts of the
respondents.°
Almost concurrently with Hurley's efforts to secure signatures for
the petition, Marion Wallace, an operator for Sunshine who had not
signed an authorization or application for membership, assumed the
task of distributing among the drivers for their signature typewritten
letters informing Fennell that the signer wished to withdraw his
application for membership in the Brotherhood. Drivers who signed
these letters testified that they were moved to do so by the same con-
siderations which led them to sign the petition. Although it is not
clear from the record how 'many letters of this kind were sent to
Fennell, it is indicated that all were sent by registered mail, the
sender directing the postal authorities to deliver the return receipt to
the signer at the latter's address. Witnesses who testified that they
had signed such letters stated that they had not inserted them in
envelopes, mailed them, or paid the cost of their mailing. Wallace
'identified some of the letters and envelopes shown to him at the hear-
ing as those he had circulated and mailed and on which lie had paid
the postage, amounting to 20 or 25 cents in each case. One of the
O Matter of The Serrick Corporation and International Union, United Automobile
Workers of America, Local No. 4j9, 8 N. L It. B. 621, enf'd International Association of
Machinists v. N. L R. B., 110 F. (2d) 29 (C. A. for D. C.), cert. granted , 60 S. Ct. 721,
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers testified that he had refused to sign a letter at the request of
Wallace but that later, when he learned that most of the drivers at
Dallas had signed the petition and that the Brotherhood had permit-
ted that action, he went to J. C. Riter, in charge of the respondents'
traffic department, and asked the latter for "one of those letters that
they were signing and withdrawing from the Brotherhood." J. C.
Riter replied that he had the letter in question and, taking one from
his desk, handed it to the witness. The latter noticed on that desk
letters which appeared to be similar to that which J. C. Riter handed
him. J. C. -Riter commented to the witness at that time that the
others had signed a petition, which was then out of town, and "some
was signing those individual letters." The witness thereupon signed
the letter in J. C. Riter's presence and returned it to him. Although
he received a return receipt for that letter, the witness testified that
he did not mail it. J. C. Riter did not testify, and we believe the
testimony of the driver in question.
Wallace testified that Jack Hart Warren, the bookkeeper, composed
the letters and wrote them on the respondents' typewriter during gen-
eral office hours, using the respondents' stationery, after he had ex-
-plained to her that some of the drivers wanted to withdraw from the
Brotherhood and asked her to prepare the necessary communications.
She also addressed the envelopes in which the signed letters were en-
closed, obtaining the return address of the signer f rom the respondents'
records. Like Hurley, Wallace gave no clear explanation at the hear-
ing of the reasons which prompted his action and denied that such
action was inspired by the respondents.
The respondents denied that they had directed or approved the
efforts of Wallace. They offered proof to show that Jack Hart War-
ren's assistance to Hurley and Wallace was unauthorized and that the
nature of her employment with the respondents was such that, unlike'
all other office workers, she was not required to observe regular work-
ing hours and was free to come and go as her work permitted. The
evidence shows, however, that she did in fact adhere to the general
office routine with respect to hours of work. We do not consider the
respondents' explanation of Jack Hart Warren's status satisfactory,
and we find that she assisted Hurley and Wallace in,the course of her
regular duties and pursuant to authorization of the respondents.
Choice of Wallace by the respondents for the execution of a task sup-
-plementary to that assigned to Hurley is indicated by the fact of
Wallace's long employment with the respondent Sunshine and by his
,close association with Riter. Wallace testified, in the latter connection,
that he visited Riter's farm "every chance I get" and more frequently
than any of the other drivers; that he customarily stayed at the farm
"all-the time I'm not working and I can get off"; and that he acted as
Riter's personal chauffeur "when he will let me." In addition, Wallace
DIXIE MOTOR COACH CORPORATION 901
had been opposed to the Brotherhood and had clearly indicated his
attitude in that regard by refraining from signing an authorization
or an application for membership. The respondents' pay-roll records
show that Wallace was paid his regular salary for the period during
which he distributed the withdrawal letters. We find that the re-
spondents, by the participation of J. C. Riter, a management repre-
sentative, and by the activities of Wallace, sponsored the distribution
of the withdrawal letters 10
To assure themselves against opposition in their plant to defeat the
Brotherhood's majority and to consolidate the results of that plan,
the respondents determined that drivers who had prominently sup-
ported the Brotherhood must be subjected to treatment which would'
bring about a dinuznition of their influence among the employees with
whom they came in daily contact and whose support they had solicited
for the Brotherhood. Consequently, the four members of the com-
mittee which had unsuccessfully attempted to gain recognition for
-the Brotherhood on September 22 were singled out for treatment
designed to achieve the respondents' determination. The committee
consisted of F. C. Styles, A. J. Phillips, as spokesman, M. W. Warren,
and W. M. Barney. The first victim of the respondents' plan to,
banish the Brotherhood from the sphere of organizations available-
to its employees was Styles. He had refused to sign the petition pre-
sented to him by Hurley when the latter first circulated it in Dallas.
On the evening of the clay on which the committee had met with
Riter, Jameson asked Styles to see him early the following morning.
Styles testified as follows concerning the events of the following
morning : When he arrived at the respondents' premises, Jameson
handed him a salary check and said "Styles, I don't know any man I
hate to do this to more than you, but you know I work for this com-
pany and I have to take orders like you do." In reply to Styles' ques-
tion as to whether he had"been derelict in handling cash fares, Jameson
stated that his record had always been perfect, that his cash and
accident records were good, that he was a good driver and easy to get
along with, and that if there were another bus company across the
street there Would be no reason why Styles could not obtain employ-
ment with that company. Then Jameson commented as follows :
"For the last 30 days you haven't been worth a damn to yourself or the
company. You got sucked into something you didn't know anything
about; but it cost you your job." Styles retorted that he did know
what it was about. As Styles was leaving, Jameson cautioned him
to stay away from the respondents' premises thereafter in order to
avoid "trouble." No other reason for the discharge was given to
Styles by Jameson at that time.
10 See footnote 7, supra
233G3G-42-N of 2. 58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jameson testified that, at the time he discharged Styles, he called
:Styles' attention to reports on fast driving and "carelessness with the
company's business ," pointing specifically at that time to two in-
stances during the 15 days preceding the discharge in which Styles
had carried passengers beyond their destination and on which Styles
himself had reported to Jameson . Although Jameson could not recall
at the hearing that Styles had asked him whether the discharge had
been occasioned by his cash -fare record , he denied having told Styles
that his record in the cash business and as to accidents had been good
and then stated , "I didn't say it that way ." He admitted , however, that
he might have made the remark assigned to him by Styles with refer-
ence to his record in the cash business , since Styles ', performance in
that regard had been satisfactory . With respect to Styles ' testimony as
to his accident record, Jameson did not think that either he or Styles
had adverted to that subject during the course of the conversation.
Although Jameson denied having made the statements as to Styles'
not having been "worth a damn" during the last 30 days of his em-
ployment and having paid the price of discharge for having got him-
self into something of which he knew nothing , he testified that for a
month or two prior to the termination of his employment , Styles
had seemed to be troubled about something and could, therefore, not
perform his work "just right." Jameson admitted that he had asked
.Styles to stay away from the respondents ' premises and that the
request was made in accordance with. an established practice based
,upon his experience that when men who are discharged return to
the scene of their former employment they tend to neglect their duty
to seek other employment and make nuisances of themselves by loiter-
ing around the respondents' premises. Jameson explained that his
information as to Styles' fast driving had been obtained from Riter
and that the latter's source was the respondents ' checkers. Asked
by counsel for the Board whether he would'have given Styles a letter
of recommendation upon request at the time of his discharge, Jame-
son replied that he would have had a conversation with Styles before
acceding to that request for the reason that "Mr. Styles made us an
awfully good man but at the time he was discharged he wasn 't as good
a man as he had been in the past. " Later in the course of his testi-
mony, Jameson stated that it was his policy , as superintendent of
drivers entrusted with the responsibility of training and guiding his
-subordinates , to discuss with the men the progress and quality of their
work and to "give them every chance in the world " to correct their
mistakes.
