El Paso-Ysleta Bus Line, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1949

85 N.L.R.B. 1149 (N.L.R.B. 1949)

In the Matter of EL PASO-YSLETA Bus LINE, INC. and DIVISION 1256,
AMALGAMATED ASSOCIATION OF STREET , ELECTRIC RAILWAYS AND
MOTOR COACH EMPLOYEES OF AMERICA , A. F. L.
Case No. 33-CA-7.-Decided September 7, 1949
DECISION
AND
ORDER
On July 11, 1949, Trial Examiner Robert L. Piper issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and 8 (a) (3) of the Na-
tional Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the Respondent's exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,' with the following modifications :
We agree that the Respondent violated Section 8 (a) (1) of the
Act. However, in so finding we rely exclusively on the following in-
cidents : (1) Reynolds' interrogation of various employees as to
whether they had joined the union; and (2) Reynolds' statement to
several employees that Burnham would not have a union man work-
I The Trial Examiner made no finding with respect to the discharge of Atwood Currie
and recommended that that portion of the complaint which alleges he was discrimi-
natorily discharged be dismissed without prejudice . As no exception has been taken
to this recommendation , we shall adopt It.
85 N. L. R. B., No. 193.
1149
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing for him and that the Respondent would park the busses before
dealing with the union.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, El Paso-Ysleta
Bus Line, Inc., El Paso, Texas, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Division 1256, Amalgamated
Association of Street, Electric Railways and Motor Coach Employees
of America, A. F. L., or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees or by dis-
criminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) Interrogating its employees in any manner as to their union
affiliations or sympathies ;
(c) Threatening to shut down its operations if the above-named
Union or any other labor organization succeeds in organizing its
employees;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Division 1256, Amalgamated Asso-
ciation of Street, Electric Railways and Motor Coach Employees of
America, A. F. L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will
effectuate the policies of the Act :
(a) Offer to Dennis Bostick, Audrey Currie, and George Lusk im-
mediate and full reinstatement to their former or substantially equiva-
lent positions 2 without prejudice to their seniority or other rights and
privileges, and to make them whole for any loss of pay they may have
suffered by reason of Respondent's discrimination against them, by
2 The term "former or substantially equivalent positions" is intended to mean "former
positions wherever possible, but if such positions are no longer in existence , then to
substantially equivalent positions ." See Matter of The Chase National Bank of the City
of New York , San Juan, Puerto Rico, Branch , 65 N. L . R. B. 827.
EL PASO-YSLETA BUS LINE, INC. 1151
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages during the period from the
date of his discharge to the date of the Respondent's offer of rein-
statement, less his net earnings 3 during said period;
(b) Post in conspicuous places at its plant in El Paso, Texas, copies
of the notice attached hereto, marked Appendix A.4 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth Re-
gion, shall, after being signed by Respondent's representative, be
posted by Respondent and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, de-
faced, or covered by any other material;
(c) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in DIVISION 1256, AMAL-
GAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAYS AND MOTOR
COACH EMPLOYEES OF AMERICA, A. F. L., or any other labor or-
ganization of our employees, by discharging or refusing to re-
instate any of our employees or by discriminating in any other
manner in regard to their hire and tenure of employment, or any
term or condition of employment.
WE WILL NOT interrogate our employees in any manner as to
their union affiliations or sympathies; threaten to shut down our
operations if DIVISION 1256, AMALGAMATED ASSOCIATION OF STREET?
ELECTRIC RAILWAYS AND MOTOR COACH EMPLOYEES OF AMERICA,
A. F. L., or any other labor organization succeeds in organizing:
8 By "net earnings " is meant earnings less expenses , such as for transportation , room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent , which would not have been incurred but for the unlawful'
discrimination and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company , 8 N. L. R. B. 440. Monies received for work performed
upon Federal , State, county, municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
4 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words , "A DECISION AND ORDER" the words , "DECREE.
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,our employees; or in any other manner interfere with, restrain,
,or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Divis-
ION 1256, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAIL-
WAYS AND MOTOR COACH EMPLOYEES OF AMERICA, A. F. L., or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Dennis Bostick, Audrey Currie, and George
Lusk immediate and full reinstatement to their former or sub-
stantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of the dis-
crimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
EL PASO-YSLETA Bus LINE, INC.,
By -------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced , or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Joseph A. Butler, for the General Counsel.
