Norfolk Southern Bus Corp.

National Labor Relations Board - Board Decisions

Mar 26, 1946

66 N.L.R.B. 1165 (N.L.R.B. 1946)

In the Matter of NORFOLK , SOUTHER N Bus CORPORATION and
BROTHERHOOD OF RAILROAD TRAINMEN
Case No . 5-C-1863.-Decided March 26, 1946
DECISION
AND
ORDER
On November 8, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On March 19, 1946,
the Board heard oral argument at Washington, D. C., in which the
respondent and the Union participated.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the respondent's exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recominenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act. the National Labor Relations
Board hereby orders that the respondent, Norfolk Southern Bus
Corporation. Norfolk, Virginia, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Railroad
Trainmen as the exclusive representative of all its bus drivers and
1 In the fifth paragraph of Section III, A , 1, of the Intermediate Report , entitled
Statements by Supervisory Employees,' the Trial I:1aminer inadvertently and incorrectly
used the name . "W. C Palmer" It is clear from the record , as the respondent pointed
out in its brief, that the person inadvertently referred to as W. C . Palmer is actually
W. C. Parker The Intermediate Report is hereby amended in this respect
66 N. L . R. B., No. 142.
1165
I166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conductors in the Virginia Division, excluding bus cleaners, me-
chanics, transportation clerks, road men or inspectors, dispatchers,
bus masters, and all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in,
the status of employees, or effectively recommend such action :
(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 Brotherhood of Railroad Train-
men, or any other labor organization of their own choosing, 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) Upon request, bargain collectively with Brotherhood of Rail-
road Trainmen as the exclusive representative of all of its employees
in the aforesaid appropriate unit, in respect to rates of pay, wages,
hours of employment, and other conditions of employment ;
(b) Post at its Bus Terminal in Norfolk, Virginia, and at its
other Terminals in the Virginia Division, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A." 2 Copies
of said notice, to be furnished by the Regional Director for the
Fifth Region, after being signed by the respondent's representative,
shall be posted by the respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(c) Notify the Regional Director for the Fifth Region in writing.
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Air. John H. Garver, for the Board.
Messrs. James G. Martin, S. Burrell Bragg, and Arthur TV. Winder, all of
Norfolk, Va., for the Respondent.
Messrs. James W. Brennan, of Long Island City, N. Y., and S. L. Whitehorne.
of Portsmouth , Va., for the Union.
2 Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
NORFOLK SOUTHERN BUS CORPORATION 1167
STATEMENT OF THE CASE
Upon a second amended charge duly filed by Brotherhood of Railroad Train-
men, herein called the Union, on June 11, 1945, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Fifth Region
(Baltimore, Maryland), issued its complaint dated August 20, 1945, against
Norfolk Southern Bus Corporation, 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, herein called the
Act. Copies of the complaint accompanied by notice of hearing were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that: (1) Respondent on or about January 21, 1945, discharged S. L.
Fulghum and thereafter failed and refused to reinstate said employee because
he joined and assisted the Union ; (2) by various specified activities' Respond-
ent interfered with, restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act; (3) the Respondent on or
about June 8, 1945, and thereafter refused to bargain collectively with the
Union as the exclusive bargaining representative of the respondent's employees
in a unit designated as appropriate for the purposes of collective bargaining
by the Board although a majority of the employees in such appropriate unit
by secret ballot conducted on March 8, 1945, had selected said Union as their
collective bargaining representative.
The Respondent thereafter filed its answer in which it admitted certain of
the allegations of the complaint, but denied that it had committed any unfair
labor practices. The answer in substance alleged that the unit was inappropri-
ate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act, that the election of March 8, 1945, was unfair in that the
Union had coerced the employees into voting for it and that, although the
Union had requested the Respondent to bargain collectively, it had refused to
give Respondent sufficient time to determine whether or not to do so.