Riter's explanation at the hearing for Styles ' discharge was that
he had been tampering with the governors on his buses, that he had
DLXIE MOTOR COACH CORPORATION 903
had a bad accident record and "naturally was going wild," and that
he had been guilty of insubordination. He admitted, however, to no
independent recollection of when complaints had been received as
to tampering with the governors and as to when the accidents, if
any, had occurred but stated that he knew that Styles "was always
doing something and then lying about it." With respect to the
charge of tampering with the governors, the testimony of Jameson
and Styles is that at the time of the discharge no mention was made
of that point and that allusions were made to it for the first time
several months after Styles had been discharged. Jameson's testi-
mony is that the respondents did not at any time accuse Styles of
this impropriety but merely suspected him of it.
It is apparent from the disagreement between Jameson and Riter
as to the reasons for Styles' discharge, from the generality of Jame-
son's statement that Styles' performance as a driver had not been so
good during the months of August and September, a period coinci-
dental with that of the promotional efforts of the drivers, from the
fact that Styles' employment was terminated on the day following the
committee's interview with Riter, and from Jameson's instructions to
.Styles to stay away from the respondents' premises, that the termina-
tion of Styles' employment was occasioned only by his prominent
championship of the right to self-organization and collective bargain-
ing and was effected for the purpose of interfering with the exercise
of that right by Styles and by his fellow drivers.
About 3 months after his discharge, Styles was reinstated by the
respondents to a run which some of the drivers, including Styles,
considered the most difficult of all assignments.
The second object of the respondents' determination to remove their
drivers from the influence of Brotherhood protagonists was A. J.
Phillips, spokesman for the committee. On September 23, after
Phillips had completed his schedule and while he was preparing to
start out on another, Jameson directed him to make out his report and
to collect his check. According to Phillips' testimony, he asked
Jameson the reason for this procedure and Jameson replied, "You got
a lot of nerve asking that question after what you have done." When
Phillips insisted that he was entitled to some explanation in view of
his 12 years of service with the respondents, Jameson stated that he
had no reason for handing him his check at that time but that Riter
had said it was his physical examination and the condition of his
head. As Phillips was preparing his report, Jameson commented to
him as follows: "Son, I have done a lot of things in my life that
hurt me, but this tops them all." Thereupon he asked Phillips to
turn in his-tools and equipment and Phillips complied with the request
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and left. The check which Phillips had received was for an amount
equal to what he would have been paid if he had worked until
October 1.
Thereafter and before the end of the month, Phillips talked with
Biter on two occasions on the respondents' premises in an attempt to
determine the reason underlying Jameson's treatment of him on
September 23. Riter told him not to worry and to take a rest until
the beginning of October. Plans were made during the interview
with Riter for Phillips' return to work.
Jameson and Riter testified that Phillips was not discharged but
had been laid off because of his health. Jameson testified that Phil-
lips had been assigned to a heavy and fast schedule at the time of
his lay-off and was required to remain away from home every other
night; that Riter had told Jameson on September 22 that Phillips'
wife had complained to Riter about the onerousness of her husband's
work and had asked for a change in his schedule because of his im-
paired physical condition ; and that Riter had directed Jameson to
pay Phillips for the entire second half of September, saying they
would work out a solution for Phillips' difficulties. Jameson denied
that he had told Phillips the latter "had a lot of nerve" asking the
reason for his discharge "after what" Phillips "had done," but ad-
mitted that he had said very little to Phillips about his physical
condition at the time of the alleged lay-off, explaining at the hearing
that Biter was better acquainted with the circumstances of the lay-off.
He admitted that he had asked Phillips to turn in his tools and
equipment and that he had not consulted Phillips with respect to the
condition of his health and as to whether he wanted the enforced
vacation.
Riter testified that Phillips' wife had talked to him on several occa-
sions about her husband's health and that shortly before the lay-off
of Phillips he had visited Mrs. Phillips and had inferred from her
conversation that she wanted him to change her husband's assignment
and to allow him to take a rest. Biter accordingly decided to comply
with the requests implied in Mrs. Phillips' conversation and directed
Jameson to pay him for the remainder of the month and to permit
him to take a vacation. He admitted, however, that he had not dis-
cussed with Phillips the latter's physical condition before the decision
to grant him a vacation; that no other driver had ever been laid off
because of his health without prior consultation with the driver and
merely upon a discussion with the employee's wife ; and that he had not
sought the advice of Phillips or his wife or a doctor on the extent of
rest necessary to cure Phillips of his difficulties.
Phillips was returned to work on about October 1, when he was
assigned to a lighter schedule, on which he remained for a few months
DIXIE-MMOTOR COACH CORPORATION 905
and from which he was transferred, without inquiry as to his physical
ability to endure more difficult work, to a heavier schedule. He was
subsequently transferred to an assignment which necessitated the mov-
ing of his household from Dallas to another city.
We find that the respondents seized upon the complaints made by
Mrs. Phillips as a basis for compelling Phillips to remain away from
the drivers with whom he had come in- contact in the course of the
performance of his duties for the respondents, thereby facilitating the
successful outcome of the respondents' efforts to induce their drivers
to withdraw from the Brotherhood.
The respondents' purpose in discharging Styles and in granting
Phillips an enforced vacation is further evident from their treatment
of Warren and Barney, the other members of the committee. On Sep-
tember 27 Warren and Barney were transferred from the schedules on
which they had been for some time to other schedules. Warren testified
that the change in his assignment' and his hours of work resulted in
loss of contact with the 16 drivers he had met on his former schedule
and among whom he had solicited authorizations and applications for
membership in the Brotherhood and in an inability to engage in
organizational work among the men at Dallas. Although Barney did
not testify, it is also apparent that he was removed from contact with
the drivers among whom he had exercised influence on behalf of the
Brotherhood.
Jameson testified that the transfer of Warren and Barney was in-
Icidental to a general shift of schedules which had been effected for the
purpose of adjusting the complaint of one of the three drivers involved,
and that the change merely returned Warren and Barney to schedules
they had had at an earlier date. The evidence shows, however, that
neither Warren nor Barney had been consulted as to the change, that
both had worked for some time, including the period of organizational
activities, on the schedules from which they were transferred on Sep-
tember 27, and that while Warren had earlier been assigned to the
schedule to which he was returned on September 27, he had complained
about it to his superior and had requested a change.
We find that the transfer of Warren and Barney was effected for
the purpose of diminishing their influence on behalf of the Brother-
hood among the respondents' drivers.
c. Further attempts to obtain recognition
On September 26, 11 days after Riter had agreed to reply- within
10 days to the two questions contained in the letter which Fennell
left with him on September 15, Fennell sent Riter a telegram stating
that if no reply was received before 6 p. in. of that day to the request
of the Brotherhood "to be recognized for collective bargaining" it
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be necessary to take legal • action. The following day Riter
wrote to Fennell stating that it was the respondents' intention to obey
strictly the requirements of the Act 'and that at ' any time it could
be conveniently arranged "we shall be glad to consider the evidence
oil your authority to ' bargain collectively with the Companies on
behalf of our employees, however, we have been advised by the major-
ity of our employees that they do not desire that you be authorized
to act in their behalf." Fennell visited Riter in the latter's office on
September 28, presented him with a copy of the "memorandum of
agreement" which the committee had left with Riter 6 days earlier,
and said that he would produce the authorizations then in his posses-
sion if Riter signed the "memorandum of agreement" and agreed to
recognize the Brotherhood provided it represented a majority of the
drivers. Riter refused to sign anything, and Fennell left the office.
Various attempts were thereafter made by the Brotherhood to seek
recognition on the basis of the authorizations which had been
obtained in September of 1937 but all proved fruitless. Thereafter
on April 6, 1938, the Brotherhood filed with the Board its petition for
investigation and certification of representatives.
4. Conclusions as to the refusal to bargain and other acts
of interference
On September 15 the Brotherhood, through Fennell, first enunci-
ated to the respondents the fact of its majority representation. The
respondents contend in their brief that Fennell was without authority
to represent the Brotherhood in view of his testimony that his duties
consisted in part of organizing drivers and of attempting to secure
recognition but did not include the power to bargain collectively
except in emergencies. Without answering the contention as to his
authority to enter into negotiations looking toward the execution
of a contract, it is clear that Fennell was authorized to represent
the Brotherhood in demanding recognition.