Burges, Scott, Raspberry & Hulse, by Messrs. J. F. Hulse and Sebityler 11ar-
shall, of El Paso, Tex., for Respondent.
Messrs. E. D. Penn and C. F. Boozer, for the Union.
STATEMENT OF THE CASE
Upon a charge filed on February 25, 1945, by Division 1256, Amalgamated As-
sociation of Street, Electric Railways and Motor Coach Employees of America,
A. F. L. (hereinafter called the Union), the General Counsel of the National
Labor Relations Board, by the Regional Director for the Sixteenth Region
(Fort Worth, Texas), issued a complaint dated January 21, 1949, against El
Paso-Ysleta Bus Line, Inc. (hereinafter called Respondent), alleging that Re-
EL PASO-YSLETA BUS LINE, INC . 1153
spondent had engaged and was engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8 (a) (1) and (3), and 2 (6) and (7) of
the National Labor Relations Act, as amended (hereinafter called the Act), 61
Stat. 136, 29 U. S. C. Supp. I, Sec. 141, et seq. Copies of the charge, the com-
plaint, and a notice of hearing were duly served upon Respondent and the Union.,
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent : (1) from on or about December 23, 1947, to the date of the
issuance of the complaint, (a) interrogated its employees about their union
membership, (b) urged, persuaded, threatened, and warned its employees to
refrain from assisting, becoming or remaining members of the Union, and (c.)
kept under surveillance the activities of the Union or the concerted activities
of its employees; (2) discharged George Lusk, Atwood Currie, Dennis Bostick,
and Audrey Currie, its employees, on January 6, January 26, February 9 and
February 10, 1948, respectively, and has since failed and refused to reinstate
said employees, because of their membership in and activities on behalf of the
Union; and (3) by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
Respondent's answer admitted certain allegations of the complaint with
respect to the nature of its business but denied the alleged unfair labor prac-
tices and the allegations with respect to interstate commerce.
Pursuant to notice a hearing was held in El Paso, Texas, on March 1, 2, and
3, 1949, before the undersigned, Robert L. Piper, the Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel and Respond-
ent were represented by counsel and the Union by representatives. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the commence-
ment of the hearing, Respondent moved to dismiss paragraph 15 of the com-
plaint on the grounds that the facts alleged therein were not included in the
charge. This motion was denied. The language of the charge was sufficient
to include the allegation in the complaint.' The General Counsel's motion to
strike a portion of Respondent's answer which constituted a general denial,
and his motion for a bill of particulars as to Respondent's answer, were denied.'
The General Counsel's motion to amend the complaint to include another em-
ployee discharged by Respondent before August 22, 1947, was denied.' Theo
General Counsel's unopposed motion at the close of the hearing to conform
the pleadings to the proof with respect to minor variances was granted. All
parties waived oral argument. Thereafter, pursuant to leave granted to all
parties at the hearing, Respondent filed a brief which has been considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
'Respondent filed a motion to dismiss the complaint on the grounds that no charge
had been served upon Respondent as required by the Act. However, at the hearing
counsel for Respondent requested that ruling on the motion be reserved and stated that
if his investigation revealed actual receipt of the charge, he would abandon his motion,
and if the contrary , he would urge it. The motion was never urged and apparently
abandoned . The record reveals proof of proper service upon Respondent and I so find.
' Matter of S. 1V. Evans & Son, 81 N. L. It. B. 161.
3 Matter of Columbus Mfg . Co., Case No . 10-C-2056, order of the Board , dated November
30, 1948.
4 Matter of Itasca Cotton Mfg. Co ., 79 N. L. R. B. 1442.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation, maintaining its principal office at El
Paso, Texas, and is engaged in the transportation of passengers by motor bus
between El Paso and Ysleta, Texas, and intermediate points. Respondent owns
and operates approximately 13 busses and transports approximately 62,000
passengers a month. During 1947 the total revenue for all passengers trans-
ported was $84,052.27, and during the first 6 months of 1948 the revenue was
$48,428.35.
In accordance with the Board's decision in the. representation case involv-
ing Respondent,' I find, contrary to Respondent's contention, that Respondent
is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Factual background'
During 1947 and up to February 15, 1948, Charles R. Reynolds operated Re-
spondent's business as manager. Respondent operated an hourly schedule of
busses each day between El Paso and Ysleta. Reynolds as manager did the
hiring and firing, and in general was in control. The two principal stockholders
of Respondent were Thomas A. Burnham, president, and a Mr. Fulwiler.