Pursuant to notice, a hearing was held in Norfolk, Virginia, on September
1 7, 18, and 19, 1945, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the Respondent were represented
at the hearing by counsel and the Union by its representatives. Full oppor-
tunity to be heard and to examine and cross-examine witnesses was afforded all
parties. At the close of the hearing the undersigned granted a motion made
by Board's counsel to conform the pleadings to the proof as to dates and other
minor variances. The case was orally argued before the undersigned by the
attorney for Respondent and the Board
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Norfolk Southern Bus Corporation, a Virginia corporation, is a wholly owned
subsidiary of the Norfolk Southern Railway Company and is engaged in the
IIncluding causing , sponsoring and assisting activities and proceedings among its em-
ployees designed to establish a committee as bargaining agent for its employees to pre-
vent , negate and dissipate the independent effort of its employees to engage in concerted
activities.
1 168 DECISION'S OF NATIONAL LABOR RELATIONS BO ARD
transportation of passengers and freight for hire from certain parts of eastei it
Virginia to North Carolina and from North Carolina to certain points in
Eastern Virginia. Respondent is subject to the public utility laws of those
States and to the regulations of the Interstate Commerce Commission. Re
spondent admitted that it was engaged in commerce within the meaning of thi'
National Labor Relations Act
II. THE ORGANIZAIION INVOLVED
Brotherhood of Railroad Trainmen , unaffiliated , is a labor organization
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1 Statements by supervisory employees
The Union began its efforts to organize the bus drivers and conductors of
the Respondent in late September or early October 1944. A number of the
bus operators joined the Union at a meeting held in the Atlantic Hotel in
Norfolk at that time.
It is not disputed that the Respondent promptly knew about the above meet-
ing as well as the organizing drive. General Manager Fletcher testified that
he immediately warned all the supervisory force not to make detrimental
remarks or discourage the Union or even to discuss the Union. Fletcher test'-
tied that he reiterated this advice after he had received a written request in
November 1 from the Union asking a meeting for the purpose of negotiating
a working agreement for the operators in respondent's Virginia Division.'
Three or four days after the Atlantic Hotel meeting John Addenbrook,
Respondent's Bus Master and admittedly a supervisory employee, met Operator
Clarence I) Perry who had joined the Union as Perry reported for work and
stated that he had heard Perry had joined the Union and was an instigator
of it. Perry admitted his membership but denied the remainder.
About a week after the Atlantic Hotel meeting, Addenbrook spoke to Opel
ator Hanner, also a union member, at the bus terminal asking if Hanner had
,Joined the Union. Upon receiving an affirmative answer Addenbrook stated
that it looked like the men were trying to "knife (him) in the back" while
he had been on his vacation, that they had told him nothing about the meeting
and that he could not see why the men needed a union as they were making
better salaries than other bus operators around
About the Same time and place, Addenbrook also said to Operator W C
Palmer, another union member: "I go on a vacation, and I come back, these
is trouble, I hear you are an instigator of this Union and have let me down "
Another union operator to whom Addenbrook spoke was K. W. Smith when
he said: "They tell me you boys are trying to cut my throat when I am out
of town * * * You joined the Union, took a time when I was out of town
to do it " After telling Smith that it looked like a "damn dirty shame"
to wait until he was out of town, Addenbrook inquired if Smith had joined the
d Respondent ' s operations are divided into two departments , known as the Virginia and
Carolina Divisions
NORFOLK SOUTHERN BUS CORPORATION 1169
Union to which Smith said yes. Addenbrook concluded the interview by
remarking that it looked as though the men would have picked a different
union, for when the Brotherhood went on strike, "everything" goes on strike.
