Pacific Greyhound Lines

National Labor Relations Board - Board Decisions

Mar 29, 1940

22 N.L.R.B. 111 (N.L.R.B. 1940)

In the Matter Of PACIFIC GREYHOUND LINES and BROTHERHOOD OF
RAILROAD TRAINMEN
Case No. C-1338.-Decided March 29, 1940
Motor Bus Industry-Collective Bargaining; Interfei ence, Restraint, and
Coercion: refusal of employer to recognize, meet, or negotiate in any respect
whatsoever with certified representative ; outstanding collective agreement
made prior to representation proceeding and providing for exclusive recognition
of union other than one certified in proceeding and for a closed shop, no
justification for employer refusing to bargain collectively with certified
representative; continuance of closed-shop contract made with union other
than certified representative, a proper subject of collective bargaining with
certified representative-Closed-Shop and Exclusive Recognition Contract:
Effect of Change of Ajjiliation of Majority in Unit Covered, by. Expressed in
Election and Certification: MADDEN : where, in proceedings under Section
9 (c), a collective agreement providing for exclusive bargaining rights, a closed
shop, and working conditions, is held to constitute no ground for staying an
investigation and certification of representatives because of the doubtful status
of the contracting union as a freely chosen representative when the contract
was made and because of the possibility of unilateral termination of the con-
tract, such contract is defeasible, subject to the outcome of the investigation,
and if in the election therein directed a union other than the contracting
union is chosen and certified as the statutory representative, the entire contract
becomes inoperative as a matter of law ; where in such proceedings a repre-
sentative is certified for employees in a unit smaller than one covered by the
closed-shop contract, contract becomes inoperative at least in so far as it relates
to employees in unit covered by certification ; SMITH : certification of a statu-
tory representative other than the union which has made an exclusive recogni-
tion, closed-shop contract, results in termination by operation of law of the
contract or its terms where such conflict with action by certified representative
as representative, and not in termination of all substantive terms of the con-
tract otherwise valid; closed-shop provision of contract abates since construed
as not intended to benefit a successor organization ; provision of closed-shop
collective contract permitting unilateral termination of contract upon notice
by employer and contracting union, if interpreted to prevent termination by
employees through a newly selected and certified representative other than
contracting union, invalid as in derogation of rights of employees under Section
9 (a)-Collective Bargaining: Continuing Authority of Certified Representative
.after Majority Designation of Another Representative: certified representative
continues to represent exclusively employees in appropriate bargaining unit,
irrespective of designation by majority in unit of another representative, so
long as certified representative is willing to act and establish contractual
relations with employer and a reasonable period for it to do so has not elapsed ;
3 months intervening between certification and issuance of complaint insufficient
to show that reasonable period has elapsed ; designation by majority of new
representative after refusal of employer to bargain with certified representative
held not to establish incapacity of certified representative to act, and its au-
22 N. L. R B., No. 12.
111
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thority continues until employees in unit have had a reasonable opportunity to
be represented by it-Procedure : Legal Effect of Determinations, Findings,
Conclusions , and Certification of Representation Proceeding Upon Issues in
Complaint Proceeding , Involving Section 8 ( 5) : determinations , findings, con-
clusions , and certification in representation proceeding not res judicata of same
issues in subsequent complaint proceeding between same parties involving
violation of Section 8 (5) ; parties in interest to representation proceeding
cannot in any subsequent complaint proceeding try and have heard de novo
by Trial Examiner and Board questions or matters adjudicated in representa-
tion proceeding in absence of cogent showing of possible error by the Board in
its previous adjudication upon the record there made ; showing of parties
herein held not to warrant reexamination of decision in prior related repre-
sentation proceeding , and Board and Trial Examiner properly treat as admin-
istratively decided questions or matters in representation proceeding adjudicated
by determinations , findings, conclusions , and certification ; presumptive effect
not withheld , in subsequent complaint proceeding involving Section 8 ( 5), from
determinations , findings, conclusions , and certification of prior related repre-
sentation proceeding , despite offer of additional evidence upon previously
adjudicated issues, since evidence could have been presented in representation
proceeding and no apparent reasonable cause is shown why it was not; rulings
of Trial Examiner striking allegations of answer and rejecting evidence chal-
lenging validity of determinations , findings , conclusions , and certification of
prior related representation proceeding , sustained-Procedure : Record on'Re-
view under Section 9 (d): where decision in complaint proceeding involving
