Missouri, Kansas & Oklahoma Coach Lines

National Labor Relations Board - Board Decisions

Nov 2, 1938

9 N.L.R.B. 597 (N.L.R.B. 1938)

In the Matter of MISSOURI, KANSAS & OKLAHOMA COACH LINES and
INTERNATIONAL ASSOCIATION OF MACHINISTS
In the Matter Of MISSOURI, KANSAS & OKLAHOMA COACH LINES and
BROTHERHOOD OF RAILROAD TRAINMEN
In the Matter of MISSOURI, KANSAS & OKLAHOMA COACH LINES and
AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND
MOTOR COACH EMPLOYEES OF AMERICA, LOCAL DIVISION 1147
Cases Nos. C-257, C-308) R-383, and R-384. Decided November 2,
1938
Motor Bus Transportation Industry-Interference, Restraint , and Coercion:
expressed opposition to labor organization : disparaging remarks 'about union;
threats to close shop ; sponsoring activities of company -favored union-Unit
Appropriate for Collective Bargaining : motorcoach employees or drivers; no
controversy as to-Representatives : proof of choice - union authorizations-
Collective Bai gaining: refusal to recognize representatives , as exclusive repre-
sentative ; controversy with company -favored union , although no members of
such union at time of request, alleged as excuse for refusal to bargain-Dis-
crananat,on : discharges : for giving testimony tinder the Act ; for union activities
to discourage membership in union ; charges of, not sustained as to seven
employees-Reinstateinen t Ordered: employees discriminatorily discharged-
Back Pay: awarded-Investigation of Representatives: petitions for, dismissed
because of order to employer to bargain.
Mr. Ebner P. Davis, and Mr. Warren, Woods, for the Board.
Mr. R. D. Hudson, and M11r. W. E. Hudson, of Tulsa, Okla., for the
respondent.
Mr. L. G. Fenn, of Tulsa, Okla., for the I.A.M.
Mr. W. D. Nutter, and Mr. A. I. Robinson, of Kansas City, Mo.,
for the B.R.T.
• Mr., C. M. Ruyle, of Springfield, Mo., for the Amalgamated.
Mr. George Rose, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed May 28, June 7 and 15, 1937, by the Inter-
national' Association of Machinists, herein called the I.A.M., the
9N.L R.B,No.55.
597
598 NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, herein called the Board, by Edwin
A. Elliott, Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued its complaint dated August 26, 1937, against the Mis-
souri, Kansas & Oklahoma Coach Lines, Tulsa, Oklahoma, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
In respect to the unfair labor practices the complaint alleged, in
substance, (1) that the respondent on June 15, 1937, and at all times
thereafter had refused to bargain collectively with the I. A. M. as
the exclusive representative of the employees of the respondent en-
gaged as repair and maintenance employees, said employees con-
stituting an appropriate bargaining unit, and a majority thereof
having designated said I. A. M. as their representative for collective
bargaining; and (2) that the respondent had discharged and refused
to reinstate Lloyd W. Kifer, R. L. Harvey, and William Joe Ray
for the reason that they had become members of the I. A. M. The
complaint and accompanying notice of hearing were duly served
upon the respondent and the I. A. M.
The respondent filed an answer dated September 8, 1937, alleging
that it had never been furnished with accurate information that the
I. -A. M. had been designated as the representative for collective
bargaining of its employees, in the unit of machinists, and denying
that it had discharged Lloyd W. Kifer, R. L. Harvey, and William
Joe Ray because of union activities.
On June 21, 1937, the Brotherhood of Railroad Trainmen, herein
called the B. R. T., filed with the Regional Director a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of the employees of the respondent, employed as bus
drivers, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act.
On July 20, 1937, the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees, Local Division 1147, herein
called the Amalgamated, filed with the Regional Director a petition
alleging that a question affecting commerce had arisen concerning the
representation of the employees of the respondent employed as driv-
ers, and engaged in preparing the 'busses for operating, shopmen, and
repairmen, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act.
On July 26, 1937, on the basis of these petitions, the Board, acting
pursuant to Section 9 (c) of the Act, and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1,
DECISIONS AND ORDERS 599
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice; and the Board further ordered, pursuant to Article
III, Section 10 (c) (2), of said Rules and Regulations, that the two
cases based on the petitions of the B. R. T. and the Amalgamated be
consolidated for,the purpose of hearing.
On June 26, 1937, the I. A. M. filed with the Regional Director
a petition alleging that a question affecting commerce had arisen
concerning the representation of the employees of the respondent en-
gaged as repair and maintenance employees and requesting an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the Act. On August 10, 1937, the Board acting pursuant to Sec-
tion 9 (c) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
Upon charges duly filed June 7, June 26, and August 14, 1937, by
the B. R. T., the Board, by the Regional Director, issued a complaint
dated August 25, 1937, against the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act.
In respect to the unfair labor practices, this complaint alleged, in
substance, (1) that the respondent on June 15, 1937, and at all times
thereafter, had refused to bargain collectively with the B. R. T., as
the exclusive representative of the employees of the respondent, en-
gaged in operating motorbusses, said employees constituting an ap-
propriate bargaining unit, and a majority thereof having designated
said B. R. T. as their representative for collective bargaining; (2)
that the respondent had discharged certain employees, reinstated
some without back pay, and suspended others for varying periods for
the reason that they had become members of the B. R. T., thereby dis-
couraging membership in a labor organization; and (3) that the
respondent extended its facilities to the Amalgamated, a labor organ-
ization, and furnished transportation to it, and encouraged member-
ship therein. The complaint and accompanying notice of hearing
were duly served upon the respondent, the B. R. T. and the
Amalgamated.
The respondent filed an answer on September 8, 1937, to the com-
plaint dated August 25, 1937, in which it stated that it had not bar-
gained collectively with the B. R. T. because of the controversy
between the B. R. T. and the Amalgamated, and admitted that it had
discharged or suspended certain employees as alleged, but denied that
such discharges or suspensions were because of union, activities:
600 NATIONAL LABOR RELATIONS -BOARD
On August 10, 1937, the Board ordered that pursuant to Article
III, Section 10 (c) (2), of said Rules and Regulations, that the five
above described cases be consolidated for the purpose of hearing.
Pursuant to notice a joint hearing on the complaints and petitions
was held at Tulsa, Oklahoma, on September 7, 8, 9, 10, 27, 28, 29, 30,
and October 1, 1937, before W.' P. Webb, the Trial Examiner duly
,designated by the Board. The Board, the respondent, and the Amal-
gamated were represented by counsel, the B. R. T. and the I. A. M.
by representatives, and all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
produce evidence bearing upon the issues was afforded all parties.
At the conclusion of the Board's case in the matter of the respond-
ent and the I. A. M., the respondent moved to dismiss the complaint.
The Trial Examiner reserved ruling on the motion at the hearing, but
denied the motion in his Intermediate Report, subsequently filed.