During 1947, Respondent had approximately 11 drivers. In the months of
.Tune, July, and August, the Union began an organizing campaign among the
drivers. A number of them signed application blanks but did not actually join.
During this campaign Reynolds questioned the drivers about joining the Union,
threatened to fire those who joined, and threatened that Respondent would cease
operations if a union was organized. In August Respondent granted a wage
increase of 10 cents per hour and thereafter the union campaign died out.'
In December the Union again began an organizing drive. At a meeting held
late at night on December 23, 8 of the 11 drivers joined the Union. ° .
B. Interference, restraint, and coercion
Immediately after the meeting of December 23, Reynolds started asking the
drivers if they had joined the Union. On December 27 Respondent called a
meeting of all drivers that was addressed by Burnham and Reynolds. After
Burnham had indicated Respondent could not raise wages, Reynolds took the
floor and said that the Union was a bunch of radicals and that everything had
been all right until Dennis Bostick (who was present at the meeting) had
become one of Respondent's drivers. A few days later Reynolds told several
of the drivers that Respondent would park the busses before dealing with the
Union. Reynolds also said to some of the drivers that Burnham had no union
"Matter of El Paso-Ysleta Bus Company, Incorporated, 79 N. L. R. B. 1068.
d The record contains little or no dispute as to these facts.
7 These occurrences are outside the scope of the complaint, and no finding of unfair labor
practices is based thereon.
EL PASO-YSLETA BUS LINE, INC. 1155
men working for him and would not have a union man . These facts were testi-
fied to by employees Bostick and Audrey Currie, corroborated by Robert Newman,
presently employed by Respondent, and Patrick Wilson, formerly a driver and
Reynolds' successor as manager , and substantially admitted by Reynolds.
George Lusk in the main corroborated these facts except that he said Reynolds
had not questioned him about his union affiliations. Newman testified that Reyn-
olds questioned him about belonging to the Union, and after he had admitted
joining, asked him if he liked his job. Reynolds told Newman that he could get
out of the Union by not paying his dues, and that there were ways for Respondent
to get rid of the Union. Newman corroborated the fact that Reynolds said
Respondent would close up before allowing the Union to get in. Newman further
stated he quit the Union because four other union members were fired and he
was scared. He advised Reynolds that he was quitting the Union, and did quit
by not paying his dues. Newman was not discharged and was working for
Respondent at the time of the hearing. Wilson, who succeeded Reynolds as
manager, joined the Union as a driver. He admitted on cross-examination that
Reynolds questioned him and the other drivers about joining, that he told Rey-
nolds he had joined, that the four drivers who subsequently quit the Union so
advised Reynolds, and that the four who remained in the Union were discharged.
Reynolds admitted questioning practically all of the drivers about joining the
Union, with the avowed purpose of determining which drivers he could depend
upon in the event of a strike. He also admitted that possibly he had told the
drivers, that Burnham and Fulwiler were opposed to the Union, and that he had
reported to Burnham how many drivers he could depend on. He further ad-
mitted telling Newman the way out of the Union was to stop paying dues. He
also said that he had told the drivers that Respondent would park the busses
rather than deal with the Union, since Respondent could not afford union wages.
He further said that Bostick was very outspoken in favor of the Union
and that Respondent had no trouble until he became one of the drivers. Reynolds
admitted that all the drivers except four who were subsequently discharged had
told him they had made a mistake in joining the Union. Reynolds said that
after he had questioned the drivers about joining the Union, he asked Burnham
what he was going to do about the Union, and told him that he (Reynolds) knew
what he would do about it.
The record is patently clear as to Respondent's course of interference, restraint,
and coercion. I find that Respondent interrogated its employees about their
union membership, and urged, persuaded, threatened, and warned its employees
to refrain from assisting, becoming or remaining members of the Union, by
threatening discharge, by threatening to shut down the business, and by urging
its employees to withdraw from the Union by not paying dues, thereby interfering
with, restraining, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
Although Respondent's statements to its employees at the meeting of December
27 were expressive of its antipathy toward the Union, they did not contain
any threats of reprisal or force or promise of benefit and are privileged under
Section 8 (c) of the Act. Accordingly, no finding of interference, restraint, or
coercion is made with respect to them.'
I find no substantial, reliable, or probative evidence that Respondent kept under
surveillance the activities of its employees or the Union.