violation of Section $ ( 5) rests in part upon determinations , findings, con-
clusions , and certification in prior related representation proceeding the repre-
sentation proceeding record becomes on review part of the record of the com-
plaint proceeding ; where decision in representation proceeding incorporates
findings of Board in prior representation proceeding , parties to review in-court
of Board's order in subsequent complaint proceeding based in part thereon
may have certified and filed in court transcript of record in first representation
proceeding to the extent relevant-Evidence : Admissibility in Complaint Pro-
ceeding Involving Section 8 •( 5) of Record of Previous Related Representation
Proceeding : evidence previously introduced in related representation case and
record of said case not admissible in complaint proceeding involving Section
8 (5) where purpose is to obtain reexamination of determinations, findings,
conclusions , and certification of representation case, in absence of cogent show-
ing of possible error by Board in representation case upon record there made;
additional evidence which could have been presented in previous related repre-
sentation proceeding " but which was not there presented, for no apparent
reasonable cause, not admissible in related complaint proceeding on issues
previously adjudicated-Section 9 (b) and (c ): Validity : Section 9 ( b) and (c)
do not involve improper delegations of legislative power to administrative
agency; doctrine of Globe case does not involve improper delegation by Board
to employees of its statutory authority-Investigation of Representatives: Unit
Appropriate for Collective Bargaining : Prior Determination of Unit: prior
determination of appropriate unit, not res judicata ; mere interest of employer
in maintaining industrial unit, no ground for adhering to prior determination
that craft is to be included in industrial unit; closed -shop contract covering
industrial unit made in reliance upon prior determination that separation of
craft unit from industrial unit was inappropriate , no ground for Board adhering
to determination in subsequent representation proceeding where doubt exists
whether contracting union was freely chosen representative when contract
PACIFIC GREYHOUND LINES 113
was made and contract at time of representation proceeding can be terminated
unilaterally by either party thereto-Investigation of Representatives : Scope of
Issues: Employer Assistance to Competing Union or Effects Thereof: pro-
ceedings under Section 9 (c) contemplate inquiry into and hearing upon all
matters necessary and relevant to an investigation of the controversy con-
cerning representation and to a determination of the statutory representative ;
where existing closed-shop contract is urged as basis for stay of investigation
and determination of representatives , question whether contracting union did
not constitute a freely chosen representative at time contract was made because
of prior employer action illegal under Act , or whether doubt in that respect
existed, properly within scope of issues of representation proceeding ; deter-
mination of such question requires no filing of a charge and proceedings under
Section 10 ( b) and ( c) -Investigation of Representatives : Statutory Contract
as Basis for Board not Proceeding under Section 9 (c) : in furtherance of
policy of Act to attain stabilized labor relations in industry through collective
bargaining agreements Board will not as a matter of administrative discretion
proceed under Section 9 ( c) where statutory contract between employer and
lawful statutory representative is outstanding , and no circumstance shown
indicating policy would not be furthered ; doubt whether contracting union
upon execution of closed -shop contract was a freely chosen statutory repre-
sentative purged of effects of prior unlawful employer assistance , reason for
not considering contract ground for staying investigation and determination of
representatives ; instability of contractual obligation resultant from provision
of statutory contract permitting termination of contract by unilateral action
at or about time of representation proceeding , reason for not staying investigation
Mr. John P. Jennings and Mr. John T. McTernan, for the Board.
Brobeck, Phleger and Harrison, by Mr. Gregory A. Harrison and
Mr. Moses Lasky, of San Francisco, Calif., for the respondent.
Mr. D. A. MacKenzie, Mr. W. P. Nutter, and Mr. C. P. Randall,
of San Francisco , Calif., for the Brotherhood.
Mr. Robert Littler and Mr. Herbert E. Wenig, of San Francisco,
Calif., for the Amalgamated and the Amalgamated, Division No.
1114 thereof, intervenor.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Brotherhood of Railroad Trainmen,
herein called the Brotherhood, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twentieth
Region (San Francisco, California), issued a complaint dated June
14, 1939, against Pacific Greyhound Lines, a corporation, San Fran-
cisco, California, herein called the respondent, alleging that the re-
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent had engaged and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. A copy of the complaint, accom-
panied by notice of hearing, was duly served upon the respondent,
upon the Brotherhood, and upon Amalgamated Association of Street,
Electric Railway and Motor Coach Employes of America, herein
called the Amalgamated, a labor organization claiming an interest
in this proceeding.'