At that time the Brotherhood might validly have insisted upon
recognition and upon the fixing of a date, within a reasonable time,
for collective bargaining negotiations, as its claim of majority was
not questioned and was in fact capable of substantiation 11 Instead,
the Brotherhood chose to leave two questions with Riter for his
answer within 10 days : Would he afford the Brotherhood an oppor-
tunity to present the signed authorizations, which it had in its custody,
11 Matter of Remington Rand. Inc. and Remington Rand Joint Protective Board of the
District Council Office Equipment Workers, 2 N L R. B . 626, enf'd , N. L. R. B v. Rem-
ington Rand , Inc, 94 F. ( 2d) 862 (C. C. A. 2), cert. denied , 58 S. Ct. 1046 ; Matter of
Art Metal Construction Company and International Association of Machinists. Local
1.559,. Affiliated with District #65 of the I A M (A. F. of L ) 12 N. L. R. B. 1307, enf'd
Art Metal Construction Co. v. N L . R B, 110 F. (2d) 148 ( C. C. A. 2).
DIXIE MOTOR COACH CORPORATION 907
i n support of its declaration of majority representation ? Would he
agree to recognize the Brotherhood as the collective bargaining agency
for all motorbus drivers upon presentation' of adequate proof of
majority? In view of the nature of subsequent events, it is not nec-
essary at this point to consider the import of the second question and
of the respondents ' duty with reference thereto. From the evidence
of the proceedings of this first conference , it is sufficient to state, and'
We find, that the Brotherhood 's conduct on September 15 reasonably
and unequivocally constituted a request for recognition , to be complied
with in 10 days, and that Riter so understood the significance of that
conduct.
That Riter did not honestly entertain any doubt as to the Brother-
hood's majority claim, that he had no intention under any circum-
stances of acceding to the outstanding request for recognition, and
that he planned to destroy the Brotherhood's representation among
his employees, are inferences of which his subsequent conduct is
clearly susceptible. Had Riter seriously and in good faith enter=
tained a doubt as to the majority and had he in fact been disposed
to accede to the request for recognition if that doubt were resolved
in favor of the Brotherhood, he would merely have afforded the
Brotherhood a reasonable opportunity to convince him, within the
appointed time, of the genuineness of its claim. The state of negotia-
tions at that time required no more of him. Instead, however, almost
immediately after Fennell had left with the expectation of recog-
nition within 10 days, Riter initiated a campaign of persuasion, in-
timidation, and coercion against the employees in the appropriate,
unit for the purpose of compelling the revocation of their designation
of representatives, theretofore freely executed by them. Thus he in-
serted in a local newspaper an advertisement for 50 drivers, a number
paralleling exactly the signed authorizations then in the possession
of the Brotherhood.' Simultaneously with the appearance of the
advertisement, he' toured the out-of-Dallas stations and questioned
drivers on the state of their organizational endeavors, suggesting that
they consider organizations other than the Brotherhood and notify
Fennell of their withdrawal from the Brotherhood. In some of these,
actions he was emulated by Jameson. Then, for the first time in 4
years, he granted a general wage increase to all his employees.
The respondents' determination to disregard the Brotherhood's
pending request for recognition and to alter the Brotherhood's repre-
sentation status among their 'employees is further demonstrated by
Riter's meeting with the committee on September 22 and the circum-
stances under which that meeting was held. As we have found, Riter
had designated two employees as general emissaries to communicate
to the drivers his desire to meet with a committee of "old men" and
had suggested the constituency of the committee to be named by the
'908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'drivers for that purpose. Thinking that the meeting might be con-
'cerned with the Brotherhood's unfulfilled request for recognition or
with its general status and believing that the matter of representation
at the interview scheduled by Riter was wholly within the province
of the employees rather than of their employer, the drivers elected a
committee to represent them as adherents of the Brotherhood and to
iterate, through presentation of the "memorandum of agreement," the
demand for recognition previously made on September 15. It is
argued by the respondents in their brief that the committee was
not authorized to represent the Brotherhood under the terms of the
signed authorizations and did not represent a majority of the em-
ployees in the appropriate unit, as a minority of the drivers were
present at the meeting which elected the committee. We find these
contentions to be without merit. The committee acted with Fennell's
approval. The tenor of Riter's reception of the committee and his
reaction to their request, as well as his reading aloud from the maga-
zine article, revealed a marked conflict of underlying purpose between
both sides. Biter's intention was to disregard the request for recog-
nition made on September 15 and to dissuade his employees from
further association with the Brotherhood and from general organ-
izational activities. The committee was bent only upon obtaining
-recognition of the Brotherhood. Since Riter refused unconditionally
to sign the "memorandum of agreement" and thereby to recognize and
-consent to deal with the Brotherhood at a time when it represented
a majority of the employees in the appropriate unit, he clearly failed
to comply with the initial requirement of the duty to bargain col-
lectively imposed upon the respondents by the Act.
From September 22 to September 27, the day on which Miter wrote
Fennell that it was the respondents' intention "to obey strictly the
terms of the National Labor Relations Act"; that they would be
"glad to consider the evidence on your authority to bargain collec-
tively"; but that they had been advised "by the majority of our em-
ployees they do not desire that you be authorized to act in their
behalf," the respondents had actively devoted themselves to dissi-
pating the Brotherhood's majority by sponsoring circulation of the
petition and the withdrawal letters and by isolating the four com-
mittee members. Relying on the successful outcome of their efforts
in this regard and assured that the Brotherhood could not meet the
challenge of its majority claim, the respondents assumed the disin-
genuous position of protesting their willingness to comply with the
Act and to recognize and deal with the Brotherhood if the latter
could prove a majority at that time, a condition which the respond-
ents had by their own acts intentionally rendered impossible of ful-
DIXIE MOTOR COACH CORPORATION 909 '
fillment. This was the respondents' attitude on September 27 and .
28 and has continued to be its attitude up to the present time.
We do not regard the withdrawals as evidence of an independent
and considered revocation of the authorizations previously executed
by the employees in the appropriate unit. Elicited from the em-
ployees by acts of coercion and intimidatio4 at the time of their
execution and immediately prior thereto, such withdrawals cannot
be considered as affecting the majority status of the Brotherhood on
any of the occasions with, which we are here concerned. Had the
respondents agreed to recognize the Brotherhood and had they other-
wise refrained from interfering with the right of their employees to'
self-organization and to bargain collectively through representatives
of their own choosing, the Brotherhood's majority, constituting the
basis for the respondents' duty to bargain collectively, would not
have been vitiated. The respondents cannot thus seek refuge in
their own derelictions against the requirements of the Act 12
We find that between September 15 and September 22 and on Sep-
tember 22, and September 27, September 28, and at all times there-
after, the respondents refused to bargain collectively with the-
Brotherhood as representative of their employees in the appropriate
unit.
We find also that, by inserting the advertisement for 50 drivers in
the Dallas Journal, by the statements of Riter and Jameson to the
drivers to consider organizations other than the Brotherhood and to.
abandon the Brotherhood, by the granting of the general wage in-
crease, by sponsorship of the withdrawal petition and the letters of
withdrawal, and by the discharge of Styles, the enforced vacation
granted to Phillips, and the transfer of Warren and Barney, the re-
spondents have interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the-
Act.
12 Matter of Bradford Dyeing Association (U. S A ) (a Corporation) and Textile Work-
ers' Organi zing Committee of the C. I. 0 , 4 N L R B . 604, enf 'd, N. L. R. B V Bradford
Dyeing Ass 'n. (U. S A ), 60 S Ct 918 , rev'g 106 F. (2d) 119 (C C A. 1) ; Matter of
American Manufacturing Company; Company Union of the American Manufacturing
Company, The Collective Bargaining Committee of the Brooklyn Plant of the American
Manufacturing Company and Textile Woikers' Organizing Committee of the a 1. 0,
5 N. L. R. B. 443 , enf'd American Manufacturing Company v N. L R. B., 106 F. (2d) 61
(C. C. A. 2), cert. granted and aff'd as modified , 60 S. Ct 612 ; Matter of Arthur L
Colten, and A. J. Colman, Co-Partners , Doing Business as Kiddie Kover Manufacturing
Company and Amalgamated Clothing Workers of America , 6 N. L. R B. 355, enf'd N. L._
R. B. v. Arthur J. Colton and Abe J Colman , Doing Business as Kiddie Kover Mfg Co,
105 F. ( 2d) 179 (C. C A 6) , Matter of Sunshine Mining Company and International-
Union of Mine, Mill and Smelter 1Vorkers, 7 N L R B 1252, enf'd as mod N. L R B v.