During the hearing, counsel for the respondent having expressed
a desire to enter into a discussion for the purpose of settlement and
disposition of the petition of the I. A. M., the Trial Examiner granted
a recess to permit the parties to prepare a stipulation. Soon after
the resumption of the hearing, there was offered in evidence by
counsel for the Board on September 8, 1937, and made a part of the
record -without objection, a stipulation signed by all the parties, which
provided as follows : (1) That the respondent recognized the "I. A.- M.
as the exclusive bargaining agency for all of the employees in said
unit in respect to rates of pay, wages, hours of employment or other
conditions of employment and agrees to bargain with said I. A. M.
in respect to such conditions of employment on request, within the
meaning of the Act"; (2) that the Board might "certify in writing
said I. A. M. as exclusive representative of said employees for the
purposes of collective bargaining." On October 23, 1937, the Board
issued a Decision and Certification of the I. A. M. as representative 1
of the respondent's employees engaged as mechanics or body workers,
exclusive of those in a supervisory capacity or porters.
On October 9, 1937, the Trial Examiner filed an Intermediate Re-
,port in the matter of the respondent and the 1. A. M. in which he
recommended that the complaint be dismissed with respect to the al-
legations that Lloyd W. Kifer, R. L. Harvey, and William Joe Ray,
were discharged because of union activities. On October 18, 1937,
exceptions to the Intermediate Report were filed by the I. A. M.
The Board has reviewed all the rulings of the Trial Examiner on
the motions and on objections to the admission and exclusion of evi-
dence, and finds that no prejudicial errors were committed. Those
rulings are hereby affirmed. The Board has reviewed the excep-
13 N. L . It. B. 879.
DECISIONS AND ORDERS 601
^tions to the Intermediate Report and, save to the extent that the
findings below depart from those of the Trial Examiner, finds that
the exceptions are without merit. The Board departs from the
Trial Examiner's finding that Lloyd W. Kifer, R. L. Harvey, and
William Joe Ray were not-discriminatorily discharged. - - -
The hearing in the matter of the respondent and the B. R. T. was
adjourned on September 10, 1937, and resumed on September 27,
1937. At this time, counsel for the Board moved to amend the com-
plaint to add further allegations that the respondent had discrim-
inatorily discharged and suspended certain additional employees,
for the reason that they had joined the B. R. T., and had discharged
J. D. Waddle because he gave testimony in a hearing before a Trial
Examiner of the Board at Springfield, Missouri. A copy of the
motion was duly served upon counsel for the respondent. The
motion was granted by the Trial Examiner after the counsel for the
respondent waived further notice. Counsel for the Board offered,
without objection by the respondent, on behalf of the-Amalgamated,
an amended petition for investigation and certification of the motor-
coach operators employed by the respondent. During the course of
the hearing the Trial Examiner granted the motion of, counsel for
the Board to dismiss the complaint in so far as it alleged that the
respondent had discriminatorily suspended E. L. Carney and W. P.
Woods.
On November 29, 1937, the Trial Examiner filed an Intermediate
Report in the matter of the respondent and the B. R. T., in which he
found that the respondent had engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1), (3), (4), and (5)
and Section 2 (6) and (7) of the Act. Exceptions to the recom-
mendations of the Intermediate Report were thereafter filed by the
respondent and the B. R. T. On January 10, 1938, a supplement- to
the Intermediate Report was filed by the Trial Examiner in which
he recommended that the allegations of the complaint as to Wayne
Treaster be dismissed as he had been reinstated to his former
position.
The Board has reviewed the rulings of the Trial Examiner on
motions and on objections to the admission of evidence and finds
that no prejudicial errors were committed. These rulings are hereby
affirmed. The Board has reviewed the exceptions to the Intermediate
Report and, save to the extent that the findings below depart from
those of the Trial Examiner, finds that the exceptions are without
merit. The Board departs from the Trial Examiner's finding that
Charles Akers was not discriminatorily discharged.
(302 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Missouri, Kansas & Oklahoma Coach Lines is a corporation or-
ganized and existing under the laws of Oklahoma. It is engaged
in the business of transporting by bus for hire, passengers, light
express, mail, and newspapers, under regularly established tariffs
through Oklahoma, Missouri, and Kansas. It carries about $12,000
worth of mail and newspapers a year. About 20 per cent of this
mail and more than 20 per cent of its passengers are carried across
State lines. The respondent makes connections with various other
interstate bus lines, Santa Fe Trailways, Illinois, Pennsylvania, and
Capital Greyhound Lines and others. The respondent has filed ap-
plications for a permit from the Interstate Commerce Commission
under the Motor Carrier Act of 1935.
The respondent operates from 30 to 40 buses. Its employees are
divided into the following groups : Shop employees, office employees,
drivers, and ticket agents. At the time of the hearing, 19 were em-
ployed in the garage and shop, of whom 11 were mechanics, 4 were
in the body shop and 4 were porters. Forty-nine men were employed
as bus operators and 10 as office employees.
H. THE ORGANIZATIONS INVOLVED
International Association of Machinists is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership machinists of various classifications, including mechanics and
repairmen employed in garage and repair shops.
Brotherhood of Railroad Trainmen was organized on September 23,
1883, and is a labor organization with a membership composed of vari-
ous classes of employees in the transportation industry. Since 1933,
it has admitted motorbus drivers to membership.
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America is a labor organization affiliated with the
American Federation of Labor. All employees of street and electric
railways are eligible for membership, and in recent years it has also
admitted bus drivers to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
About April 20, 1937, L. G. Fenn, a lodge representative of the
I. A. M., started to organize the machinists employed by the respon-
dent. R. L. Harvey signed an application for membership on April
DECISIONS AND ORDERS 603
26, and Lloyd W. Kifer on April 28. On April 29, Bunce, the re-
spondent's shop superintendent, asked Kifer about the men joining
the I. A. M. and warned him that Allen, the president of the re-
spondent, "would close the shop before he would recognize the Union."
Bunce also told him that the men would obtain no advantage by
joining the Union and paying a part of their salaries to that organiza-
tion, as it would be unable to get them any raise in pay. He referred
to the I. A. M. as "a God damned bunch of agitators."
On another occasion, Bunce told Harvey that if he would give up his
union card, he would be promoted to the position of shop foreman.
The following day he was again promised the same position.
C. F. O'Banion, who is still an employee of the respondent, testified
that on June 4, 1937, when he made application for employment as
a mechanic, Bunce asked him how he felt towards the I. A. M. Ap-
parently O'Banion gave Bunce the impression that he did not belong
to the I. A. M. as Bunce told him "he didn't want him to do like one of
his drivers did-promise him that he wouldn't sign up with the
Union and then sign up, like this other driver had done." Bunce also
told him "that all they were after was just the money." Later, at
the time of the organization of the Amalgamated, he remarked to
O'Banion that he "had better join up," that "they were going to have
that Union."
Sometime about June 15, 1937, Ruyle, an organizer for the Amal-
gamated, went to the respondent and asked permission to organize
the drivers. The respondent apparently displayed an entirely dif-
ferent attitude toward organization by this Union, for it saw in it
the possibility of defeating organization by the I. A. M. and the
B. R. T. Bunce took Ruyle to Stillwater, Oklahoma, in a company
car, admittedly for the purpose of introducing Ruyle to some of the
drivers. Bunce also took Ruyle to Springfield, Missouri, with that
same object in view.
At one time in this period Fleming, a bus driver, was in his bus,
having just driven tip to the gas pump inside the respondent's
garage in Tulsa, when Ruyle got into the bus and started talking
about the Amalgamated. "He said the company had given him
authority to come down and talk to the men about signing them up."