With respect to the unfair labor practices the complaint alleged
(1) that the respondent on April 25, 1939, and thereafter, refused
to bargain collectively with the Brotherhood as the representative
of bus drivers employed by the respondent although the Brotherhood
was at all times the exclusive collective bargaining representative
of these employees pursuant to Section 9 (a) of the Act 2 and on
March 10, 1939, had been certified to be such representative by the
Board in certain consolidated representation proceedings, entitled
Matter of Pacific Greyhound Lines and Amalgamated Association
of Street, Electric Railway and Motor Coach Employes of America;
Matter of Pacific Greyhound Lines and Brotherhood of Railroad
Trainmen, Cases Nos. R-926 and R-927,3 herein called the Represen-,
tation Proceedings; and (2) that the respondent by its said refusal
to bargain collectively with the Brotherhood interfered with, re-
strained, and coerced its employees in the exercise of rights guar-
anteed to them by Section 7 of the Act.
On June 24, 1939, the respondent filed an answer, averring that
on April 25, 1939, it "declined to grant" the Brotherhood "a con-
ference" for collective bargaining which that labor organization
as the exclusive bargaining representative of the respondent's bus
drivers previously requested, that at all times since the respondent
"failed" to bargain collectively with the Brotherhood as such repre-
sentative, but that the respondent's conduct in this or any other
respect constituted no unfair labor practice under the Act. The
answer, in paragraphs III to XVII thereof, further alleged, among
other things, that the certification issued by the Board on March 10,
' The name of the Amalgamated is thus stated in its constitution.
2 Section 9 (a) of the Act provides :
Representatives designated or selected for the purposes of collective bargaining
by the majority of the employees in a unit appropriate for such purposes, shall be
the exclusive representatives 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 9 N. L. R. B. 557 (Decision and Direction of Elections, October 29, 1938) ; 9 N. L. It. B.
578 (Amendment to Decision and Direction of Elections, November 10, 1938) ; 10 N. L.
R B 659 (Second Amendment to Decision and Direction of Elections, December 14, 1938) ;
11 N L R B 1070 (Supplemental Decision, Certification of Representatives, and Order,
March 10, 1939).
PACIFIC GREYHOUND LINES 115
1939, certifying the Brotherhood as the exclusive collective bargain-
ing representative of the respondent 's bus drivers , and the "orders and
decisions" in the Representation Proceedings upon which certifi-
cation was based, were invalid ; that prior to that date, on April
15, 1938, the respondent and the Amalgamated ' entered into certain
agreements at times herein called the "Master Agreement , as sup-
plemented ," and at times "the contract of April 15, 1938, " "adopting
and affirming" a collective agreement previously made by- the parties
on September 7, 1937, with respect to wages, hours of service, and
other working conditions of employees of the respondent, includ-
ing bus drivers , and requiring all such employees to be members
of the Amalgamated,' the respondent thereby agreeing "to recognize
the Amalgamated Union e as the sole representative for the purpose
of collective bargaining of its employees not represented by other
unions affiliated with the American Federation of Labor "; that at
the time of entering into these agreements , a majority of the bus
drivers employed by the respondent were, and at that time and at
all times thereafter a majority of all the respondent 's employees
were and are , members of the Amalgamated and had chosen it as
their exclusive collective bargaining representative ; that said agree-
ments were to remain in force and effect until December 31, 1939; 7
that after the issuance of the above -mentioned certification of March
10, 1939, the Amalgamated notified the respondent that it would con-
test the validity of the certification and would pursue its remedy
as a party aggrieved for a review thereof in manner provided by law ;
that the Amalgamated 8 contends that these agreements are valid
and binding upon the respondent in all respects , that pursuant to
the provisions thereof it is and will continue to be the exclusive
* The answer refers throughout to the Amalgamated as the labor organization with whom
the respondent from time to time made the collective agreements therein mentioned, and
to whom recognition was extended as bargaining representative of all employees of the
respondent , including bus drivers , except employees who were members of other unions
affiliated with the American Federation of Labor. In their briefs both the respondent and
the intervenor , mentioned below, similarly refer to the Amalgamated , as such, as the con-
tracting party, and the intervenor also refers to itself in that capacity . The agreements
were not made with the Amalgamated , as such, but with Amalgamated Association of
Street, Electric Railway and Motor Coach Employes of America , Pacific Greyhound Divi-
sion No. 1114 , hereinafter referred to as the Amalgamated , Division No. 1114, a local
division of the Amalgamated comprising employees of the respondent who are members
of the Amalgamated. The provisions contained in these agreements relating to recognition
for purposes of collective bargaining representation , similarly advert to the Amalgamated,
Division No. 1114, and not to the Amalgamated , as such , as the collective bargaining repre-
sentative . However, it is clear from the character of the intervention and otherwise that
the Amalgamated and its division have been treated by all parties as one and the same