Sunshine Mining Company, a corporation, 110 F (2d) 780 (C C A 9) ; Matter of Chicago
Apparatus Company and Federation of Architects, Engineers , Chemists and Technicians,
Local 107, 12 N. L R B 1002 ; and Matter of Highland Park Manufacturing Co and
Textile Workers Organizing Committee , 12 N. L R B 1238, enf'd , N T. R B v Highland
Park Manufacturing Company , 110 F (2d) 632 (C C A 4)
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharges
The complaint as amended alleged that the respondents, or one of
them, discharged J. B. McCullough, M. W. (Pete) Warren, and
O. C. Richards because of their activities in behalf of the Brother-
hood.
Jim McCullough.13 McCullough was first employed by the re-
spondent Sunshine on October 1, 1935, and worked continuously as
a driver until the date of the termination of his employment on
March 15, 1938. In September 1937 he had signed an authorization
designating the Brotherhood as his bargaining agent and had ap-
plied for membership in that organization. Between September
1937 and the date of his discharge he had talked with some of the
drivers on behalf of the Brotherhood. At the instance of Hurley
and Wallace, who had approached him while on duty, he had refused
to sign the petition or a letter of withdrawal. According to his'
testimony, he went to see Riter on September 22, 1937, upon the sug-
gestion of Hurley that he talk with Riter about the matter after he
had resisted Hurley's request to sign the petition. Riter expressed
surprise at having observed McCullough's name "down with the
bunch that joined the Brotherhood" but added that the men had a
right to belong to the Brotherhood or any other union of their choice.
McCullough replied that he had joined the Brotherhood "with good
will" and that he was uncertain as to whether or not he had made
a mistake and solicited Biter's opinion on the matter. Riter com-
mented that it seemed to him "like it was the Railroad Companies
that were trying to get their employees back to driving, and us be
out." During the course of the conversation mention was made of
the fact that some of the drivers were withdrawing from the Broth-
erhood, and McCullough told Riter he would think the matter over
and might follow their example. Although Riter denied having
had any conversation with McCullough in which the subject of the
Brotherhood or union activity was adverted to, we do not credit his
denials and we believe the, testimony of McCullough. After he
learned of the Brotherhood's sanction of the petition or letters, Mc-
Cullough asked J. C. Riter whether he had in his possession "one of
'those letters that they were signing and withdrawing from the
Brotherhood." When J. C. Biter replied in the affirmative and
handed McCullough one of the letters, the latter signed it and left
it with J. C. Riter. After Hurley returned to Dallas from his tour
,of outlying stations, McCullough also added his signature to the
petition.
13 Referred to in the amended complaint as J. B. McCullough
DIXIE MOTOR COACH CORPORATION 911
At the time of the termination of his employment and for some
time prior thereto, McCullough had worked on a line which the re-
spondents had leased from another company. For several months
before the respondents dispensed with his services it was known that
the line would be sold by its owner and that the respondents' lease
would consequently be cancelled. While McCullough was still on
that line, Jameson had offered to transfer him to another run but
McCullough refused the offer on the ground that the road on which
the other run was to be operated was in disrepair and would be ex-
tremely difficult of passage. McCullough testified that his decision
iii this regard had been influenced by Jameson's earlier assurance to
him, repeated shortly before the sale of the line, that McCullough
and another driver would, by reason of their seniority with the
respondents, be retained in the service of the respondents after
cancellation of the lease.
On March 15, 1938, the line was sold. Jameson on that day in-
formed McCullough that there was no work for him with the re-
spondents and told him to see Bowen, the new owner, about employ-
ment on that line. Jameson at that time gave McCullough a letter
of recommendation, addressed "to whom it may concern," which
introduced McCullough as "a nice, clean young man" with a "very
good record" and which recommended him "to anyone in need of a
bus driver." The letter stated further that McCullough's separation.
from Sunshine's services "is due to the fact the line on which
he was driving was sold and we had no place open for him." McCul-
lough went to see Bowen and was told that the new owner of the line
was discontinuing some of the schedules and consequently had no
need for an additional driver.
At the time of the sale of the line to Bowen, McCullough and four
other drivers were operating schedules on that line. Of the five men,
McCullough and one Crowell, both of whom had signed authoriza-
tions and applications for membership in the Brotherhood, ranked
highest in system-wide seniority with the respondents. Of the three
junior drivers, two had not signed either authorizations or applica-
tions and the evidence is not clear on this point as to the third. The
following disposition was made of the five drivers on March 15, 1938:,
McCullough and Crowell were released from the respondents' em-
ploy. One of the junior men who had not signed an authorization
or application was taken on by Bowen, the new owner, by previous
arrangement with the respondents. The other junior men were
transferred to another part of the respondents' system.
McCullough reported the circumstances of his discharge to the
Brotherhood and was thereafter advised by Fennell to seek reemploy-
I
912 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
ment with the respondents. Some time during April or May of 1938
McCullough talked with Riter about the prospects of reemployment.
According to McCullough's testimony, 'Riter told him at that time-
that he had disabled himself from obtaining further employment
with the respondents because of his disloyalty in complaining to the
Board about his discharge. McCullough protested that he had made
no reports to the Board but Riter insisted that he had learned
through some source that McCullough had in fact done so. When
McCullough asked Biter whether it would be advisable for him to
return at some later date in search of reemployment, Biter answered
in the negative and indicated that McCullough was permanently fore-
closed from employment with the respondents. At the hearing, Riter
denied that portion of McCullough's testimony dealing with the
Brotherhood or unions or the Board. We do not credit these denials.
M. L. McCullough, father of Jim McCullough, testified that he had
been a close acquaintance of Riter's for about 25 years and that his
relationship with Riter had led to the employment of his son by the
respondents. About a week or 10 days after the termination of his
son's employment, M. L. McCullough visited Riter in an effort to
determine the cause of the discharge. Biter explained that his son's
record had been very good; that the sole reason for his discharge
had been the discontinuance of the line on which he had worked;
.and that, as soon as the opportunity presented itself, he would be
reemployed, provided that he did not initiate proceedings by the
Board against the respondents. M. L. McCullough promised Biter
that if his son were returned to employment with the respondents,
the father would see that his son did not "mess with the union any
more." Riter remarked that Brotherhood activity had not been a
factor in the discharge. The father thereupon proceeded to defend
his son by stating that he "was just an ignorant country kid" who
knew nothing about unions and that "somebody talked him into join-
ing." Riter agreed, and then commented regarding the son that
"They made him believe he wouldn't have a job if he didn't join."
Before the close of the conversation Riter stated that he would sell
his, business as an alternative to letting the men control it. During
the course of his testimony, Biter denied that he had adverted to the
union in that conversation but stated that he had, in reply to an
inquiry by the father as to whether the union had cost the son his
job, said that the union had not been a factor in the discharge. He
admitted, however, having promised the father that he would re-
employ his son when a job was available.
Jameson and Riter testified that McCullough's discharge was attrib-
utable solely to the sale of the line on which he had worked and that
McCullough had been told to apply for employment with the new
DIXIE MOTOR COACH CORPORATION 913
owner of the line. Jameson admitted that special arrangements had
been made in advance with Bowen for the employment of one of the five
men affected by the sale of the line and that no' definite agreement had
been made- as to McCullough, although the latter's seniority was
greater. He admitted also that a new line had been installed by the re-
spondents after McCullough's discharge, to which a comparatively new
man had been transferred, and that three or four drivers had been em-
ployed by the respondents at various times subsequent to McCullough's
discharge. Riter declared the respondents' policy with respect to lay-
offs to be that if two men were equally qualified and he were compelled
to dispense with the services of one his choice would be governed by
their relative length of employment with the respondents. He admit-
ted that of the five men affected by the sale of the line McCullough
was one of the oldest men in point of service with the respondents.
There is, moreover, ample evidence to show that the respondents
reemployed or offered an opportunity for reemployment to drivers
who had been laid off or who had voluntarily terminated their serv-
ices with the respondents.
We conclude, in view of the disregard for McCullough's seniority
at the time of his discharge and in view of the special arrangements
which had been made for the employment by the new owner of a man
who was junior to McCullough and who had not signed an authori-
zation or application for membership in the Brotherhood, that Mc-
Cullough's employment was terminated by the respondents and
that he was foreclosed by them from obtaining work with the new
owner of the line because of his activities in behalf of the Brother-
hood. We conclude also that he was, for the same reason, denied
reinstatement to one of- several positions which he was capable of
filling.