Bunce came by and Fleming asked him about Ruyle's authority.
Bunce stated "that the company give him the authority and that was
the one they were going to recognize." This was denied by Bunce
on the stand, although he admitted telling Fleming to "use your
own judgment." His denial is unconvincing in view of the acknowl-
edged assistance given to the Amalgamated in its organizational
campaign.
On another occasion Bunce asked Waddle, one of the bus drivers,
about his attitude towards the B. R. T., and a little later told him to go
604 NATIONAL LABOR RELATIONS BOARD
up to the Hudson Hotel, make application for membership in the
Amalgamated, and vote for the officers. This also was denied by
Bunce, but his efforts in behalf of the Amalgamated, as described
above, make his denial unpersuasive.
The respondent also gave the Amalgamated the right to the check-
off on two pay days. The respondent's president, Allen, stated that
this was done without his knowledge, and that he stopped it as soon
as he learned of it. In view of the other activities of the Amalga-
mated which were sponsored by the respondent, this statement is very
unconvincing. It appears probable that the respondent stopped short
of anything further only because charges were filed by the B. R. T:
with the Board.
We find that by the above actions, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. The discharges
Lloyd W. Ki f er went to work for the respondent March 4, 1935.
He. wasTa working foreman in the body shop, and apparently his
work there was entirely satisfactory, as no criticism of it was
voiced. On April 28, 1937, he signed an application for member-
ship in the I. A. M., but he was not active in obtaining memberships.
. The following day Bunce stopped him as he was leaving and
talked about the I. A. M., as has been related above. He asked Kifer
if he- had joined up with the I. A. M. Kifer replied that he had
filed an application for membership. Bunce advised him that Allen
"would close the shop before he would recognize the Union." Kifer
understood that Bunce referred to the body shop.
At this time, the respondent had been expecting to build three
more bus bodies. On the morning of April 30, notices were posted
on the window that three White used buses were for sale. On the
evening of April 30, the men in the body shop were laid off. Spur-
gin, the secretary-treasurer of the respondent, testified that the re-
spondent was losing money on the body shop and was "short of
money." Allen explained "that their jobs were not standing up"
and their "competitors were coming out with what is known as a
snub-nosed job." Finally it was decided to cut out the body shop
for the time being. Allen also related that one of the big transpor=
tation companies had recently "laid off their whole coach shop of
about 30 men." Spurgin stated that he had advised that they keep
a-small, force there-enough to do repairs, but he had been overruled.
About a week after the shut-down, the respondent called back two
men to work in the body shop. Spurgin stated on the stand, "We
thought they were going to save money by keeping the whole body
DECISIONS AND ORDERS 605
works shut down for a while, but, we found out we couldn't, and
we had to pay some of them just the same." Spurgin further ex-
plained that this reversal of policy was due to the wrecking of one
of their busses in a collision with a truck. The side of the bus was
torn off, and the two men were called back to work on it.
One of those called back, Woodward, did not belong to the Union
and had less seniority than Kifer. The reason that Allen gave for
not recalling Kifer, who had been a working foreman and was prob-
ably one of the best workers, was that the respondent did not wish
to pay him 551/^¢, an hour and "he was not satisfied with 551/0."
Allen also stated that he "didn't think" Kifer would- work for 500
an hour, but he had made no effort to find out.
On May 15, 1937, there was a meeting at which the Regional
Director for the Sixteenth Region, a representative of the respondent,
Fenn, the I. A. M. organizer, and Kifer were present. It was agreed
to pay the men who were laid off 2 weeks' back pay, and that in the
event the respondent found it necessary to call others back to work,
they would be recalled in, accordance with their seniority. This was
done according to Allen's testimony because -"they charged we laid
these men off-on account of union activities. To settle the dispute
we came to an agreement and paid all the men in the body shop up to
that date for 2 weeks that they hadn't worked in our shop." This
statement indicates very clearly that the settlement was for the lay-
off, and not for the failure to call Kifer back when the shop was
reopened. A close consideration of all the testimony concerning the
conference reveals that nothing was said on that occasion about any
discrimination against Kifer, or about giving Kifer the- place of
Woodward.
On cross-examination, Kifer was asked • whether he understood
that the controversy was settled by the payment of 2 weeks' back pay.
He said that he did, and that so far as he personally was concerned
he was satisfied.
The answer of the respondent to the complaint, however, does not
plead this alleged settlement in rebuttal of the allegations of the
refusal to reinstate Kifer. It seems obvious; therefore, that the re-
spondent did not at the time regard the payment of 2 weeks' back pay
as an adjustment of Kifer's grievance. We cannot, therefore, take
it for granted that when Kifer stated he was satisfied with the pay-
ment of 2 weeks' back pay, he meant that he felt he had agreed to
settlement of a claim for reinstatement not referred to.
The respondent has given no convincing explanation of its failure
to offer Kifer reemployment when it reopened its body shop. While
Kifer might have been loath to take 50 cents an hour instead of 551/2
cents, he should have been given the opportunity to accept an offer
of such employment. - It is reasonable to" assume that an employer
606 NATIONAL LABOR RLLATIONS BOARD
would prefer to employ the most experienced and capable employee
rather than one less qualified. Kifer was a working foreman, which
is an indication that his ability in directing and doing the work was
probably the highest among all the workers. The only reason that
can be deduced from the record for the failure to recall Kifer was
his membership and activity in the I. A. M. We find that the failure
to call Lloyd Kifer back to work was due to his union affiliation and
activities.
Kifer has earned substantially as much money since his discharge
as he would have earned if he had continued working for the respond-
ent. He stated at the hearing that he would go back to work for the
respondent, as he liked "that kind of work."
R. L. Harvey went to work for the respondent for the first time in
1932 or 1933. He worked on several other occasions, the last time
being in December 1936, when lie was called from out of the State.
He was employed as a mechanic and worked first on the shift from 7
p. in. to 4 a. in. Later he was changed to the shift from 10 a. in. to
7 p. in. On March 1, he was again changed to the shift from 8 a. m.
to 5 p. m., which appears to have been the most desirable shift.
Harvey joined the I. A. M. on April 26, 1937, and was very active
in soliciting members,. making no secret of his membership. He was
also interested in the organizing activities of the B. R. T., as appar-
ently the two organizations worked together in an effort to organize
all the employees. Bunce, the superintendent, told him, when the shop
foreman left the employ of the respondent, that, "if I would get right
and give up my card, he would give me" the job as shop foreman. This
was not denied by Bunce.
Harvey testified that thereafter his treatment was different. The
respondent tried to get him to work an excessive amount of overtime,
although there were other men who were capable of handling the
tasks but who were not asked to do extra work. His work was obvi-
ously satisfactory, as he had been called back to work for the respond-
ent in December and was asked to do extra work. Spurgin admitted
on the stand that he was a good mechanic.
On June 4, 1937, Harvey was notified that his work had been
changed from 8 a. in. to 5 p. in., to 10 a. in. to 7 p. in. He asked Bunce
the reason. Bunce told him "that was the orders and he could work
or else." O'Banion, a man with less seniority, was put on the 8 a. in.
to 5 p. in. shift. According to the usual practice, a new employee
would be put on night work, and as his seniority grew, he would
finally reach the 8 a. m. to 5 p. in. shift. Spurgin, secretary-treasurer
of the respondent, testified that the change was made because Harvey
was an old man there, that he knew when the busses left, and that
there was a gap from 5 p.m. to 7 p. in. when no foreman was, there.