representative
5 This closed-shop requirement, as agreed upon, was that the employees would be mem-
hers of the Amalgamated , Division No 1114. See footnote 4, supra
6 See footnote 4, supra.
7 The contract of April 15, 1938, apparently was rene\ied automatically on December 31,
1939 The record does not show otherwise
8 See footnote 4, supra.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining agent of all the respondent's above-mentioned
employees, including bus drivers, and that it "will hold the respondent
strictly accountable in damages and otherwise for any failure .. .
to comply with all of the terms and provisions of the contract and for
any refusal to treat the, Amalgamated Union 9 as a contracting
party thereto and as the exclusive bargaining agent for all [the
respondent 's] . . . employees, including the bus drivers."
On June 27, 1939, the Amalgamated and Amalgamated Association
of Street , Electric Railway and Motor .Coach Employes of America,
Pacific Greyhound Division No. 1114, a local division of the Amalgam-
ated , herein called the Amalgamated, Division No. 1114,10 filed a
petition requesting leave to intervene in this proceeding. The
Amalgamated and its division were referred to in the petition and
at the hearing as , and are hereinafter called, the intervenor. The
petition set forth various matters relating to the existence of the
contract of April 15, 1938, already mentioned in connection with the
allegations of the respondent's answer; 11 and alleged that since
March 10, 1939, when the certification of the Brotherhood issued, and
"for at least two months" prior to the filing of the intervenor's
petition herein, a majority of the respondent's bus drivers were mem-
bers of the Amalgamated and of the Amalgamated, Division No. 1114,
and had designated that organization their exclusive agent for collec-
tive bargaining. The petition requested leave to intervene "in order
to protect the contract ... and in order to protect the status of said
Amalgamated Association and said Division as the exclusive agent
for- collective bargaining as aforesaid and for any other purpose."
Pursuant to notice a hearing was held in San Francisco, California,
on June 29 and 30 , 1939, before J. J. Fitzpatrick, the Trial Examiner
duly designated by the Board. The Board, the respondent, the
Brotherhood, and the intervenor appeared by counsel. At the open-
ing of the hearing counsel for the Board moved to strike from the
respondent's answer paragraphs III to XVII, both inclusive, to-
gether with annexed exhibits "B," "C," "D," "E," and "F" thereof,
for the reason, principally, that these paragraphs and respective
exhibits stated no defense to the complaint, but constituted matters
of argument, opinion, and conclusion; and further, if they did set
forth any defense, such defense was one already concluded in so far
as the instant case was concerned by the Representation Proceedings
and if to be availed of at all properly should be raised before the
United States Circuit Court of Appeals of the appropriate circuit in
9 See footnote 4, supra.
10 See footnote 4, supra.
11 There are some variations between the allegations of the petition and of the respond-
ent's answer in regard to the agreement.
PACIFIC GREYHOUND LINES 117
proper proceeding under the Act. The Trial Examiner granted the
motion. He also granted the petition to intervene, above mentioned,
subject to the, limitation, however, that proof offered thereunder be
restricted to matters in., issue affecting the intervenor. The Board,
the respondent, the Brotherhood, and• the intervenor were represented
by counsel and participated in the hearing. Full opportunity was
afforded all parties to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues material
to their interests. During the course of the hearing the Trial
Examiner in conformity with his rulings on the above motion and
petition, refused to admit in evidence the record in the Representa-
tion Proceedings and certain other, testimony and documentary evi-
dence offered by the respondentL_and by the intervenor, respectively,
in support of the answer and petition. At the close of hearing he
denied a motion of the intervenor that the proceedings be stayed
until the Board acted on a certain petition for investigation and
certification of representatives which it filed in the Regional Office
on or about June 27, 1939. The Trial Examiner made rulings on
other motions and objections to the admission of evidence. The
Board is of the opinion that as a matter of proper administrative
procedure and in accordance with principles governing judicial
review hereinafter discussed, the Trial Examiner should have ad-
mitted to the record the exhibits 12 offered by the parties pertaining
to the record in Matter of Pacific Greyhound Lines and Brotherhood
of Locomotive Firemen and Enginemen, Case No. R-195.13 These
exhibits are hereby admitted to the record. The Board hereby also
admits to the record Respondent Exhibit No. 1 and Intervenor's
Rejected Exhibits Nos. 1 and 2. The.Board finds that save for the
rulings of the Trial Examiner in this respect no prejudicial errors
were committed.14 The rulings, so limited, are hereby affirmed.