On two other occasions Addenbrook inquired of Operator Lindsay if he were
a member of the Union.%
About the middle of February 1945, Operator Melton, who had lost his driver's
license because of driving while intoxicated off duty but had been reemployed
by Respondent, happened to be in Fletcher's office where lie thanked Fletcher
for reemploying him. Fletcher stated that he tried to keep his old operators
especially when they had had good records. Then he showed Melton a copy
of a report by Naval Shore Patrol which stated that one of Respondent's other
drivers had been driving on duty while drunk. This operator had been dis-
charged by Respondent. Fletcher remarked that if this operator had come
"to the Company instead of going to the Union," his discharge "probably"
could have been straightened out4
Addenbrook's remarks and inquiries coupled with Fletcher's graphic descrip-
tion of the difference in Respondent's treatment of employees depending on
whether they sought union or company assistance in their troubles must nec-
essarily have assumed a coercive and discriminatory significance in the eyes
of the men to whom they had been made or at least in the eyes of the
employees. The query as to union membership garnered new meaning when
it became apparent as to what purpose that information was being' or could
be, used.
The undersigned therefore finds that by the statements above found the
Respondent interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed by Section 7 of the Act.
2. The Respondent's interference in the formation of the Grievance Committee
Sometime in April, May or August 1944,1 Operator M. W. Parker, while
seeking advice from Pritchard, Respondent's vice president, on how the
employees could deal with General Manager Fletcher about their employment,
suggested that the employees should form a grievance committee of their own
to meet with Fletcher. Pritchard immediately called Fletcher into his office
and told him to go ahead with anything the men wanted A few days later,
Pritchard, Fletcher, Parker, and six or seven operators discussed this suggestion
in Fletcher's office. Thereafter, until December the only development of the
idea was that Parker would occasionally remind Fletcher that Fletcher was
going to call an employees' meeting in order to implement the idea.
Nothing further concrete was done until after the Respondent received notice
about December 1, 1944, that the Union had filed its Petition for Certification
in the unit composed of operators of the Virginia Division.
On December 19, 1944, Respondent called "safety meetings" for all its oper-
ators. One meeting was held in the morning and the other in the evening so
that all operators could attend. Although M. W. Parker was not working
regularly for Respondent at this time, he was notified of the meeting by a
S All the above testimony concerning Addenbrook's conversations are undenied for, al-
though present at the hearing , Addenbrook did not testify.
* Fletcher was not interrogated about this incident while on the stand . The Union's
claim that this discharge was in violation of Section 8 (3) of the Act was withdrawn
during the hearing. It is here considered solely as an anti -union statement.
6 The undersigned here is not in any way attempting to decide upon the truth of the
contents of Fletcher 's statement but is only pointing to the coercive effect of the state-
ment as undeniedly made by Fletcher.
O Witness M. W. Parker called by Respondent was indefinite regarding the time using
all the above dates.
886572-48-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fellow employee and attended the morning meeting . After Fletcher had com-
pleted his discussion of safety matters , Parker rose and suggested the forma-
tion of a grievance committee composed of operators from both Respondent's
Virginia and Carolina Divisions. Fletcher and other supervisors remained
throughout the meeting. Fletcher was asked, and agreed, to prepare a bulletin
explaining the idea and to broach the matter to the operators at the later
`.safety meeting." At the evening meeting when Fletcher proposed the idea,
he was asked if the Committee would have anything to do with the Union
His answer was in the negative.
As agreed, on January 3, 1945, Fletcher phrased and prepared a bulletin
which he presented in his office to some 10 operators, some of whom had been
called to the office by Respondent's supervisory personnel . The bulletin had
been typed by Respondent on its own mimeograph paper. After the bulletin
had been read to the men and two changes had been made at their suggestion
therein,' the 10 operators were requested to, and did, affix their signatures to
the stencil The bulletin read as follows :
January 3, 1945
Fellow Bus Operators :
The undersigned feel that the interest of the bus operators employed
by Norfolk Southern Bus Corporation will be better served if they hale
at committee of six, three from the Virginia Division, and three from the
Carolina Division, to represent all the bus operators in dealing with the
management in such matters as rates of pay, pension, rules and working
conditions and any other problems which may affect the bus operators
a group.