When Harvey was told about this change, he became very angry,
DECISIONS AND ORDERS 607
talking very loudly, and cursing Bunce. Finally, Harvey said he
would come in at 10 o'clock.
According to Spurgin, Harvey so shocked him that he ordered
Harvey's discharge. We find that Harvey was discharged because
of his union activities. Harvey has not been employed since his
discharge on that date, June 5, 1937.
William Joe Ray, a mechanic, went to work for the respondent
April 2, 1937, and was discharged June 11, 1937. The respondent's
answer alleges that Ray was let go because he was discharged by his
previous employer for stealing.
Spurgin testified that Ray was a good mechanic, and that he never
stole anything from the respondent, but that he was discharged on
account of trouble which he had had with the Southern Kansas Stage
Lines when in its employ. Spurgin explained that the respondent had
several thousand dollars' worth of drills, bits, and parts and "it isn't
a good thing to have a thief around." Spurgin denied that he had
discharged Ray because of his union affiliation, but stated "that they
had too much at stake to have him working in the shop."
Ray, while working for the Southern Kansas Stage Lines at
Muskogee, Oklahoma, had sold junk which had accumulated, without
any authorization from the management. As a result of this sale,
he had a controversy with the company because he had not given it
the proceeds.
When he first applied to the respondent for work, about March 23,
1937, he talked with Hicks, the traffic manager, whom he had known
about 5 years-both of them having worked for the Southern Kansas
Stage Lines of the Santa Fe Trailways. Hicks had sent word to him
to come over to the shop as there might be employment for him.
In his conversation with Hicks, he related the facts about the trouble
with his former employer in Muskogee. Hicks then sent him to see
Spurgin. According to Ray, Hicks stated that he would talk to
Spurgin about this difficulty. Hicks admitted that he had talked
to Spurgin and did not deny that he had discussed this affair with
him. Spurgin testified that Hicks had told him that Ray was coming
down to see, him but (lid not mention any trouble.
Spurgin stated that at the time he had hired Ray, he had talked
to him about the kind of work he could do but that nothing was
said about any controversy which he had had with the Southern
Kansas Stage Lines. He claimed that he first heard about it from
Gammon, superintendent of the Southern Kansas Stage Lines, after
Rev had been working for the respondent about a month. Spurgin
asked Gammon about it several times, but all he would say was, "He
had some trouble over there. Why don't you find out over there
about it?" So Spurgin "hired a man to go over and check the
records."
608 YA-iIO'NAL LABOR RELAT IONS BOARD
The detective went to Muskogee and talked to the foreman, 'Sherrill,
who told him that Ray had confessed selling some parts. The in-
vestigator testified at the hearing, and his report was submitted in
evidence. From Gammon the investigator learned that Ray had-
been involved in selling some junk, that he had received half the
proceeds, that the Company made him give the money back to it, and
that later on he took $50 or $60 worth of new material.
Ray denied being told at the time lie was discharged by his pre-
vious employer that he had been charged with larceny or with taking
drills and bits. Ray stated that, on the contrary, Gammon, of the
Southern Kansas Stage Lines, had asked him about this junk and
that he had told Gammon he had sold it and had paid Gammon for
it. He further stated that he had made no secret of selling it. Ray
had worked for the Southern Kansas for 4 years and was Foreman of
the shop.
Harvey testified that after Ray went to work, Bunce had remarked
about Ray, "I guess I got a good one," and then quite pointedly with
regard to the difficulty, that "he, had a little trouble down there, in
Muskogee with the Southern Kansas but we didn't pay any attention
to that." Harvey also stated that Bunce told him that Ray "had
sold a little junk down there" at Muskogee, and that "everybody
knew it the next morning."
When Ray was called by Hicks to see about going to work with
the respondent, it is natural to presume that Hicks, who had known
him for some years, would ask him, if he did not already know, why
he left the Southern Kansas Stage Lines, particularly since he had
been a foreman there. Hicks did not deny that he had discussed
Ray's'trouble with him. We conclude that Hicks did talk the matter
over with Ray and with Spurgin too, and that they decided it did not
amount to anything important.
One fact which confirms this belief is that in the report submitted
by the investigator, Sherrill, the foreman at Muskogee is quoted as
recommending that another employee of the respondent, previously,
employed by the Southern Kansas Stage Lines„be «.atched.as a "real
thief." The suggestion in this report is that the latter did the stealing
and not Ray. Yet Ray was discharged by the respondent, and the
other employee, who was a painter, was called back to work after
the body shop was reopened and is still in the employ of the
respondent.
Ray joined the I. A. M. about April 26, 1937. Upon being ques-
tioned as to whether he disclosed the fact of his affiliation, he stated
that he "didn't make any secret of it," and "didn't advertise it."
Harvey, who was well known as a union member and was very active
in behalf of the Union, associated a great deal with Ray,-the two
rooming, eating, and working together. Ray was not active himself
DECISIONS AND ORDERS 609
in behalf of the Union , but his close association with Harvey marked
him as a union man, and one likely to be opposed to the respondent's
plans to foist its choice of a union on the employees.
We find that' the respondent has discriminated against Ray because
of his union affiliation. -
Vayne Treaster went to work as a bus driver for the respondent
on April 3, 1934, and worked continuously until March 9, 1937, the
date of his discharge . Treaster has been reemployed by the respond-
ent and asked to have the complaint dismissed as to himself. The
Trial Examiner recommended that the allegations of the complaint
as to Treaster be dismissed without prejudice . We, concur in this
action.
Jack Roglitz was employed as a bus driver by the respondent some
time prior to February 1937. Previous to this employment, he had
worked for the Santa Fe Trailways , but had been "pulled out" of
service on account of his accident record. On February 9, 1937, while
employed by the respondent , he had an accident in which he injured
a little girl.
He signed a B. R. T . authorization May 28, 1937 , and was active
with Charles Akers, one of the bus drivers, who was also laid off, in-
obtaining signatures to such authorizations . He was discharged for
the first time on June 5, 1937.
The respondent 's answer alleged that his employment was termi-
nated because the insurance company had investigated the accident
on February 9, 1937 , and had requested his discharge . Another rea-
son 'given `for the discharge was the fact that he had been making
a practice of coming late to start his 4: 00 a. in. run.
As a result of a conference between the respondent , counsel for
the Board, Roglitz, and Charles Akers , Roglitz was reinstated on
July 3, 1937.
The respondent 's answer further alleged that on July 18, 1937, the
respondent learned that Roglitz had failed to stop at Chelsea on his
run and had failed to pick up a passenger . He Was discharged for
the second time on'July 20, 1937.
It was stipulated at the hearing by the Counsel for the Board and
the respondent that Roglitz was a member of the B . R. T., that this
fact was known to the respondent, and that contrary to company
rules he had passed through Chelsea without stopping , thus failing
to pick up a passenger . The failure to stop at Chelsea was the first
serious thing called to Allen's attention "since he had been reinstated.
There was testimony from some of the drivers that it was not on the
morning schedule to stop at Chelsea. Several drivers testified that
they had been instructed that it was not necessary to stop at Chelsea
on that run. It was admitted , however, that, if such instructions
were given, they were given by other drivers and not by anyone in
610 NATIONAL LABOR RELATIONS BOARD
a supervisory capacity. Allen denied any such instructions were
ever authorized by the respondent.