8 Matter of Babcock d Wilcox Co., 77 N. L. R. B. 577; Matter of Hinde t Dauch Paper
Co., 78 N. L. R. B. 488.
857829-50-vol. 85-74
1156 DECISIONS OF NATIOINIAL LABOR RELATIONS BOARD
C. The discriminatory discharges
1. Dennis Bostick
Bostick began work as a driver for Respondent in May 104ti. As previously
indicated, he was active in the organization of the Union and was singled out
by Respondent at the meeting of December 27 as the cause of all the trouble.
He was asked by Reynolds if he had joined the Union, was told that Respondent
would have no union men, and was warned that Respondent would park the
busses rather than deal with the Union. He was a member of the executive
board of the Union. On January 27, 1948, after the discharge of Atwood
Currie, Bostick asked Reynolds if he could have Currie's run. Reynolds
accused Bostick of being a union organizer, and said that he was giving the
run to another driver, Davenport, who had quit the Union and on whom
Reynolds could depend. Because Davenport had less seniority than Bostick,
Bostick complained to Burnham about Reynolds' action. Burnham told Bostick
that the runs were assigned on a seniority basis and that he did not know
why Davenport was getting the run, and complimented Bostick on his work.
Bostick did not get the assignment. None of this was denied by Respondent,
and the interrogation and threats were admitted by Reynolds.
On February 9, several days after Bostick spoke to Burnham, Respondent's
nightman handed Bostick his final check and discharge slip at 1: 30 a. in. after he
brought in his bus. Bostick had received no warnings or complaints, and was
given no reason for his discharge. The next day he spoke to Reynolds and asked
him why he had been fired, and Reynolds said that he had been instructed not to
give any reason. Reynolds admitted that Bostick was fired at 1: 30 a. in., that he
was never told the reason for his discharge, that no one else had ever been fired in
the early hours of the morning by delivery of a check and discharge slip, and that.
Bostick's notice of discharge contained the words, "circumstances beyond our
control" as the reason for his discharge.
Respondent advanced at the hearing Bostick's negligence in burning out a bus
motor as the reason for his discharge. Reynolds testified that on the night of
January 29, 1948, Bostick took a bus out on the last run, which did not terminate
until 2: 30 a. in. He returned the bus to the lot, and the next morning Reynolds
discovered that the motor was frozen from excessive heat, and that the heat gauge
indicator on the dashboard was jammed in the red, or danger, zone. Reynolds, a
mechanical engineer, explained that a motor "freezes" from excessive heat and is
ruined beyond repair after this happens. The heat causes the pistons to stick
and render the motor worthless.
Bostick testified that the evening in question was the coldest night of the year
in El Paso, which was not disputed. He had been driving his regular bus, number
11, and pulled into Respondent's lot at 11: 30 p. in. and advised the nightman
that his bus was not running properly. The nightman told him to take bus
number 9, which was standing on the lot. Bostick testified that it was not normal
for bus 9 to be on the lot, as it was a regular bus and not a spare, and that it
would not normally be there at that time unless something was wrong with it.
Bostick started out on his last run with number 9, and discovered that it was not
running properly. As a result, instead of making the run to Ysleta, he stopped at
the city limits of El Paso and waited for the bus run by Respondent's competitor,
and transferred his passengers to that bus. Thereafter he drove back to Respond-
ent's lot and left bus 9 there. He denied that the bus was overheated or that he
froze the motor, but stated that it was "missing" and not running right. Reynolds
EL PASO -YSLETA BUS LINE, INC . 1157
on cross-examination admitted bus 9 was not Bostick's regular bus, was not a
spare, and would not normally be on the lot at 11: 30 p. m. unless something was
wrong with it or the nightman had mistakenly sent out the wrong bus. Reynolds
admitted that because of the extreme cold, the water on the lower hoses could
have frozen. Under such conditions, the bus would run. However, with a
"frozen" or stuck motor the bus would not run. Bostick's statement of trans-
ferring his passengers was not disputed and it was conceded that he returned the
bus to the lot. If the motor "froze" or stuck, it must have happened at the exact
moment Bostick arrived at the lot.. Conceivably such a coincidence is possible,
but certainly improbable. Reynolds admitted that no one ever spoke to Bostick
about it, that he was never given a reason for his discharge, and that the discharge
did not take place until 11 days after the incident with bus 9. Reynolds also
admitted that Bostick had told the nightman there was something wrong with bus
9 when he took it out, and that although it was not Bostick's regular bus, he
(Reynolds) never inquired why Bostick was driving a different bus.