To get this going, the undersigned are taking the lead and suggest that
we all elect a committee by the following method:
First : Every bus operator will nominate three men.
Second : The six men from each division receiving the highest number
of nominations will be candidates for election, and from those six men
the bus operators will elect three from each division to form a committee
to serve for the calendar year 1945. Any member of the committee so
elected who is promoted to a supervisory position, or who leaves the service
of the company or resigns from the committee will be replaced by the vote
of the majority of the bus operators. It will be understood that the
entire committee, or any member of the committee, can be replaced at the
will of the majority of the bus operators at any time.
We want everybody to take part in the nomination and enclose herewith
it nominating ballot and an envelope. Write on the ballot the names of
any three operators whom you think can best represent all of us; then seal
it in the envelope enclosed and hand it to one of the undersigned on or
before midnight January 5th.
These nominating ballots will be opened at 10:00 A. M., January 6, 1945,
in the Drivers' Room at the Norfolk Union Bus Terminal. If you would
like to be there, you are Invited to be present.
On January 8th we will have a final ballot made np and handed you
setting forth the names of the six men from your division who have been
nominated and you will then vote for three of these men to constitute
'These change, were made to eliminate a provision requiring the ballots to be signed
by the voters
NORFOLK SOUTHERN BUS CORPORATION 11 7 1
a committee. You will be notified when and where the final ballots will
d t db de opene an coun .e
Very truly yours,
(s) S. H. Robbins (s) W. J. Austin
(s) C. D. Perry (s) Marshall Cherry, Jr.
(s) R. J. Melton (s) R. M. Hurdle
(s) K. W. Smith (s) Haywood Spruill
(s) C. L. Fentress (s) Jesse W. Spivey
Respondent then had mimeographed copies of the bulletin run off and dis-
tributed to all its operators
system.
on the two divisions
In accordance with the bulletin, Fletcher had
through its antra -office mail
nominating ballots prepared
and distributed to the employees . Following the nominations Respondent
mimeographed and distributed the following document regarding the final
balloting:
January 6, 1945
INSTRUCTIONS FOR FINAL BALLOT
Enclosed herewith is the final ballot , showing the names of the bus
operators nominated by your division as candidates for election to the
committee to represent you in dealing with the management.
The candidates are alphabetically listed below:
Virginia Division Carolina Division
W. J. Austin Marshall Cherry, Jr.
C. L. Fentress Harry Crummey
S. L. Fulgham M. W. Davidson
C. D. Perry R. H. French
S. H. Robbins J. W. Melson
K. W. Smith J. E. Savin
Jesse Spivey
While the original intention was to nominate six men from each division,
two men on the Carolina Division tied for sixth place and therefore the
Carolina Ballot lists seven nominees.
In casting your ballot, place a mark (X) opposite the name of the
three (3) candidates of your choice; then seal it in the enclosed envelope
and hand it to the Dispatcher or Mr. Tom Scott
Be sure that you check only three (3) candidates, as ballots having
wore than three (3) candidates checked will not be counted.
These final ballots will be opened Monday January 8, 1945 at 3:00 PM
in the drivers' room at the Norfolk Union Bus Terminal. You are invited
to be present.
Again the Respondent prepared and distributed the ballots. In one instance
Respondent's inspector, a supervisor, delivered the ballot to an employee at
the Bus Terminal in person. The ballots were collected by Respondent's dis-
patcher and Tom Scott, another supervisor in charge of the operators' reports
and receipts On January 8, 1945, the ballots as collected were opened and
counted in the "Drivers' Room" in Respondent's terminal by Fletcher, Operator
Perry, and several other operators.