We find that the discharge of Jack Roglitz was not due to his union
activity.
Charles Akers, a bus driver, was employed by respondent for about
31/2 years. He was laid off May 29, 1937, until July 4, 1937. He
first got in touch with the B. R. T. organizers early in April 1937,
and signed a B. R. T. authorization April 30, 1937. Robinson, the
B. R. T. organizer, gave him 40 or 50 blank B. R. T. authorizations
to be signed by the men, which he was active in taking around among
the drivers for signature. These he carried with him in a little kit
which he had in the bus on May 24, 1937, when he came off his run.
Going into the office to settle his receipts, he left his kit behind.
When he came out he found that Allen had taken his bus. He walked
down to the garage and about 30 or 40 minutes later Allen returned
to the garage with Bunce..
Allen explained the taking of the bus by stating, "I was complain-
ing to Mr. Spurgin about the conditions of busses, in regard to the
maintenance, some of the rattles in coaches, and so on, and Charlie
Akers' bus was standing there ... I drove the bus to the garage
and discovered certain rattles and I called Mr. Bunce to go with me
so he could in turn see what rattles there were and see that they were
fixed."
Allen could not recall definitely when he had ever taken a bus out
before, although he recalled vaguely that, with Akers, he had driven
to a place called Sand Springs a bus which had just come back from
the factory. He was not able- to give any particulars as to when this
occurred. He also had some recollection of taking the bus of a driver
named King to try it out. No date or approximate time was given
for this trip. He could not recall any other instances.
At the time Allen took the bus there were eight authorizations in
his kit, including those of McNutt, , Waddle, Krebbs, and Owen.
When Akers retrieved the kit he found the authorizations were
changed around and not in the same shape in which he had left them.
Allen denied disturbing Akers' kit.
On .the following day, Akers was called into the office and, told to
stop the practice of using for his personal needs the cash fares which
he picked up on his run, but to turn them all in at the time he made
his report. The bus drivers had been permitted to use the cash fares
collected on the run; which' they reported at the time they were col-
lected, but were assessed a 25-cent penalty for each time they did it.
These amounts were then deducted from their pay at the end of the
week. ' There was no question of dishonesty involved in this, accord-
ing to the respondent's' own testimony.
-DE,CISIONS AND ORDERS 611
On May 29, 1937, Akers was "pulled off" by Spurgin. He was
told that this was done because there was a report that on his previ-
ous run he had driven over all the railroad crossings between Tulsa
and Springfield without stopping. This charge was denied by Akers.
On the following Tuesday he was told that the respondent "would
never work" him again. As a result of the conference already men-
tioned in connection with Roglitz's case, Akers was reinstated on July
4, 1937. He did not receive any pay for the period when he was laid
off and he denied that there was any discussion of back pay at the
conference. Although Allen did not testify directly at any time that
Akers was discharged for using cash fares , the implication from his
testimony is that this was the ground for his discharge rather than
any stated at the time of his discharge.
Akers has been working continuously since his reinstatement on
July 4, 1937, although he stated that he was working on a less desir-
able`r61.
Akers was one of the most active men soliciting memberships in
the B . R. T. His activity was clearly a threat to the respondent's
efforts favoring the Amalgamated as the union for its employees.
The respondent had allowed its employees to use their cash fares,
upon the payment of a small penalty. The respondent suddenly de-
cided to make an example of Akers, and discharged him. In view
of the long indulgence by the respondent of the custom of using cash
fares, the extreme. character of its remedy and the swift change of
policy we think that the respondent was striking at something more
obnoxious to it than this-practice-namely, the B. R. T. - We find
that Akers was discharged on May 29, 1937, for union activity.
Fred Gn ifth went to work as a bus driver for the respondent
around the last of May 1937. He had driven a bus for the Blue-bird
System for 15 mouths before. . On the respondent 's lines he worked
on the "extra board;" %vliich consisted of the men who take runs
when the regular drivers are absent. He was discharged on July 22.
Griffith signed a B. R. T. authorization about June 1, and became
a member about June 7 or 8, paying dues, for which he received a
receipt. He kept this receipt in.his pocket with his .papers. Griffith
testified that about July 15 he either lost the receipt around the
garage or turned-it in-with his papers at the office. He believed that
he had turned the receipt into the office, because it would have been
returned to him if he had dropped it in the garage.
Griffith was active in discussing the B. R. T. with the other drivers,
even ,with Hayes, Bunce's-son-in-law, who was very active on behalf
of the Amalgamated. He told Ruyle, the Amalgamated organizer,
that he believed 'in the B. R.- T: and had signed a B. R T. authoriza-
tion. In spite of this he was persuaded to sign for the Amalgamated,
1340d8-39-vol ix--40
612 NATIONAL LA13OR RELATIONS BOARD
upon being told that he "had better sign it" if he "wanted to keep
working." At the time of voting for officers of the Amalgamated,
Bunco told him whom to vote for. This was denied by Bunce, al-
though he admitted discussing the voting with Griffith.
Griffith related that at Oklahoma City on July 22 he took over
a bus which had been newly overhauled at a cost of about $1,000.
Before he left Oklahoma City he had filled up the radiator with
water; but 12 or 14 miles out at Edmond he noticed it was getting
hot. There he again put water in the radiator, but it heated up
before he had driven very much further. The motor never pounded
nor was there any steam at any time, and he expressed doubt that
the head was cracked by these circumstances.
He related that as he drove into the bus station at Tulsa, "they
asked me how the bus was running and I told them it was running
hot. Before I had a chance to say any more, they said `You have
ruined the bus."' Bunce told him, he recounted, that he might as
well "keep on going." Bunce testified that when Griffith brought his
car in With the hot motor he told him that "if that motor was burned
up to kiss himself goodbye and keep going." Bunce claimed that
he did not discharge Griffith, but that Griffith walked out and quit.
Bunce admitted, however, that he would have recommended "that he
be discharged if he burned that motor up." Bunce explained that
he put Coleman, one of the extra drivers, on Griffith's run because
Griffith did not come back, although Griffith testified that he did not
leave immediately but sat around for a while and that Coleman
was called to take his run before he left. Griffith stated that he then,.
went to the office and turned in his cap and badge, without anyone
I elling him that 'he was discharged, aside from the remark made to
him "to keep going." Bunce also stated that he could tell, by the way
it was cracked, that the motor had been broken by having hot and
cold water poured on it. Griffith testified that Forest Holbrook,
Wilkerson, and Cowan broke -heads..but were-still working, although
Cowan had to' pay for the'one he broke: We are, not convinced that
the respondent in' discharging Griffith was- motivated, -,by his union,
activities. We find that the respondent in discharging Griffith did
not discriminate against him because of his union membership and
activity and the allegations of the complaint with respect to him will
be dismissed.
T. C. McNutt was employed as a bus driver for the respondent for
about 2 years until he was discharged on August 24, 1937.
He joined the B. R. T. on July 1, 1937, having signed an authori-
zation May` 20, 1937. He testified he was "instrumental in getting
quite a number of the boys to sign up, sign authorizations with the
Brotherhood, and keeping them informed as to what progress we have
been making in organizing the Brotherhood." He signed an appli-
i)EGiSio^s AND ORDERS 613
cation for the Amalgamated because of "the pressure put on" him.