We find that by the discharge of McCullough and the subsequent
failure to reinstate him the respondents have discriminated agauist
him in regard to hire and tenure of employment, thereby discourag-
ing membership in the Brotherhood and interfering with, restrain-
ing, and coercing their employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
M. W. Warrren. Warren had been employed by one or both
respondents for 8 years at the time of his discharge on August 31,
1938. He was admittedly a good driver, and the respondents re-
garded' him as a conscientious and valuable employee. He was
undoubtedly the prime. mover in the organizational drive among the
respondents' employees and remained its staunchest protagonist until
the date of his discharge. The respondents were well aware of the
extent of his activities and of his influence among their employees.
As already indicated, he, had served as a member of the committee
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which unsuccessfully requested recognition of the Brotherhood on
September 22, 1937, and was therafter transferred to a schedule
which hampered considerably his promotional efforts among the
drivers. In conformity with the advice of the Brotherhood that two
or three drivers refrain from signing the petition for withdrawal, he
had withstood Hurley's request and had also refused to execute a
letter of withdrawal.
Warren resisted the respondents' efforts to banish the Brother-
hood as a possible form of organization for their employees and
actively attempted to revive the-interest of the drivers in anticipa-
tion of action by the Board on the Brotherhood's petition of April 6,
1938, for an investigation and certification of representatives. By
August of 1938 he openly resumed his activities in behalf of the
Brotherhood and in collaboration with O. C. Richards, a fellow
employee, attempted to enlist the aid of an organizer in reestab=
lishing the Brotherhood among the drivers. At this time the re-
spondents effected a general wage increase for all drivers and
mechanics.
On August 22, 1938, Hurley and WTorthington, a quasi-supervisory
employee, urged Warren to abandon his efforts on behalf of the
Brotherhood or to leave the employ of the respondents. Warren
refused to agree to either alternative. Four days later, at a meet-
ing of about 12 drivers held in the drivers' room under the leader-
ship of Hurley, he was advised that Riter would not "work organized
labor" and that the other drivers had decided to withdraw their sup-
port from the Brotherhood and he was again asked to relinquish
his interest in the Brotherhood or to resign his position with the
respondents. Warren remained firm in his resistance to both re-
quests and insisted that he would continue to assist the Brotherhood
in its efforts to be represented among the drivers. There is evi-
dence that at least one employee was permitted to take time off to
attend this meeting.
On August 28,' 1938, Warren sent a letter to Riter, copies of
which were mimeographed and sent by Warren together with a
Brotherhood leaflet to most of the respondents' drivers. The letter
stated that Warren had for several months actively participated in
organizational work and that his efforts in that regard had, in con-
travention of the Act, been considerably opposed; that since his
employment status was vitally affected the purpose of this communi-
cation was to determine whether the respondents were aware of the
acts of certain individuals and whether such acts bore management
sponsorship or approval. The letter then apprised the respondents
of the ultimatum presented to him by Hurley and Worthington,
"who act in supervisory positions," and by the meeting of August
DIXIE MOTOR COACH CORPORATION 915
26, at which statements had also been made that Riter would never
recognize the Brotherhood and would sell his business as an alterna-
tive to bargaining with the Brotherhood. After posing several
questions directed at eliciting a statement from the respondents as
to their intentions to comply with the requirements of the Act, War-
ren asked directly as follows: "Has the management of Dixie Motor
Coach' Corporation and or Sunshine Bus Lines, Incorporated, spon-
sored or approved of the acts of any of its officers, agents, or employees
in requesting that I withdraw my support from the Brotherhood of
Railroad Trainmen or resign from the service?" The letter closed
with a statement of assurance that "an early reply to the above
questions will do much to clear the atmosphere as it is 'my intention
to make your reply available to my fellow workers." Warren tes-
tified that his purpose iii dispatching the communication to the
respondents, in reply to which he had hoped to receive a denial of
the accusations which it contained, was to remove the jeopardy in
which his employment had been placed and to encourage the drivers
to cooperate with his efforts to revive the Brotherhood.
Warren received no reply to his letter of August 28 but 3 days
thereafter he was notified by Jameson of his discharge and was
handed a letter explaining the reasons for the termination of his
employment. The letter had been dictated by the respondents'
attorney and it informed Warren of the receipt by the respondents
of a petition signed by a majority of the drivers stating that Warren
had been annoying then while on duty concerning "some character of
organization which you evidently are insisting on their joining."
The letter stated further that the drivers must be protected in their
right to remain free from harassment and that the respondents would
not permit "any employee, knowingly, to intimidate or harass other
employees in order to compel them to act contrary to their wishes."
Since Warren's fellow employees had, it 'continued, notified the re-
spondents that his activities had harassed them to the extent that
their jobs and their passengers were endangered and since the re-
spondents required their drivers, while oil duty, to give their complete
attention to their work, and in view of the request of those employees
for his discharge, "we regret," the letter concluded, "to' advise you
that effective today your services will not be needed by these
Companies."
The petition to which reference was made in the respondents' letter
to Warren was circulated among the. drivers by Hurley and two other
employees between August 27 and August 30, 1938. At the time of
its presentation to the respondents it bore the signatures of 53 drivers.
Addressed to the respondents, it stated that the signers "in an' open
meeting have decided individually and in a group that Mr. Pet€
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warren is a troublemaker and is undesirable to work with and he is
jeopardizing our jobs and that we do not want to work with him,
and demand his dismissal in order to have harmony in our work.
Mr. Warren having been present at this meeting was asked to resign
from Union or from Company, he refused both."
There is no direct evidence relating to the origin of the idea for
the petition, or to its authorship, or to the circumstances of its circu-
lation. Several drivers who were stationed at points outside Dallas
testified that they had signed the petition at their stations upon the
request of Hurley. The further testimony of one of these witnesses
is that Hurley had told him at the time that he was making a tour
,of out-of-Dallas stations for the purpose of obtaining signatures.
The respondents' records show that no deductions were made from
Hurley's salary for the period during which he was engaged in solic-
iting the drivers. One Romick, in practice at Dallas as an attorney,
testified that during the month of August Hurley and Wallace had
sought his advice concerning the general union situation, making it
clear that they were opposed to any form of organization, and that
on a later occasion they and several other drivers had inquired of
him whether they would be privileged to demand the discharge of
Warren because of the harassment, agitation, and general disturbance
which he had caused. Romick testified further that he advised his
inquirers in the affirmative and commented to them that Warren had
exceeded his rights under the Act. Subsequently, his testimony con-
tinued, some of the drivers brought the executed petition to him and
he thereupon dictated a covering letter to the respondent Dixie,
designating Hurley and two other employees as the signers of that
letter. The letter as dictated by Romick and signed by the three
employees whom he had selected stated that Warren had been "agi-
tating" the respondents' employees for more than a year against their
wishes about the union; that, despite their express displeasure and
their warnings, Warren had persisted in his conduct, approaching
the drivers while on duty and visiting them at their homes, thereby
interfering with their rest and their peace of mind; that the conduct
complained of had so troubled the minds of the drivers as to en-
danger their jobs and their passengers, if Warren continued in the
respondents' employ; that Warren was motivated by selfish interests
in his promotional efforts; that he was a "troublemaker" and had
made himself intolerable among the rest of the employees, who felt
that, in view of his refusal to resign his position with Dixie or to
,cease harassing the drivers and their families, "we owed it to our-
selves, our families, and our passengers, whose safety lies in our
hands, to request that Warren be discharged, and that he be ordered
to stop harassing us operators, and our families." Aside from
DIXIE MOTOR COACH CORPORATION ,917
Romick's general statement that he was personally acquainted with
Hurley through having eaten at a cafe with him and other drivers of
the respondents about 4 years before Hurley's first visit to him in
August 1938 , there is no evidence as to the circumstances leading to
the selection of Romick by Hurley.
Many drivers called by the Board and the respondents testified
that although they signed the petition Warren had not annoyed them.
or disturbed their peace of mind or interfered with their rest or
recreation , some stating that he had never talked to them about
organizational affiliation generally, or about the Brotherhood specifi-
cally. Several of the witnesses for the respondents stated, however,
that while Warren had not personally approached them or talked
with them about the Brotherhood they felt that the Brotherhood
had caused considerable strife and discontent among the drivers
and that Warren, representing the moving spirit - in the organiza-
tional work, became associated in their minds with that strife and
discontent . One of these witnesses intimated that he feared the
loss of his employment with the respondents if the union activity
continued.