Two days later on January 10, 1945, the Board held its hearing on the
8 See below for his position
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's Petition in Case No. 5-R-1776.9 During the course of this hearing
Fletcher testified that the Respondent intended to recognize the Grievance
Committee as the bargaining agent for all the operators but had been unable
to do so because of a tie vote. However, Respondent's counsel immediately
thereafter stated that the Respondent Intended to hold that matter in abeyance
during the pendency of the Representation matter. Respondent is still holding
that matter In abeyance.
On March 8 pursuant to the Order of the Board" following the above hear-
ing, the Board held an election among the operators in the Virginia Division
which it had held to be the appropriate unit. These employees voted in favor
of the Union 34 to 30.
The Grievance Committee was without question an organization created and
assisted by Respondent. The sponsorship and assistance to this organization
was admitted by Fletcher whose defense was that such help had been requested
by the employees. Such a request is no defense under the Act which forbids
any interference In the formation of, or assistance to a labor organization by
an employer.
The conclusion is inescapable that Respondent's assistance in the formation
of the Grievance Committee was given in an effort to prevent, negate, and dissi-
pate the independent efforts of its employees to join a union of their own
choosing, to engage in concerted activities, and to bargain with Respondent
through representatives of their own choosing. Prior to the appearance of the
Union, Respondent willingly agreed orally to the idea of a Grievance Commit-
tee but made absolutely no overt move to implement the proposal. The matter
lay dormant from either April, May, or August despite many reminders to
Fletcher from operator Parker. However, promptly after the efforts of the
Union were shown to be serious by the filing of the Petition, Respondent moved
with speed and dispatch to implement the proposal even though Fletcher
stressed the fact that the Christmas season was an excessively busy time for
Respondent. The election of members of the Grievance Committee in the
week prior to the Board hearing was conducted in unseemly haste in order
to present a fait accompli to the Board at the hearing. The Respondent's
willingness to recognize the Grievance Committee compared to its obvious
reluctance to recognize the Union even after Certification as found hereinafter
all point to the same conclusion. The facts speak as clearly as to Respondent's
intent as Fletcher did on the witness stand.
The undersigned therefore finds that by the acts above found, the Respondent
interfered with, coerced, and restrained its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
On February 15, 1945, the Board issued its Decision and Direction of Election
in Case No. 5-R-177611 finding among other things that "all bus drivers and
conductors of the Virginia Division excluding bus cleaners, mechanics, trans-
portation clerks, roadmen or inspectors, dispatchers, bus masters and all super-
0 Although clearly a labor organization , the Grievance Committee made no attempt to
intervene in either the above or the present hearing
10 Dated February 15, 1945.
u 60 N. L. R. B. 630.
NORFOLK SOUTHERN BUS CORPORATION 1173
visory employees with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act."
Although at the present hearing, the Respondent introduced evidence to the
effect that, in general, labor contracts between railroad companies and the
unions representing their employees were not coextensive with the seniority
districts as happens to be the case in the unit found appropriate above by the
hoard, this evidence would not affect the question of the appropriateness of
the unit here especially in view of the progress of organization among the
employees of the Respondent which the Board found to be a determining factor
in its decision.
Therefore the undersigned finds, in accordance with the above finding by
the Board, that all bus drivers and conductors of the Virginia Division, exclud-
ing all cleaners, mechanics, transportation clerks, roadmen or inspectors. dis-
patchers, bus masters, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
2. The majority
Pursuant to the above-cited Decision and Direction of Election, au election
by secret ballot was conducted upon March 8, 1945, under the supervision of
the Regional Director of the Fifth Region. After the conclusion of the ballot-
ing, a tally of ballots was furnished the Respondent and the Union In accord-
ance with the Rules and Regulations of the Board. This tally showed that
of the approximate 75 eligible voters in the appropriate unit found above, 64
valid ballots were cast, of which 34 were in favor of the Union, 30 against.
Three challenged ballots were cast.