He said that it was known that lie was a member of the B. R. T.
His authorization was in Charles Akers' kit, when this appears to
have been opened by Allen on May 24, 1937, as described above.
Two or 3 days later, he was notified to see Allen. As Allen was
away, he went to see Spurgin and Hicks. At this meeting his re-
fusal on one occasion to carry a bag for a lady was brought up. He
was also asked about an occasion when the driver's window had been
closed by a passenger on a very hot day and he had opened it. These
matters had occurred 4 or 5 months before. On July 6, 1937, he
was laid off for 30 days.
After 30 days' suspension he went back to -work on August 6, 1937.
On August 19, 1937, he slammed the door of the bus on a man's arm.
He was accused of doing this deliberately. He made no report of
the incident nor did he obtain the names of any witnesses. On Au-
gust 20-lie was taken off his run, and he was discharged on August 24.
On September 7 or 8, 1937, he asked Bunce for permission to post
a notice regarding the B. R. T. Spurgin refused to allow it, al-
though the Amalgamated had posted a notice on the bulletin board.
Allen denied that he had discharged McNutt for his union activi-
ties, but claimed that he laid him off on account of his slamming the
door, failing to get any evidence in regard to the incident, and
because of his discourtesy to passengers. Allen stated that McNutt
might deliberately smash a person's arm if he got "mad." Two em-
ployees who witnessed the incident said the slamming of the door
was deliberate. Wilkerson, one of these employees, testified that
McNutt had his back turned when the door was closed and that he
did not get out afterwards to investigate the occurrence. Wilkerson
related that he spoke to the man about it, who said his arm was
probably bruised but refused to roll up his sleeve to see what condi-
tion it was in.
Allen testified that McNutt was an unsatisfactory employee all the
time, that he had had several accidents which were side-swipes, that
"we had reason to fire him practically since he went to work for us,"
that he knew McNutt had been disciplined ever since lie came with
them, and that very few of his checks had not been reduced by fines
imposed for infractions of rules. The stubs of several of his checks
were introd;'uced by counsel for the Board but these did not show
that any fines had been imposed. Allen explained one of the nota-
tions on the stubs as indicating four fees for fines. He also stated
that he thought that McNutt had been suspended about a year or
so before, but was vague in telling about this. Allen further testi-
fied that he had talked to McNutt about 36 times in 2 years about
matters of discipline or his driving. We are not convinced that the
respondent in discharging McNutt was motivated by his union ac-
614 NATIONAL LABOR RELATIONS BOARD
tivities. We find that the respondent in discharging Griffith did
not discriminate against him because of his union membership and
activity and the allegation of the complaint with respect to him will
be dismissed.
Jack 1frebbs, before his discharge, worked as a bus driver for the
respondent on two occasions amounting to about 2 years altogether.
He signed a B. R. T. authorization on May 1, 1937 , at Akers' request.
Akers had Krebbs' authorization in his kit in his bus on May 24, 1937.
Krebbs was active with Akers on various occasions securing authoriza-
tions from other drivers. He assisted in organizing work for the
B. R. T. on the Springfield and St. Louis division.
The respondent's answer alleged that Krebbs was discharged on
May 27, 1937, because "he undertook to drive his'bus" "while under
the influence of liquor, and that he was discharged for trying to drive
his bus in that condition." -
Krebbs did not appear at the hearing because he was in Homer,
Louisiana , and it was impossible for him to attend.
Allen testified without contradiction that Krebbs had previously
been discharged for drinking, and was put back to work on condition
that lie never ' drink again while employed there. Allen denied
that he had discharged him on account of his union membership.
We find that Krebbs' discharge was not due to his union activi-
ties. - -
R. D. Owen went to work as a' driver for the respondent about
March 1, 1937. On May 20, 1937, lie signed a B. -R. T. authorization,
which Akers had with him in,his kit on May 24, 1937. On June 21,
1937, as he was sitting in the bus in the garage he signed an' Amal-
gamated application at the solicitation of Ruyle, the Amalgamated
organizer , in the presence of Bunce. He was active in discussing
the B. R. T. around the garage and' station, and made no effort to
hide the fact that he was for the B. R. T.
He had had three accidents while he worked for the respondent.
On April 21 lie had an accident in which a woman lost her life. No
claim was filed against the insurance company on account of it-,°
however. In the second accident about four or five persons were cut
by flying glass. His third accident occurred on September 1, 1937,
when no one was seriously' hurt but one person was scratched. The'
bus, however, was damaged badly. He was 'discharged September 7;
1937. At this time Bunce gave him "the impression" that it was not
his "fault," although Hicks told him 'later that lie was being dis-
charged on account of too many accidents. Owen stated that these
accidents were all "non-chargeable accidents." -
Bunce stated on the stand that lie had interceded -for Owen when
he was discharged but that-" Hamm, the' insurance engineer, had
DECISIONS AND ORDERS 615
told him "to pull" Owen off, that he had had too many wrecks and
if he was kept on somebody would get badly hurt.
We find that Owen's discharge was not due to union activities.
Lee Fleming was first employed by the respondent on June 3, 1937.
He had been previously employed by the Southwest Missouri Rail-
road Company for about 8 months. On June 15, 1937, he signed a
B. R. T. authorization. In addition, he talked to several men about
signing up with the B. R. T. and told them the advantages of the
B. R. T. insurance. He also discussed the B. R. T. with Hayes, who
was a son-in-law of Bunce, and who was very active with the Amal-
gamated. He stated that it was well known that he was in favor
of the B. R. T. Fleming also testified that Ruyle, the Amalgamated
organizer, got in his bus and told him that the Company gave him
the "authority" to organize the drivers and 'that Bunce came along
and confirmed it. This was denied by Bunce at the hearing, who
said that he had told Fleming "to use his own judgment."
In the course of 2 months Fleming was involved in four accidents.
On July 9 he was in an accident in which the bus was damaged and
which cost the Company $3,000 to settle. A second accident oc-
curred on July 31, 4 miles east of Vinita. He claimed that a man
crowded him off the road. This cost the Company $100 to settle. The
report, he claimed, did not show that he was at fault. His third
accident occurred on August 9 between Cleveland and Pawhuska.
He was going down a curve when his brakes failed him and he
turned his bus into a fence off the road. Several passengers were
bruised or scratched. The bus had been in bad shape previously. On
August 31, 1937, he ran over a calf. He was discharged on September.
3, 1937. Bunce told him he was going to put him on another run,
but then he later called him and told him he was discharged. Bunce
claimed that Fleming was discharged because Hamm, the insurance
engineer, had requested it.
We find that Fleming's discharge was not due to his union activi-
ties.
John D. Waddle was first employed by the respondent as a bus
driver April 1, 1937. He claimed that he was discharged on August
24, 1937, for giving testimony under the Act. He signed a B. R. T.
authorization about the last of May 1937. He had discussed the
Union with the other drivers.
Waddle had worked for the Missouri-Arkansas Coach Lines, which
operates out of Springfield, Missouri. At the Board's hearing in
Springfield in Matter of lllissouri-Arkansas Coach Lines, Inc. and
the B. R. T.,2 held between July 29 and August 3, 1937, he testified
against-the respondent involved in that case. There was testimony
2 7 N. L R . B. 186.