Jameson testified that after the petition and its accompanying
letter had been handed to him on August 30 he turned it over to
Riter, who decided that there was , under the circumstances, but
one course open to the respondents-the discharge of Warren. He
stated at the hearing that the petition was the first indication he
had of Warren's mistreatment of the drivers ; that he had received
no previous complaints against Warren ; and that he personally
found Warren amiable and easy to get along with . Riter testified
that when Jameson turned the petition and the accompanying let-
ter over to him he said , "Joe, it looks pretty bad . Joe, it looks like
we have no alternative . If my own brother was causing a lot of
trouble amongst this organization , or anybody else, what it looks
like this thing bears out , we would have to let him go ." He there-
upon was compelled to pursue the course of conduct which the
petition made inevitable.
On the basis of the evidence on this part of the case and in vied
of the respondents ' earlier plan to outlaw the Brotherhood , as here-
inbefore discussed , and particularly in view of the tone of Warren's
letter of discharge , we cannot accept Riter's protestations of in-
nocence, disinterestedness , and aloofness . It is clear that the cir-
cumstances leading to Warren's discharge derived their inspiration
and authorization from the respondents , whose determination to
maintain the moribund state of the Brotherhood was as strong at
this time as their earlier efforts to compel their employees to renounce
their allegiance to that organization'. In view of the close relation-
283036-42-vol 25-59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship between Riter and Hurley and of the latter's aid to and services
on behalf of the respondents in circulating the withdrawal petition
in September 1937, we find that the respondents had again selected
Hurley to instigate the discharge of Warren and that all acts under-
taken by him in the course of that assignment were authorized by
the respondents.
We find that by discharging Warren the respondents have dis-
criminated against him in regard to hire and tenure of employment,
thereby discouraging membership 'in the Brotherhood, and interfer-
ing with, restraining, and coercing, their' employees in the exercise
of the rights guaranteed to them in Section 7 of the Act.
0. C. Richar&. Richards had been employed by one or both
respondents for somewhat over 7 years at the time of his discharge by
the respondent Dixie on August 31, 1938. In 1936 and 1937 he was the
recipient of a safety award presented annually by the respondents to
drivers who had encountered no accidents during the course of the
year. He had actively participated in the movement to organize
the respondents' drivers in August and September 1937 and had exe-
cuted an authorization and application for membership. He had at
first refused Hurley's request to sign the petition but later acceded to
it when the Brotherhood promulgated its instructions. His enthusi-
asm for the Brotherhood persisted after the respondents' acts of Sep-
tember 1937, and in August 1938; he joined Warren in an attempt to
reawaken interest among the drivers in the Brotherhood. On Au-
gust 25, 1938, he visited the Brotherhood's field supervisor in his
personal car and on his own time for the purpose of expediting action
by the Brotherhood in behalf of certain employees whose rights he
believed the respondents had invaded. That evening Hurley and
Worthington, a quasi-supervisory employee, talked with him about the
Brotherhood. Hurley asked him what he knew -about the Brother-
hood and added that there had been rumors of a movement to revive
it. Richards denied knowledge of such rumors. Worthington there-
upon inquired whether he was still in favor of the Brotherhood and
Richards replied emphatically in the affirmative.
On the evening of August 31, 1938, the same day on which Warren
had been discharged, Jameson handed Richards a letter which read
in part as follows : "From time to time during the past two years
officials of this Company have advised you to refrain from the use of
intoxicating liquor and of the ultimate result of continued use. We
regret to inform you that due to a finding on the part of this Com-
pany that you have continued to use intoxicating liquor and have
recently been seen while under the influence of same it is necessary for
us to dispense of your services effective today." Like the communi-
cation which announced Warren's discharge, this letter too had been
DIXIE MOTOR COACH CORPORATION 919
prepared by, and upon advice of, the respondents' attorney. Richards
was thereafter replaced by a driver who had refused to sign an
authorization or application for membership.
Jameson testified that the decision to discharge Richards was made
under the following circumstances : On August 30 Riter asked
Jameson if he knew that Richards had been drinking at Durant,
Oklahoma. When Jameson replied that he had received no reports
to that effect, Riter said, "Well he has been staying drunk quite a bit,
I understand, up there. I have reports that he has been doing quite a
bit of drinking up there." Riter then reminded Jameson that
Richards had been assigned to his last- schedule, several years earlier
with the understanding that if he did any drinking on or around
the job he would be discharged automatically. He thereupon directed
Jameson to discharge Richards, and the following night Richards
received the letter of discharge.
Riter testified that approximately 3 years before the discharge he
had talked with Richards concerning his drinking and had warned
him then that if he did not stop drinking he would be discharged. He
thought also that he had talked with Richards once or twice after
1935 about rumors concerning his drinking but that he could never
"pin anything directly on him." With regard to the immediate cause
of the discharge, Riter testified that he had acted on reports, whose
source he did not reveal, that Richards had been drunk on the last
two days of his employment.
With respect to the charge that he had been drinking Richards testi-
fied that he had taken several drinks in 1933 as a specific for easing
dental troubles from which he was then suffering; that for several
weeks during the fall of 1934, while he was assigned to a run at
Hot Springs,' Arkansas, he did do some drinking and confessed this
to Riter early in 1935. His confession and an accident in which he
was involved resulted in a two-day lay-off as a penalty. Thereafter
on June 1, 1935, he was assigned to the run which he operated con-
tinuously until the date of his discharge, during which period, he
'testified, he had abstained almost entirely from drinking. In support
of this statement he pointed to the medal he had received for his per-
fect record in regard to accidents for the years 1936 and 1937. Since his
lay-off in 1935, he testified further, no supervisory or management offi-
cial had alluded to drinking on his part or had warned or questioned
him about it. On August 25, 1938, in the course of a triple had made
in his personal car and on his own time to the Brotherhood's field
supervisor, he admitted, he had taken two swallows from a bottle of
liquor purchased by a friend who accompanied him on the trip, which
preceded his discharge by 6 days. He denied having'been drunk, as
Biter had stated at the hearing, during the last 2 days of his
employment.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents called several witnesses who testified that they
had seen Richards at various times under the influence, in varied
degrees, of intoxicating liquor. The experience of two of these wit-
nesses was limited to the period of Richards' drinking "spell" at
Hot Springs, and to dates prior thereto. An independent service-
station operator who sold fuel to the respondents testified that he
had seen Richards at Texarkana in about January of 1938, while
Richards was not on duty, when he did not appear to be drunk but
gave the impression, because of his conduct, of having been drinking
quite a bit. There is testimony of three witnesses that each had
seen Richards on the day of his visit to the Brotherhood's field super-
visor at two of the respondents' stations at different hours of the
day when his appearance and conduct indicated quite unmistakably
that he had been drinking. Two of these witnesses, each of whom
allegedly saw him at different times, testified that he displayed to
their view a bottle of whiskey which was about half empty, although
the impression given by their testimony is that he grew progressively
more uncontrolled in his conduct. The language used by all three
witnesses in setting forth the details of Richards' conduct which
served as the basis for their inference as to his intoxicated condition
was virtually identical. With respect to Richards' alleged conduct
on the last 2 days of his employment, one of the respondents' drivers
testified that he took 4 days' leave without pay to visit some acquaint-
ances in Durant and that he rode as a passenger on the bus driven by
Richards from Dallas to Durant on the evening of August 30. , The
following day, while Richards was admittedly not on duty, he in-
vited the witness and a third person to his home where he openly
displayed a half-empty bottle of whiskey which he offered to, his
guests and from which he then "drank her down like it was water."
Thereafter Richards appeared at the Durant station, behaving in
a manner which led the witness to believe that he had passed from
his former sobriety to a state of intoxication. Although the witness
had stated on direct examination that he had repulsed Richards'
four or five requests to take a drink from the bottle, he varied his
testimony on cross-examination by stating, in response to a question
of counsel for the Board as to the basis for his knowledge that the
bottle contained whiskey, "because I tasted of, it." The witness had
also on direct examination characterized his own habits by stating
"I don't drink"; on cross-examination, however, he indicated that
he had had some experience in tasting liquor by saying of the con-
tents of Richards' bottle, "It had that same old taste of any I tasted
before." Further cross-examination also shook his former certainty
as to just how much liquor Richards had drunk on that occasion.