On March 13, 1945, the Respondent filed objections to the conduct of the
election, alleging in substance (1) that the Union forced employees to vote for
it by the use of coercion, undue influence, and false representations; (2) that
the Board improperly used the January 16-31, 1945 pay roll in determining
eligibility to vote thereby depriving four newly employed men of the oppor-
tunity to participate in said election; and (3) that the unit found by the
Board was not appropriate.
In its Supplemental Decision and Certification dated May 29, 1945," the
Board considered the Respondent's Objections and ruled against all three
saying in regard to Respondent's first Objection the following:
We have considered the Company's Objections, the Regional Director's
Report on Objections and Supplemental Report on Objections and Excep-
tions Thereto filed by the Company, and the Company's separate Excep-
tions to said reports. With respect to the first objection the charge of
coercion, undue influence and false representation by the Union, the alle-
gation of which the Union denies, the Company submitted no evidence to
the Regional Director, although invited several times to do so, in substan-
tiation of its charge. In the absence of such evidence, the Regional Direc-
tor was not required to interview the Company's employees or to hold
a formal hearing, as contended by the Company, on the unsupported alle-
gations of misconduct made against the Union [citing cases].
U61 N. L. It. B. 1591.
1174 DECISIONS OF NATION AL LABOR RELATIONS BOARD
The Board further "certified that the Brothel hood of Railroad Trainmen has
been designated and selected by a majority of all bus drivers and conductors
employed by the Norfolk Southern lies Corporation, Norfolk, Virginia, in its
Virginia Division" in the above appropriate unit as their representative for
the purposes of collective bargaining, and that pursuant to Section 9 (a) of
the Act, the aforesaid organization is the exclusive representative of all such
employees for the purposes of collective bargaining Nxith respect to rates of
pay, wages, hours of employment, and other conditions of employment.
In its answer to the present complaint the Respondent i eiterates the identical
charges and objections to the Election stated in its Objections to the Conduct
of Election and rifled upon by the board in the Supplemental Decision quoted
above.
At the hearing the Respondent attempted to introduce evidence in support
of its charge originally made in its Objections to the Conduct of Election that
the Union had by coercion, undue influence, and false represontation forced the
employees to vote for it at the March 8. 1945, election This evidence %Aas
refused on the grounds that, when the matter had been properly before the
Board upon the Respondent's own Objections to the Conduct of Election, the
Respondent had failed to produce such evidence although requested so to do
and thereby in effect waived its claim If respondents or unions were per-
mitted to refuse to produce evidence in support of their own objections to
elections conducted by the Board at the appropriate time provided for their
consideration and later to reiterate those same charges in another proceeding
at the option of the complaining party, then the whole administrative machin-
ery set up by Congress for the purpose of properly administering the Act would
never be able to reach a final determination and the administrative process
would become a mockery.
There was no new and undetermined matter introduced at the hearing affect-
lug the certification of the Union as the duly designated exclusive bargaining
representative of the employees in the above-found appropriate unit made by
the Board on May 29, 1945.
The undersigned therefore finds, in accordance with the Board's previous
determination, that the Brotherhood of Railroad Trainmen was the duly desig-
nated bargaining representative of a majority of the employees in the aforesaid
bargaining unit and that, pursuant to the provisions of Section 9 (a) of the
Act, the Union as on May 29, 1b45, and at all times thereafter has been and
now is the exclusive representative of all employees in the above-found appro-
priate unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of employment.
3 The refusal to bargain
The -Norfolk newspapers announced the Board's certification of the Union
on May 31. That same day after consultation with its legal staff Respondent
circulated the following statement regarding respondent's position as to the
Certification to all its employees:
ALL BUS OPERATORS AND CONDUCTORS :
As you may have seen in today's newspaper the National Labor Relations
Board ruled that the Bus Operators and Conductors of the Virginia Divi-
sion of this Company were entitled to bargain separately with the Man-
agement and be represented by the Brotherhood of Railroad Trainmen.