616 NATIONAL LABOR RELATIONS BOARD
that Floyd Jones, president of the Missouri-Arkansas, and- the presi-
dent of the respondent were very good friends, that the two Com-
panies had business connections and a working arrangement whereby
the respondent used the Missouri-Arkansas Coach Lines station and
garage in Springfield. -
At the time of Waddle's discharge, Hicks talked to him about a
woman passenger whom he had carried without a ticket from Vinita
to Springfield. It appears that there is it rest room at Vinita where
passengers get off and where some transfer to buses from Kansas
City. The passenger in question had a ticket for Kansas City. Ac-
cording to Waddle's testimony, he had checked the passengers off and
on, including this particular passenger. He stated that Coleman, one
of the drivers for the respondent, who was riding as an extra driver,
put her back on the bus. Coleman was not called by the respondent
to deny this.
The bus drivers are supposed to check the passengers at every sta-
tion. There are eight or nine stations between Vinita and Spring-
field. Three or four of them may be passed without stopping but
Waddle did not recall how many times he checked on that trip nor
did he know whether he or Coleman checked the passengers. He
admitted that he did not check them at the stations where they did
not stop. Waddle stated that he never heard of anyone getting dis-
charged for carrying a passenger beyond his station. He bought a
ticket for the woman at Springfield and made arrangements for her
to be taken on to Kansas City. The facts of this incident, which
happened before the hearing in Springfield, were obtained by the
respondent from the "checker's" 3 report.
The respondent allegedly discharged Waddle because he carried
a passenger beyond a station. What normally might be the basis for
a reprimand, was taken as grounds for discharge. Waddle had
worked for the Missouri-Arkansas Coach Lines, Inc., for 3 years and
apparently was a good driver. It is not probable that the respond-
ent would have discharged him over a trivial mistake. The close
business and personal connection between the respondent and Mis-
souri-Arkansas Coach Lines discloses the reason actuating the re-
spondent. Waddle had given damaging testimony against the other
Company. This appears to have been the real reason for the dis-
charge and not his manner of performing his duty.
We find that Waddle was discharged because he gave testimony in
a hearing of the Board.
Waddle was earning about $130 a month when he was working for
the respondent. He has not been employed since his discharge.
'Checkers ' ride the buses to check on the drivers as to the observance of the rules
and regulations.
DECISIONS AND ORDERS 617
C. Refusal to bargain collectively with B. R. T.
1. The appropriate unit
The complaint alleges that the respondent refused to meet with the
duly authorized representative of the majority of its employees en-
gaged in operating motor buses and to bargain collectively with such
representative . The answer admits that the respondent has not bar-
gained with the B. R. T. as representative of the majority of the em-
ployees engaged in operating motorbusses , but sets forth that it has
failed to bargain with the B. R. T. solely because of the fact that a
controversy exists between the Amalgamated and the B. R., T.
The petition of the B. R. T. alleges as an appropriate unit the
motorcoach operator employees or drivers employed by the respondent.
The original petition of the Amalgamated alleges that the operating
employees including not only the drivers but also all employees en-
gaged in preparing the buses for operation , shop men, and repair
men, should be in the unit . However, at the time of the hearing on
September 8, 1937, counsel for the Board , the respondent and the
Amalgamated, and the duly authorized representatives of the I. A. M.
and the B. R. T., entered into a stipulation which was made part of the
record without objection , as follows :
It is hereby stipulated by and between counsel or duly author-
ized representatives for the respective parties herein that the
Board may make the following findings of fact.
1. The employees of respondent engaged as mechanics or body
workers in maintaining buses used in the operation of respondent's
business , exclusive of those engaged in a supervisory capacity or
porters at its place of business in Tulsa and Stillwater , Oklahoma
constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.4
Later, on September 27, 1937, an amended petition for investigation
and certification of representatives pursuant to Section 9 (c) of the
Act, was filed on behalf of the Amalgamated which reduced the scope
of its original petition to the respondent 's employees employed as
motorcoach operators or drivers.
We find that all the motorcoach operator employees or drivers, ex-
cluding office workers, employees engaged in preparing the busses for
operation , shop men; and repair men, and those . engaged in supervisory
duties, constitute a unit appropriate for the purposes of collective bar-
gaining and that such a unit insures to the employees the full benefit
of their right to collective bargaining and otherwise effectuates the
policies of the Act. -.
* 3 N. L. R B 879
618 NATIONAL LABOR RELATIONS BOARD
2. Representation by the B. R. T. of the majority in the appropriate
unit
The respondent employs about 49 bus operators, exclusive of
clerical, supervisory staffs, and employees engaged in preparing
the busses for operation, shop men, and repair men.
At the hearing the B. R. T. introduced 25 authorization forms
signed by drivers employed by the respondent, showing that on June
7, 1937, the day that the B. R. T. wired the respondent asking for
a conference, the B. R. T. represented _ a majority of the drivers
employed by the respondent, and that on June 15, 1937, when the
B. R. T. was advised by Allen that it had not gone through the
proper procedure, it had two additional authorizations.
On behalf of the Amalgamated, 48 applications for membership
were introduced at the hearing. One of these is dated June 18, 12
are dated June 19, two June 20, 18 June 21, and the remaining, later.
The respondent has not challenged the claim that the B. R. T.
represented a majority of the bus drivers on June 7, but in its answer
pleads ignorance as to which union it should bargain with.
No evidence was introduced at the hearing that the Amalgamated
had obtained any members among the respondent's bus drivers prior
to June 18, 1937. The Amalgamated,,as is pointed out above, sub-
mitted at the hearing applications signed by a majority of the bus
drivers at a later time. In view of the acts of the respondent,
described in Section III (A), we find that the Amalgamated was not
freely designated as a bargaining agent by the majority of the
respondent's employees.
We find that on June 7, 1937, and thereafter, the B. R. T. was
the duly designated representative of the majority of the employees
in the appropriate unit. Pursuant to Section 9 (a) of the Act, it
was, therefore, the exclusive representative of all the employees -in
such unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other conditions of
employment.
3. The refusal to bargain
On June 7, 1937, Nutter, the representative of the B. R. T., sent a
telegram to Howard W. Allen, president of the respondent, advising
him that the bus operators had selected the B. R. T. as their repre-
sentative for collective bargaining, and asking him to advise Nutter
as to the time when it would be agreeable for him to negotiate con-
cerning a contract. In reply, on June 15, 1937, Allen sent a telegram
to Nutter, in which he stated, "You have not shown through the
proper procedure that you represent a majority of our employees."
DECISIONS AND ORDERS 619
On June 15, 1937, Robinson, organizer for the B. R. T., made
several efforts to meet with Allen but was told that he was out of
town. On June 27, Nutter met with Davis, Regional Attorney of the
Board, and Davis on that date transmitted Nutter's request to Allen
for a meeting between the respondent and the B. R. T. The B. R. T.,
however, was never successful in entering into any negotiations with
the respondent.
The answer of the respondent pleads that it has failed to bargain
with the B. R. T. solely because of the fact that a controversy exists
between the Amalgamated and the B. R. T. That this was not the
real reason for the refusal to bargain is shown by the fact that on
June 7, 1937, when the respondent was asked by the B. R. T. to meet
with it, and when the B. R. T. represented a majority of the em-
ployees, the Amalgamated had not obtained a single application for
membership from the bus drivers. On June 15, 1937, the respondent
refused, by telegraph, as described above, to meet with the B. R. T.