On August 4, 1939, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served on each of the parties,
finding that the respondent had engaged in, and was engaging in,
unfair labor practices within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the Act, and recommending that the
respondent cease and desist from its unfair labor practices, that it
bargain collectively upon request with the Brotherhood, as the exclu-
sive collective bargaining representative of all the respondent's bus
12 These exhibits are Respondent's Rejected Exhibits Nos 3, 4, 5, 6, 17, and 18.
134 N. L. R B. 520 (Decision and Direction of Election, December 16, 1937) ;,6 N. L.
B. B. 163 (Supplemental Decision and'Order, March 25, 1938).
14 The propriety of the Trial Examiner's rulings in striking from the respondent' s answer
paragraphs III to xvii, both inclusive, and in excluding evidence offered in connection
therewith, is further considered below. ,
283033-41-vol 22-9
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers, and that it take certain other affirmative action to remedy the
unfair labor practices which he found . On August 7, 1939, the Board
ordered the case transferred to and continued before it.
On August 23, 1939, the intervenor filed exceptions to the Inter-
mediate Report and to the conduct of the hearing, and on August
24, 1939, the Respondent did likewise. Thereafter, the respondent,
the intervenor, and the Brotherhood each submitted a brief in sup-
port of its respective position, and the respondent further submitted
a brief in reply to the brief of the Brotherhood, and a supplemental
brief.
Pursuant to notice , and upon request of the intervenor , a hearing
for the purposes of oral argument was held on September 28, 1939,
before the Board in Washington, D. C. The intervenor and the
Brotherhood appeared by counsel , presented oral argument, and
otherwise participated in the hearing. The Board has considered
the exceptions to the Intermediate Report and, in so far as they are
inconsistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Pacific Greyhound Lines, the respondent, is a California corpora-
tion, having its principal place of business in San Francisco, Cali-
fornia. It operates an interstate motor bus transportation system
in the western section of the country, transporting for hire passen-
gers, baggage, mail, express, and newspapers under regularly pub-
lished tariffs in or through the States of Oregon, California, Nevada,
Arizona, Utah, New Mexico, and Texas. For the year ending De-
cember 31, 1938, the respondent carried 8,463,532 passengers a total
of $35,008,023 bus miles, and 551,374,935 passenger miles for a total
operating revenue of $9,423,840. During the same period it expended
$2,812,361 in wages and salaries , in addition to a management fee
of $7,200 which it paid to The Greyhound Corporation, the holder
of a majority of its outstanding stock. On December 31, 1938, the
respondent owned 507 passenger busses, of which 458 were operated,
and employed 1,551 employees, of whom 187 were office employees,
676 were passenger-car operators, 259 were station employees, 359
were garage employees and 70 employees had miscellaneous classi-
fications. On that date, the value of its total consolidated assets was
$12,651,537.
The respondent through stock ownership controls two subsidiaries,
California Parlor Car Tours Company and Pacific Southland Stages,
PACIFIC GREYHOUND LINES 119
Incorporated, and owns 50 per cent of the capital stock of Union
Stage Terminal Company, Portland, Oregon. By means of inter-
change agreements with independent motorbus companies and of
operating traffic and facility arrangements with other so-called Grey-
hound companies, the respondent and its subsidiaries operate as a
coordinated part of an integrated system of national motorbus
transportation.
We find ,that the respondent is engaged in traffic, commerce, and
transportation among the several States, and that the employees
of the respondent are directly engaged in such traffic, commerce, and
transportation.
H. THE ORGANIZATIONS INVOLVED
Brotherhood of Railroad Trainmen is a labor organization admit-
ting to its membership all persons employed as bus drivers by the
respondent.
Amalgamated Association of Street, Electric Railway and Motor
Coach Employes of America is a labor organization affiliated with
the American Federation of Labor, admitting to, its membership all
employees of the respondent with the exception of executive and
supervisory employees and employees who are members of any other
labor organization affiliated with the American Federation of Labor.
Amalgamated Association of Street, Electric Railway and Motor
Coach Employes of America, Pacific Greyhound Division No. 1114,
is a local division of the Amalgamated, comprising employees of the
respondent who are members of the Amalgamated.