For several reasons the Company disagrees with the opinion of the
,National Labor Relations Board and intends to contest this ruling through
NORFOLK SOUTHERN BUS CORPORATION 1175
every court of resort. The Company is now preparing a petition requesting
the United States Ciicu*l Court of Appeals to review the Board's ruling.
The Company takes the position that all of its Bus Operators, including
Conductors, should be treated alike. If the Management is forced to deal
separately with the Bus Operators on its Virginia Division there will be
either different agreements for the two divisions, or a bare majority of the
Virginia Operators will be bargaining, through the Brotherhood of Rail-
road Trainmen, with the Company, for all of the Bus Operators and Con-
ductors, in matters relating to rates of pay, rules and working conditions.
Stated in another way, this would mean that 34 Bus Operators and Con-
ductors who voted for the Brotherhood of Railroad Trainmen would have
the power to select the bargaining representative for all the Bus Operators
and Conductors employed by this Company, numbering approximately 125.
The Company feels that any such result would be unfair and unjust to the
great majority of this class of its employees and would lead to dissenscon
and unrest.
The Management wants you to bear in mind that you now have and will
continue to have the right, either individually or in groups, to present
grievances to the Company at any time, whether you are a member of a
union or not.
This bulletin succinctly states Respondent's position as to recognition of the
Union which it has consistently maintained from the time of its November 16,
1944, letter to the Union to the present date as exemplified by its answer in the
present proceeding.
It is also noteworthy that Respondent was able to decide its position regard-
ing the Certification on the very same day that the Certification was announced.
On June 6, 1945, Respondent received by mail a letter dated June 4 from the
Union requesting a conference with Respondent on June 7 for the purpose of
negotiating a working agreement.
On June 7, J. W. Brennan, union vice president. saw Fletcher at Respond-
ent's Bus Terminal and inquired about the requested meeting. Fletcher told
him that the above bulletin was not necessarily Respondent's final determina-
tion but that its officials were busy in other parts of the country. He agreed
to rr} to arrange a meeting. It was finally decided that all parties could be
present for a meeting on June 9.
This iueeting held as arranged was attended by Fletcher, Bragg, and Winder,
the bitter tiro being respectively Respondent's General Solicitor and Assistant
Solicitor, on behalf of Respondent and by Brennan, Whitehorne, union or-
ganizer and the local Union Committee composed of Perry, Fulghum and Han-
ner on behalf of the Union. Brennan inquired whether Respondent was ready
to recognize the Union and bargain with it. Bragg answered that the Com-
pany had not had time to consider the matter and hence was still undecided
Brennan also inquired whether the May 31 notice was final. The answer was
the same. When asked when Respondent could make its determination Bragg
told Brennan of the various engagements of the Respondent's officials for the
following week and agreed to send Brennan a written answer to the inquiry 13
Brennan then said that he did not know if he could keep the men "in line that
log' and that he would proceed to take "other steps." The union group
departed.
la The testimony was in dispute as to whether this letter was to be sent in a week or
two weeks Believing this time element to be immaterial, the undersigned does not
attempt to resolve this conflict,
Is
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday , June 11 , Brennan filed the charges with the Board on which the
present complaint is based.
No further conferences have been held between the two groups.
Bragg never sent the letter referred to during the conference.
Respondent's answer alleges that since the June 9 meeting Respondent has
not considered the matter but has left It in abeyance. The answer attempts to
justify this inaction on the ground that the Union left the meeting and subse-
quently never sought to renew the negotiations.
After Certification by the Board the question of recognition is no longer a
subject for bargaining and the certified Union Is entitled as a matter of law
to recognition as the exclusive representative of all the employees in the ap-
propriate unit. McQuay-Norris Mfg. Co. v. National Labor Relations Board,
116 F. (2d) 748 at 751. Therefore Respondent's attempted excuse is not well
founded as Respondent was attempting to bargain over a question of law
settled by the Board's Certification.