Under all the circumstances I find Bostick's testimony to be credible, and find
that he did not negligently freeze the motor of a bus. The preponderance of the
credible evidence in the whole record convinces me, and I so find, that Respondent
discharged Bostick on February 9, 1948, because of his union activities, and not
because of his alleged negligence on the job, thereby discriminating against him
in regard to his hire and tenure of employment, discouraging membership in the
Union, and interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Audrey Currie
Mrs. Audrey Currie began driving for Respondent in June 1945. In August of
1947 she signed an application to join the Union and in December of 1947 she
joined. She, her husband, and Bostick were active in the December campaign
and in getting the drivers to the meeting of December 23. During the organi-
zational campaigns and after joining the Union, Mrs. Currie also experienced the
interrogation concerning union membership and the threats in connection there-
with by Reynolds previously discussed herein. After completing her run on
February 10, 1948, she saw Reynolds and had a conversation with him, but nothing
was said about a discharge. The next morning Reynolds called and advised her
to pick up her check, saying that he thought it would save her some embarrass-
ment. Mrs. Currie and her husband saw Reynolds that afternoon. He gave her
her final check and told her, "I hate to do this, but due to circumstances beyond
;my control, I will have to let you go." \o reason for discharge was ever
advanced to Mrs. Currie. She testified that she had received no complaints or
reprimands from Respondent, and was unaware of any cause for discharge.
She also said that Reynolds told her that he had been instructed not to give her_
a reason for the discharge.
Respondent contended that Mrs. Currie was fired because of a number of com-
plaints received from passengers. Reynolds admitted all of the complaints except
one were anonymous, and could not recall or produce the name of that complain-
ant. The complaints were generally to the effect that Mrs. Currie was uncivil
to patrons. Reynolds elaborated on this by saying that passengers complained
that Dirs. Currie was grouchy and failed to stop at discharge points. Reynolds
testified that he could not remember what complaints Mrs. Currie failed to
explain, nor what complaint caused her discharge. Reynolds admitted that he
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Mrs. Currie he hated to let her go but couldn't help it. Reynolds further said
a complaint was received about her asking patrons to sign a petition. He said
that Mrs. Currie denied circulating a petition but that, although she had never
]led before, he did not believe her. He admitted that he did not assign the com-
plaint about a petition as a reason for her discharge, but said he told her he had
received too many complaints. Reynolds made no attempt to explain why he
told Mrs. Currie that he hated to let her go. Mrs. Currie, on rebuttal, denied
that Reynolds had ever told her about any complaints about her being uncivil.
She admitted that he did ask her about a petition some time after the drivers
joined the Union. She said that, she had never circulated any petition, but that
in connection with the Union's representation case before the Board,' she had
made inquiries among her regular passengers to ascertain where they worked in
order to aid in the determination of the interstate commerce question. No docu-
ments were involved and nobody was asked to sign anything.
Considering the witnesses and all of the evidence, I find the testimony of Mrs.
Currie to be credible, and accordingly find that Respondent did not advise her of
any complaints, assigned no reason for her discharge, and that Reynolds told
her that he had been instructed not to give her a reason for the discharge.
The preponderance of the credible evidence in the whole record convinces me,
and I so find, that Respondent discharged Mrs. Currie on February 10, 1948,
because of her union activities, and not because of complaints received from
patrons about her, thereby discriminating against her in regard to her hire and
tenure of employment, discouraging membership in the Union, and interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
3. George Lusk
George Lusk was employed by Respondent as a driver in September 1947. He
attended the December 23 meeting and joined the Union . Thereafter Reynolds
told him that Respondent would shut down before it would have a union. Lusk
and Newman drove what was known as the Cinecue Park run. On January 5,
1948, Reynolds advised Lusk that Respondent was discontinuing the run because
it was unprofitable . Reynolds told Lusk that he was laid off , but that he should
keep in touch with Respondent and that he ( Reynolds ) would advise Lusk if
anything opened up . Lusk testified , and Reynolds admitted , that a new driver
was employed by Respondent the same clay that Lusk was laid off. Lusk also
said, and Respondent did not deny , that another new driver was employed by
Respondent in the next 2 days . . At the time Respondent discontinued the
CCinecue Park run, Newman was not laid off. He testified , and Respondent ad-
mitted, that he was retained and was paid for several days he did not work
until assigned a new run. Newman admitted , and Respondent did not deny, that
he told Reynolds after Respondent took off the Cinecue Park run that he was
quitting the Union.