By the time Richards was ready to drive his bus back to Dallas, the
witness testified further, his intoxication had worn off but he acted
-DIXIE MOTOR COACH CORPORATION 921
"like he needed some sleep or rest or something , you know." The
witness drove back to Durant with Richards and was the only other
person present in the drivers' room that night when Jameson dis-
charged Richards . It is not clear that the witness visited the acquaint-
ances who were allegedly the reason for his trip to Durant. We
find the testimony of this witness to be unreliable in view of the
patent contradictions in his story.
All the witnesses who testified to Richards ' drinking during 1938
stated at the hearing that they had not reported that fact to any
management or supervisory officials before the date of Richards' dis-
charge. Jameson testified that he would not discharge a driver for
taking a drink while off duty , if that driver had sufficient time to re-
cover his sobriety completely by the time he returned to duty. His
testimony with respect to the respondents ' policy is borne out by his
further statements, that he knew of at least four drivers who had been
drinking during the period when Richards was allegedly behaving
similarly and who were not discharged . Of these four drivers, three
had not signed authorizations or applications for membership in the
Brotherhood and none of them had engaged in any activity on behalf
of the Brotherhood in August 1938. One driver , he testified further,
had been laid off for several days after Jameson had confronted him
with proof of drinking while on duty and after the driver had ad-
mitted the truth of the accusation.
It is clear that, even if the respondents ' witnesses are to be believed,
Richards did not drink while on duty and the respondents did not
learn of his alleged drinking prior to his discharge from sources which
they were willing or able to reveal at the hearing : Moreover , Richards
was not given an opportunity to answer the respondents' accusations
before he was discharged , a procedure distinctly contrary to that fol-
lowed in similar cases. Even if we were to believe that Riter had
warned Richards several years before his discharge that further in-
dulgence in alcohol would automatically result in the termination of
his employment , we are convinced that the respondents , at the time of
Richards' discharge , had no reliable reports that he had in fact been
drinking.
We conclude that Richards , like Warren, was discharged solely
because of his vigorous attempts to revive the Brotherhood and thereby
to oppose the respondents ' efforts to outlaw the Brotherhood from
the sphere of organizations acceptable to the respondents.
We find that the respondents have, by the discharge of Richards,
discriminated against him in regard to hire and tenure of employment,
thereby discouraging membership in the Brotherhood and interfering
with, restraining , and coercing their employees in the exercise of the,
rights guaranteed to them in Section 7 of the Act.
922 , DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
C. Discrimination for giving testimony at the earlier' hearing
The supplemental complaint alleged in substance that the respond-
ents, or one of them, discriminated against W. T. (Bud) Wilkinson
in regard to hire and tenure of employment and other conditions of
employment by reason of his activities on behalf of the Brotherhood
and because-he had given testimony at the earlier hearing on the
original complaint.
Wilkinson was first employed by the respondent Dixie in Decem-
ber 1934 as a taxicab driver. About 18 months later he became a bus
driver and continued in that capacity until the termination of his
employment on January 16, • 1939. During the course of the earlier
hearing he had been called as a witness for the Board and gave testi-
mony as to the following matters at that time : He had signed an
authorization and an application for membership in the Brotherhood.
The advertisement for 50 drivers led him to believe that he would be
replaced by a new man. , He,had signed the withdrawal petition at
the request of Hurley because he was unwilling to jeopardize his em-
ployment and because of the Brotherhood's sanction in that regard.
He refused to sign the petition for the discharge of Warren because,
as he told Hurley, Warren had not annoyed or harassed him. He also
refused to sign the various petitions for intervention in the two pro-
ceedings, informing his solicitors at that time that he saw no need
for being represented by counsel.
In November 1938 Wilkinson was one of four regular drivers as-
signed to the Denton division, where there was also an extra driver.
On November 18, 1938, the Texas Railroad Commission approved
Dixie's application for a consolidation of schedules on the Denton
division and the new schedules thereupon went into effect with the
following concomitant changes : The extra driver was dismissed and
Wilkinson was demoted from the position of regular, driver to that of
extra driver. The other three drivers were assigned to the three con-
solidated schedules. On January 16, 1939, Wilkinson was called to
Dallas and was informed by the respondents' superintendent of main-
tenance and drivers that the position of extra driver for Denton was
being abolished, that extra schedules out of Denton would be handled
by drivers assigned to the "extra board" 14 at Dallas and that conse-
quently there was no position available for Wilkinson with the re-
spondents. Although the superintendent of maintenance and drivers
assured Wilkinson that he was not being discharged but was merely
being laid off, he did inform Wilkinson that it would be useless for
him to return in the future in search of reemployment. There is no
evidence that the respondents thereafter stationed an extra driver at
M The "extra board" consists of extra drivers, employees not operating regular schedules
but available for relief and similar duties.
DIXIE MOTOR COACH CORPORATION 923
Denton. Wilkinson contended at the hearing that in view of the fact
that his system -wide seniority with . the respondents was greater at
that time than that of other drivers he should , if, the respondents had
dealt fairly with him, have '.been transferred to another division as a
regular driver or to the Dallas extr' a board instead of being discharged.
Shortly before the suppleniental hearing, Wilkinson was offered
a, position by letter on the , Dallas "extra board" with the statement
that "at this time we are unable to give you any definite commitment
concerning the amount of employment that will be available to you as
an extra board driver ." Wilkinson refused the offer by 'letter of
October 8 , 1939, explaining that he wanted a regular assignment or the
position of extra driver out'of Denton and that he considered himself
entitled to back pay for the period following his discharge . He stated
that he would consider accepting another type of offer.
Ellis, the respondents ' superintendent of maintenance and drivers,
testified that Wilkinson had at first been selected as extra driver for
the Denton division because,- at ^the time of the consolidation of sched-
ules which resulted in a need for only three regular drivers, he had
least divisional seniority among the four regular drivers .' His final
lay-off was occasioned only by the fact , that the respondents consid-
ered it more economical to supply drivers from the Dallas extra board
for relief work and extra driving out of Denton. He stated , without
contradiction , that at the time of the alleged lay-off the extra board at
Dallas was manned to capacity . Ellis admitted , however, that he
knew of no other instance in, which the respondents had been gov-
erned by a driver 's divisional rather than system -wide seniority in
demoting that driver from the position of regular driver to that of
extra driver or in making lay-offs. He admitted also that the re-
spondents had, since Wilkinson's alleged lay -off, employed two hew
drivers for assignment at. first to the Dallas extra board and there-
after to regular schedules. -There is also evidence which shows that
the respondents had customarily transferred drivers from one division
or schedule to another.
Of the three regular drivers who were retained as such on the Denton
division , two had not ate any time signed authorizations or applica-
tions for membership in the Brotherhood . The third had signed both
types of documents and also the petition for withdrawal but had re-
fused to execute any petitions for intervention. He had also testified
as a witness for the Board at the earlier hearing.
We find , on the basis of -the evidence , that the respondents, in the
case of Wilkinson , deviated from their usual seniority policy govern-
ing demotions to the position of extra driver and applicable to lay-
offs, for the reason that .Wilkinson had engaged in activity on behalf
of the Brotherhood and- 'had given testimony at the earlier hearing.
The fact that another driver who had also been active on behalf of
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Brotherhood and'had given testimony at the earlier hearing was
retained as a regular driver does not affect the validity of our finding
since it was necessary at that time to dispense with the services of only
one driver and the respondents, in making their choice, attempted'
to give it the appearance of objectivity by enforcing for the first time
a seniority policy which affected one of the two Brotherhood adherents
who testified at the earlier hearing. We conclude further that the
respondents did not, on January 16, 1939, terminate Wilkinson's em-
ployment with the intention of recalling him but that rather, in view
of the subsequent hiring of two new drivers, they intended to and did
in fact discharge him.
We find that the respondents have, by the demotion and subsequent
discharge of Wilkinson, discriminated against him in regard to hire
and tenure of employment and other conditions of employment be-
cause of his activities in behalf of • the Brotherhood and because he
had given testimony at the earlier hearing, thereby discouraging
membership in the Brotherhood and interfering -with, restraining, and
coercing their employees in the exercise of- the rights, guaranteed to,
them in Section 7 of -the Act:
IV. TAE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth, in Section III , above,
occurring in connection with the operations of the, respondents de-
scribed, 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 respondents' have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom
and to take certain affirmative action which we deem necessary to
effectuate the policies of the Act.