Respondent also contends that before it can be held to have failed to bargain,
the Union should have again requested Respondent to negotiate. The Union
is not required to make useless gestures. Respondent had already on May 31
unequivocally stated that it did not intend to recognize the Union or to bargain
with it but was already preparing to "contest this ruling (of the Board) through
every court of resort ." [Emphasis that of Respondent .] This statement of
policy being exactly consistent with every statement made by Respondent since
November 16, 1944, would justify a reasonable man in believing that Respond-
ent meant what it so consistently said. Regardless the Union attempted on
June 9 to bargain only to be met with a refusal of recognition together with a
statement that the Respondent might conceivably change its mind. A reason-
able man would conclude that further delay would be useless . Hence if, in
fact , the Respondent had changed its mind, the burden was on it to so inform
the Union. This Respondent failed to do. No such change occurred as Re-
spondent later reiterated its original position in its answer to the Board's
complaint. A further request to bargain would therefore have been futile.
Both by its considered statement of position dated May 31, Its refusal to
recognize on June 9, 1945, and its failure to notify the Union of any change in
its determination thereafter, the Respondent has refused to bargain collectively
with the Union as the exclusive representative of Its employees in an appropri-
ate unit and has thereby interfered with, restrained, and coerced its employees
In the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged discharge
At the hearing counsel for the Board amended the complaint by striking all
references therein to the alleged discriminatory discharge of S. L . Fulghum.
This motion to strike was allowed without objection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
In connection with the operations of the Respondent described in Section 1,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden
Ing and obstructing commerce and the free flow of commerce.
NORFOLK SOUTHERN BUS CORPORATION 1177
V. THE REMEDY
Since it has been found that the Respondent has engaged in 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.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Brotherhood of Railroad Trainmen is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. All bus drivers and conductors of the Virginia Division excluding bus
cleaners, mechanics, transportation clerks, road men or inspectors, dispatchers,
bus masters, and all other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. Brotherhood of Railroad Trainmen was on May 29, 1945, and at all times
thereafter has been, the exclusive representative of all employees in the afore-
said unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. By refusing on June 9, 1945, and at all times thereafter to bargain col-
lectively with Brotherhood of Railroad Trainmen as the exclusive representa-
tive of all its employees in the aforesaid appropriate unit, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the Respondent,
Norfolk Southern Bus Corporation, and its officers, agents, successors, and as-
signs shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Railway Trainmen
as the exclusive representative of all its bus drivers and conductors of the
Virginia Division excluding bus cleaners, bus masters, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such action,
(b) Interfering with, restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor organizations, to join or assist
Brotherhood of Railroad Trainmen or any other labor organization of their
own choosing, to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Brotherhood of Railroad Train-
men as the exclusive representative of all of its employees in the aforesaid
appropriate unit ;
(b) Post at its Bus Terminal in Norfolk, Virginia, and at its other Terminals
in the Virginia Division, copies of the notice attached to the Intermediate
Report, marked "Appendix A." Copies of said notice to be furnished by the
Regional Director for the Fifth Region, after being signed by the Respondent's
representative, shall be posted by the Respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Fifth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulation of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of
a statement in writing, setting forth such exceptions to the Intermediate Report
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 four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section 33,
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 tho
date of the order transferring the case to the Board.
THOMAS S. WrisoN,
Trial Examinaer.
Dated November 8, 1945
APPENDIX A
NOTICE To A1.i, E iI'I.o\EEs 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
NORFOLK SOUTHERN BUS CORPORATION 1179
organizations, to join or assist Brotherhood of Railroad Trainmen or any
other labor organization, 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. All our em-
ployees are free to become or remain members of this union, or any other
labor organization.
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment, or other
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is: All
bus drivers and conductors of the Virginia Division excluding bus cleaners,
mechanics, transportation clerks, road men or inspectors, dispatchers, bus
masters, and all other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action.
NORFOLK SOUTHERN BUS CORPORATION,
Employer.
Dated ....................... By
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.