Respondent contended that Lusk was laid off because of the discontinuance of
the Cinecue Park run. Lusk was the driver with the least seniority . However,
Respondent hired another man the same day and another the following day,
which completely negates its defense. In addition thereto, when Bostick was
fired on February 9, Reynolds admitted that .he did not contact Lusk to ask him
to return as a driver , although he did not deny that he bad promised to let Lusk
know if an opening occurred . After Wilson became manager, Lusk asked him
See footnote 5, supra.
EL PASO-YSLETA BUS LINE, INC. 1159
for a job. Wilson told Lusk Respondent had too many drivers, and yet a few
days later, Respondent hired a new driver. This was not denied by Respondent.
During the course of the hearing, Respondent attempted to bolster its reasons
in connection with Lusk's lay-off, and advanced an accident that Lusk had had
with a bus as a contributory cause of his discharge. Because Respondent flatly
had taken the position that Lusk had been laid off because of lack of work, this
attempt to assign a reason for his discharge, after the evidence had revealed
that others were hired immediately following Lusk's "lay-off," was completely
unconvincing to me. With respect to Lusk, Respondent's answer alleged : "Lusk
was laid off for the reason that the run on which he was operating was dis-
continued, and this was the sole reason for his being laid off." [Emphasis
supplied.]
Respondent contended in its brief that it did not know that Lusk was a mem-
ber of the Union. Lusk testified that Reynolds did not ask him if he had
joined the Union. Reynolds testified that he tried to ask all of the drivers, but
might have missed one or two. Apparently Lusk was one of them. On this
basis Respondent urged that it did not know Lusk belonged to the Union. Lusk
was present at the meeting of December 23 and joined the Union then, at the
same time as Wilson, who succeeded Reynolds as manager, and Newman, who
quit the Union and retained his job. Reynolds was quite assiduous in ascertain-
ing who joined the Union, and because only 8 of the 11 drivers did so, and
all except Lusk were questioned by Reynolds and admitted to him that they
had joined, I find it incredible that Respondent was not well aware of all who
were members. By the time Lusk was discharged, several drivers had at Re-
spondent's suggestion dropped out of the Union by failing to pay dues, and it
would seem probable that Reynolds, if he didn't already know, would have
ascertained who was in the Union from those who had resigned. The entire
course of events, coupled with the fact that only the four who remained in
the Union were discharged, convinces me that Respondent knew exactly which
drivers belonged to the Union. The Board and the courts have frequently held
that it is not essential to have direct evidence of the employer's knowledge of
union membership to so find m
The preponderance of credible evidence in the whole record convinces me, and
I so find, that Respondent discharged Lusk on January 5, 1948, because of his
union activities, and not because of a shortage of work or negligent damage
to property, thereby discriminating against him in regard to his hire and tenure
of employment, discouraging membership in the Union, and interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
4. Atwood Currie
Atwood Currie did not testify and the General Counsel offered no evidence
in support of the allegation of Currie's discriminatory discharge. The General
Counsel explained that Currie was in the United States Army and presently
stationed in Japan, and that the General Counsel was unable to secure his
attendance. Respondent adduced evidence to show that Currie was discharged
for cause.
'° N. L . R. B. v. Link Belt Co., 311 U. S. 584 (1941) ; N. L. R. B. V. Entwistle Mfg. Co.,
120 F. 2d 532 (C. A. 4, 1941) ; N. L. R. B. v. Keystone Freight Lines, 126 F. 2d 414 (C. A. 10,
1941 ) ; F. W. Woolworth v. N. L. R. B., 121 F. 2d 658 (C. A. 2, 1941), where the court
found employer knowledge of union membership from evidence that the employer knew the
identity of many union members and that it discharged a high proportion of union members.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the circumstances , no finding with respect to Currie's discharge
is made, and it will be recommended that that portion of the complaint which
alleges that Currie was discriminatorily discharged be dismissed without
prejudice "
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Because it has been found that Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminated in regard to the hire and
tenure of employment of Dennis Bostick, Audrey Currie, and George Lusk.