On this later date the Amalgamated was still without any members
among the respondent's employees, while the B. R. T. still represented
a majority of them. It appears something more than a coincidence
that on the very day that the telegram was sent to the B. R. T., Ruyle,
organizer for the Amalgamated, appeared on the scene and was given
the complete cooperation and encouragement of the respondent in his
effort to organize the drivers.
We find that the respondent, on June 15, 1937, and at all times
thereafter, refused to bargain collectively with the B. R. T. as the
representative of its employees engaged in operating motorbusses
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE PETITIONS
In view of the Board's findings in Section III (C) above, as to the
appropriate bargaining unit and the designation of the B. R. T.
by a majority of the respondent's employees in the appropriate unit
as their representative for the purpose of collective bargaining, it is
not necessary to consider the petitions of the B. R. T. and Amalga-
mated for certification of representatives. Consequently the peti-
tions for certification will be dismissed.
620 NATIONAL LABOR RELATIO2\S BOARD
THE REMEDY
We have found that Lloyd W. Kifer, R. L. Harvey, William Joe
Ray, and Charles Akers were discharged by the respondent because of
their-union-affiliation and activities. We have also found that J. D.
Waddle_ was discharged by the respondent because he gave testimony
under the Act. Since these discharges constituted unfair labor prac-
tices, we shall order that the men be reinstated with back pay.
We shall also order the respondent to bargain collectively with
the B. R. T. as representative of its bus drivers. Prior to the hear-
ing many of the members of the B. R. T. joined the Amalgamated
and by implication renounced their B. R. T. affiliation. We have
found that such action was the result of the respondent's unfair labor
practices. To refrain from ordering the respondent to bargain col-
lectively with B. R. T., would be to hold that the obligation of one
provision of the Act may be evaded by the successful violation of
another; that the freely expressed wishes of the majority of the em-
ployees may be flaunted if the employer brings to bear sufficient
interference , restraint , and coercion to undermine the representative's
majority support. -
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceedings , the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , Brotherhood of Rail-
road Trainmen, and Local Division No. 1147 of the Amalgamated
-Association of Street , Electric Railway and Motor Coach Employees
of America are labor organizations , within the meaning of Section 2
(5) of the Act.
2. The respondent by discriminating in regard to the hire and
tenure of employment of Charles Akers, thereby discouraging mem-
bership in the B . R. T., has engaged in and is engaging in unfair
labor practices , within the meaning of Section 8 (3) of the Act.
3. The respondent by discriminating in regard to the hire and
tenure of employment of Lloyd W. Kifer, R. L. Harvey , and William
Joe Ray, thereby discouraging membership in the I. A. M., has en-
gaged in and is engaging in unfair labor practices , within the mean-
ing of Section 8 (3) of the Act.
4. The respondent by discharging J.' D. Waddle because he gave
testimony under the Act, has engaged in and is engaging in unfair
labor practices , within the meaning of Section 8 (4) of the Act. -
5. The employees of the respondent engaged in operating motor-
busses constitute a unit appropriate for the purposes of collective
bargaining , within the meaning of Section 9 ( b) of the Act.
DECISIONS AND ORDERS 621
6. The B. R. T. was on June 7, 1937, and at all times thereafter
has been, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
7. By refusing to bargain collectively with the B. R. T. as the
exclusive representative of its employees in an appropriate unit,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
8. The respondent by interfering with, restraining, and coercing its
employees in the exercise of the right to self-organization, to form,
join, and assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
'tivities for the purpose of collective bargaining or other mutual aid
or protection has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
10. The respondent has not engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act with respect to the
discharge of Jack Roglitz, Fred Griffith, T. C. McNutt, Jack Krebbs;
R. D. Owen, and Lee Fleming. .
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National. Labor Relations Board hereby orders that the
respondent, the Missouri, Kansas and Oklahoma Coach Lines, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the B. R. T., the I. A. M., or any
other -labor organization of its employees, or encouraging member-
ship in the Amalgamated or any other labor organization of its
employees, by discharging or refusing to reinstate any- of its em-
ployees or in any other manner discriminating in regard to their hire
and tenure of employment or any term or condition of their
employment;
(b) Discharging or -otherwise discriminating against any of its
employees for giving testimony under the National Labor Relations
Act ;
(c) Refusing to bargain collectively with B. R. T. as the exclusive
representative of its employees engaged in operating motor buses;
(d) Recognizing the Amalgamated as the exclusive representative
of its employees;
622 NATIONAL LABOR RELATIONS BOARD
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, 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) Offer to Lloyd W. Kifer, R. L. Harvey, William Joe Ray, J. D.
Waddle, and Charles Akers immediate and full reinstatement to
their former positions without prejudice to their seniority and other
rights or privileges;
(b) Make whole J. D. Waddle, and Charles Akers for any loss
of pay they have suffered by reason of its discrimination against
them by payment to each of them of a sum of money equal to
that which he would normally have earned as wages during the
period from the date of such discrimination to the date of such
offer of reinstatement, less his net earnings 5 during such period; '
(c) Make whole Lloyd W. Kifer, R. L. Harvey, and William Joe
Ray for any loss of pay they have suffered by reason of its dis-
crimination against them by payment to each of them of a sum of
money equal to that which he would normally have earned as wages
from the date of his respective discharge to October 9, 1937, and
from the date of this Order to the date of such offer of reinstate-
ment less his net earnings during 6 such period;
(d) Upon request, bargain collectively with the B. R. T., as the
exclusive representative of all its employees engaged in operating
motor buses for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(e) Post in conspicuous places where they will be observed by
the respondent's employees and maintain for a period of thirty (30)
consecutive days from the date of posting, notices stating (1) that
the respondent will cease and desist in the manner aforesaid; (2) that
the respondent will bargain collectively with the B. R. T. as the
representative of the employees in the appropriate unit;
(f) Notify the Regional Director of 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.
6 By "net earnings" is meant earnings less expenses , such as for transportation, room
and board, incurred by an employee in connection with obtaining work ; working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crosset Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2;90, 8 N. L. R B 440.
6 Ibid.
DECISIONS AND ORDERS 623
And it is further ordered that the complaint in so far as it alleges
that the respondent has engaged in unfair labor practices with
respect to the discharges of Jack Roglitz, Fred Griffith, T . C. McNutt,
Jack Krebbs, R. D. Owen and Lee Fleming and the lay-off of Wayne
Treaster be, and it hereby is, dismissed.
[SAME TITLE]
SUPPLEMENTAL ORDER
November 16, 1.938
On November 2, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
proceeding.'
For reasons stated in said decision, and by virtue of Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, and pursuant to
Article III, Sections 8 and 9, of - National Labor Relations. Board
Rules and Regulations-Series 1, as amended,
IT IS FURTHER ORDERED that the petitions for investigation- and
certification of-representatives of employees of Missouri, Kansas &
Oklahoma Coach Lines, Tulsa, Oklahoma, filed by the Brotherhood
of Railroad Trainmen and by the Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America, Local
Division 1147, be, and they hereby are, dismissed.
9 N. L R. B., No. 55a.