We have found that on September 15, 1937, and at all times there-
after the respondents refused to bargain collectively with the Brother-
hood for their employees in the unit hereinbefore designated as appro-
priate. We have also considered the withdrawals as inoperative in
determining whether, at the times indicated in' the complaint, the
Brotherhood represented a majority of the employees in the appro-
priate unit. Our reason is the patent exercise of coercion by the
respondents in the execution of those withdrawals. The respondents
contend, in their brief, pointing to the motions to intervene in the
proceeding on the petition and on the complaint and to the testimony
of a number of drivers that they did not at the time they signed the
withdrawals' and at the time of the hearing want the Brotherhood
DIXIE MOTOR COACH CORPORATION 925
to represent them, that there is sufficient indication in the record of
the Brotherhood's loss of majority at the time of the withdrawals and
as of the date of the hearing. As already indicated, we do not regard
the withdrawals as material. With respect to the petitions for inter-
vention, which recite that the signers do not want to be represented
by the Brotherhood, the record shows that the petitions were executed
with the tacit approval of the respondents.15 We do not, therefore,
consider that the drivers have exercised a free and unhampered choice
in changing their designation of representatives.1' Furthermore, to
regard the petitions for. intervention as a true indication of the extent
of the Brotherhood's representation would be to reward the respond-
ents for the unfair labor practices which directly brought about the
diminution of the Brotherhood's majority at the time of the hearing.11
In view of all these considerations and of our finding that the re-
spondents have refused to bargain collectively with the, Brotherhood,
we do not deem it material, in determining the affirmative action which
the respondents must undertake in order to remedy the unfair labor
practices, that the Brotherhood's majority has apparently been dissi-
pated. Nor, if we were to consider that factor material, can we over-
look the circumstances under which the dissipation was effected. We
shall, therefore, order the respondents to bargain collectively with the
Brotherhood upon request as the representative of the employees in
the appropriate unit.
Since we have found that the respondents have discriminated
against four drivers in regard to their hire and tenure of employ-
ment, we shall order their reinstatement to their former or substan
tially equivalent positions, without prejudice to their seniority and
other rights and privileges. We shall also order the respondents to
make the said persons whole for any loss of pay they,have suffered
by reason. of the discrimination against them, by payment to each
of them of a sum of money equal.to the amount he would normally
have. earned as wages from the date of the discrimination to the date
of the offer of reinstatement, less his net earnings during said period 18
We do not consider that :Wilkinson's refusal, under the circum-
stances, to accept the respondents' offer of employment on the Dallas
15 In view of the nature of our findings herein, we do not deem it necessary to discuss
the evidence in this connection.
16 Cf. Matter of Williams Manufacturing Company, Portsmouth , Ohio, and United Shoe
Workers of America , Portsmouth, Ohio, 6 N . L R. B. 135.
17 See footnote 12, supra
16 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee1in connection with obtaining work and working else-
where than for the respondents , which would not have been Incurred but for his unlawful
discharge and the consequent necessity of his'seeking employment elsewhere . See Matter
of Crossett Lumber- Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill ` Workers Union , Local 2590, 8 N. L R' B. 440. Monies
received for work performed upon Federal , State , county, municipal , or other work-relief
projects are not considered as earnings , but as provided below in the Order, shall be
deducted from the sum due the' employee , and the amount thereof shall be paid over tq
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"extra board," made shortly before the supplemental hearing, has
affected his right to reinstatement or to reimbursement for the entire
period of his unemployment.19 Our order of reinstatement and reim-
bursement will run against both respondents, although the employees
involved were carried on the pay roll of either Dixie or Sunshine,
and compliance by either of the respondents will be deemed as com-
pliance by both with this section of our order.
Tim PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the Brotherhood by a majority of the
respondents' bus drivers as their representative, it is not necessary
to consider the petition of the Brotherhood for an investigation and
certification of representatives. Consequently, the petition will be
dismissed.
•Upon 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. All motorbus drivers of Dixie and Sunshine, including extra
drivers and excluding supervisors, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
3. By refusing and continuing to refuse to bargain collectively
with the Brotherhood as the exclusive representative of the employees
in the' above-stated unit on September 15, 1937, and at all times there-
after, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Jim McCullough, W. M. (Pete) Warren, O. C. Richards,
and W. T. (Bud) Wilkinson, thereby discouraging membership in a
labor organization, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
5. By discriminating against W. T. (Bud) Wilkinson in regard to
hire and tenure of employment because he had given testimony under
the appropriate fiscal agency of the Federal , State, county, municipal, or other govern-
ment or governments which supplied the funds for said work -relief projects . See Matter
of Republic Steel Corp . and Steel Workers' Organi-ng Committee, 9 N. L. R. B 219,
enf'd, Republic Steel Corp . v. N. L. R. B, 107 F. (2d) 472 (C. C. A. 3), cert. denied, 60
S Ct. 806, order denying cert . vacated and rehearing and cert. granted , 60 S. Ct. 1072.
10See Matter of Continental Oil Company and Oil Workers International Union, 12
N. L. R. B. 789; Matter of Stehli cE Co, Inc. and Textile Workers Union of Lancaster,
Pennsylvania, and Vicinity, Local No . 133, 11 N. L. R. B. 1397.
DIXIE MOTOR COACH CORPORATION 927
the Act, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (4) of the Act.
6. By sponsoring the withdrawal of their employees from the
Brotherhood and by otherwise interfering with, restraining, and co-
ercing their employees in the exercise of the rights guaranteed in Sec-
tion 7. of _the Act,-the respondents have engaged in and are engaging
in unfair' labor practices, within the meaning of Section 8 (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondents have, not discriminated against one Burke by
requiring as a condition of employment that he refrain from associating
himself with any labor organization or from engaging in activities
for the purposes of collective bargaining, within the meaning of Section
8 (1) 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 respond-
ents, Dixie Motor Coach Corporation and Sunshine Bus Lines, Inc.,
Dallas, Texas, and the officers, agents, successors, and assigns of each
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Railroad
Trainmen as the exclusive representative of all their motorbus driv-
ers, including extra drivers and excluding supervisors;
. (b) Discouraging membership in Brotherhood of Railroad Train-
men or in any other labor organization of their employees by discharg-
ing or refusing to reinstate any of their employees or in any other
manner discriminating in regard to their hire or tenure of employment
or any term or condition of their employment;
(c) Discharging or otherwise discriminating against any of their
employees because he has given testimony under the Act;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section-7 of the 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 all their motorbus
A rivers, including extra drivers and excluding supervisors ;
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to Jim McCullough, W. M. (Pete) Warren, O. C. Richards,
and W. T. (Bud) Wilkinson immediate and full reinstatement to their
former positions or to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges ;
(c) Make whole Jim McCullough, W. M. (Pete) Warren, O. C.
Richards, and W. T. (Bud) Wilkinson for any loss of pay they have
suffered by reason of the respondents' discrimination against them in
regard to their hire and tenure of employment by payment to each of
them of a sum of money equal to that which he normally would have
earned as wages during the period from the date of such discrimination
to the date of the offer of reinstatement, less his net earnings during
such period, deducting, however, from the amount otherwise due each
cf these employees, monies received by him during the period between
the date of his discharge and the date on which he is offered reinstate-
ment for work performed upon Federal, State, county, municipal, or
other work-relief projects, and paying the amount thus deducted to
the appropriate fiscal agency of the Federal, State, county, municipal,
or other government,or governments which supplied the funds for said
work-relief projects;
(d) Post immediately in conspicuous places, on the respondents'
premises, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to their employees, stating: (1)
that the respondents will not engage in the conduct from which they
are ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d)
,of this Order; (2) that the respondents will take the affirmative action
set forth in paragraphs, 2 (a), (b), and (c) of this Order; and (3) that
the respondents' employees are free to become or remain members of
Brotherhood of Railroad Trainmen and the respondents will not dis-
criminate against any employee because of membership or activity in
that organization;
(e) Notify the Regional Director.for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.
IT IS FURTHER ORDERED that . the supplemental complaint be, and it
hereby is, dismissed in so far as it alleges that the respondents have
engaged in an unfair labor practice, within the meaning of Section
8 (1) of the Act, with respect to one Burke.
AND IT IS FIIRTHER ORDERED that the petition for investigation and
certification of representatives filed by Brotherhood of Railroad Train-
men be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in' the consideration of the
above Decision and Order.