It will therefore be recommended that Respondent offer to each of them im-
mediate and full reinstatement to his former or substantially equivalent posi-
tion,11 without prejudice to his seniority or other rights and privileges, and
make each of them- whole for any loss of pay he may have suffered by reason
of such discrimination, by payment to each of a sum of money equal to that
which he normally would have earned as wages from the date of his discrimina-
tory discharge to the date of the offer of reinstatement, less his. net earnings
during such period 1'
Since Respondent's interrogations concerning union membership, threats
against joining or assisting the Union, threats to go out of business if its
employees joined the Union, and discriminatory discharges go to the very heart
of the Act and indicate a purpose to defeat self-organization of its employees,
I am persuaded that the unfair labor practices committed are related to other
unfair labor practices proscribed and that the danger of their commission in
the future is to be anticipated from Respondent's conduct in the past. Ac-
cordingly, in order to make effective the interdependent guarantees of Section
7 and thus effectuate the policies of the Act, it will be recommended that
Respondent cease and desist from in any manner infringing upon the rights
of employees guaranted by the Act."
Upon the basis of the above findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
11 Matter of Ohio Tool Co., 47 N. L. R. B. 1366, 1389, where the Board dismissed without
prejudice because the complainant was prevented from testifying because of his induction
into the armed forces of the United States, and the record contained no details of his case
other than the bare fact of discharge.
See also, G. W. Hume Co., 71 N. L . R. B. 532.
" Matter of The Chase National Bank, San Juan , Puerto Rico, Branch, 65 N. L. R. B. 827.
11 Matter of Crossett Lumber Company , 8 N. L. R . B. 440, 497-98.
14 May Department Stores v. N . L. R. B., 326 U. S. 376 ; N. L. R. B. v. Entwistle Manu-
facturing . Co., 120 F. 2d 532 ( C. A. 4).
EL PASO-YSLETA BUS LINE, INC. 1161
2. By discriminating in regard to the hire and tenure of employment of
Dennis Bostick, Audrey Currie, and George Lusk, thereby discouraging mem-
bership in the Union, Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in the unfair labor practice, as alleged in the
complaint , of keeping under surveillance the activities of its employees or the
Union.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, it is recommended that Respondent, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in the Union, or any other labor organization of
its employees, by discharging or refusing to reinstate any of its employees or by
discriminating in any other manner in regard to their hire or tenure of employ-
ment, or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act :
(a) Immediately offer to Dennis Bostick, Audrey Currie, and George Lusk full
reinstatement each to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges, and make each whole
for any loss of pay he may have suffered by reason of Respondent's discrimination
against him, by payment to him of a sum of money equal to the amount which he
normally would have earned as wages from the date of his discharge to the date
of Respondent's offer of reinstatement, less his net earnings during said period ;
(b) Post at its plant in El Paso, Texas, copies of the notice attached hereto,
marked Appendix A. Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being signed by Respondent's repre-
sentative, be posted by Respondent and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Sixteenth Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report, what
steps Respondent has taken to comply herewith.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring Respondent to take the action
aforesaid.
It is recommended that the complaint be dismissed insofar as it alleges that
Respondent kept under surveillance the activities of its employees and the Union.
It is further recommended that the complaint be dismissed without prejudice
insofar as it alleges that Respondent discharged or otherwise discriminated
against Atwood Currie because of his union or concerted activities.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington 25, D. C., an original and six copies of a statement in
writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such statement
of exceptions and/or brief, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in Section
203.46, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no statement of exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 11th day of July 1949.
ROBERT L. PIPER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in DIVISION 1256, AMALGAMATED AS-
SOCIATION OF STREET , ELECTRIC RAILWAYS AND MOTOR COACH EMPLOYEES OF
AMERICA, A. F. L., or any other labor organization of our employees, by dis-
charging or refusing to reinstate any of our employees or by discriminating
in any other manner in regard to their hire and tenure of employment, or
any term or condition of employment.
EL PASO-YSLETA BUS LINE, INC. 1163
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist DIVISION 1256, AMALGAMATED ASSOCIATION- OF
STREET, ELECTRIC RAILWAYS AND MOTOR COACH EMPLOYEES OF AMERICA, A. F.
L., or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Dennis Bostick, Audrey Currie, and George Lusk im-
mediate and full reinstatement to their former or substantially equivalent
position without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay suffered as a
result of the discrimination.
All our employees are free to become.or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
EL PASO-YSLETA Bus LINE, INC.,
Employer.
By -------------------------- ------
(Representative ) ' (Title)
Dated ----------------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.