III. THE UNFAIR LABOR PRACTICES
A. The Brotherhood as the exclusive collective bargaining representa-
tive of the respondent's bus drivers, so certified by the Board on
March 10, 1939, in the Representation Proceedings
On March 10, 1939, the Board issued a Supplemental Decision, Cer-
tification of Representatives, and Order in the Representation Pro-
ceedings,15 wherein it.found as a fact that the bus drivers employed
by the respondent "constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of
[the respondent] . . . the full benefit of their right to self-organiza-
tion and to collective bargaining and otherwise will effectuate the
policies of the Act" ;16 and concluded as a matter of law that the
bus drivers "constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the
is 11 N L R. B. 1070.
' 11 N . L. R. B. 1070, 1073.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act." 17 The Board certified that the
Brotherhood had been "designated and selected by a majority of-the
bus drivers of [the respondent] . . . as their representative for the
purposes of collective bargaining, and that, pursuant to the provi-
sions of Section 9 (a) of the Act, [the Brotherhood] . . . is the
exclusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment." 18
The proceedings eventuating in the certification appear in the
Decision and Direction of Elections, the Second Amendment to De-
cision and Direction of Elections, and the supplemental decision
issued in the Representation Proceedingsl0 On June 7, 1938, the
Amalgamated initiated representation proceedings under Section 9
(c) of the Act by filing a petition with the Regional Director in which
it requested the Board to investigate a question which had arisen con-
cerning the representation of the respondent's employees for collective
bargaining and to ascertain and certify an exclusive collective bar-
gaining representative for these employees.20 On June 13, 1938, the
Brotherhood filed a similar petition with the Regional Director 2'
On June 15, 1938, pursuant to order of the Board, the Regional
Director issued and caused to be served upon the Brotherhood, the
Amalgamated, and the respondent notice of a consolidated hearing
to be held on the two petitions. Thereafter, the matter of the peti-
tions was heard before a Trial Examiner in a consolidated hearing
participated in by the respondent, the Amalgamated, the Brother-
hood, and the Board. On October 29, 1938, the Board issued the
Decision and Direction of Elections in which it made findings of
fact and conclusions of law, considered various contentions of the
parties, and directed the Regional Director to conduct two elections
by secret ballot among the employees of the respondent. Under the
Direction of Elections, as thereafter amended'22 one election was to
be held among the bus drivers employed by the respondent to de-
termine whether they desired to be represented for purposes of
collective bargaining by the Amalgamated, by the Brotherhood, or
-I IN. L. R. B 1070, 1074.
19 11 N L R. B. 1070, 1074.
19 See footnote 3, supra.
20 Section 9 (c) of the Act provides
Whenever a question affecting commerce arises concerning the representation of
employees , the Board may investigate such controversy and certify to the parties,
in writing, the name or names of the representatives that have been designated or
selected In any such investigation , the Board shall provide for an appropriate
hearing upon due notice, either in conjunction with a proceeding under section 10
or otherwise , and may take a secret ballot of employees , or utilize any other suitable
method to ascertain such representatives.
20 These petitions were thereafter amended. 9 N. L. R. B. 557, 559 ; 10 N. L. R. B. 659.
2210 N. L R B. 659
PACIFIC GREYHOUND LINES 121
by neither, and a second among station and clerical employees, exclu-
sive of executives and supervisors, to determine whether or not they
desired to be represented by the Amalgamated for purposes of
collective bargaining.
As stated in the Decision and Direction of Elections'23 and
amendement thereto'24 the Brotherhood took the position in the
Representation Proceedings that all bus drivers employed by the
respondent constituted by themselves a unit appropriate for collec-
tive bargaining, and, that it, the Brotherhood, pursuant to Section
9 (a) of the Act was the exclusive representative of these employees
for collective bargaining purposes. On the other hand, the re-
spondent contended that the bus drivers alone did not constitute an
appropriate bargaining unit, and, hence, the Brotherhood was not
their statutory representative; that the bus drivers were all part
of a larger bargaining unit composed of all the respondent's em-
ployees except shopmen'25 viz, bus drivers and station and clerical
employees, exclusive of executives and supervisors. The Amal-
gamated, prior to the issuance of the Direction of Elections,
was in accord with the respondent's view as to the appropriate
bargaining unit, but thereafter and prior to the holding of the
elections, filed in the proceedings an amended petition in' which it
concurred in the Brotherhood's position that the bus drivers alone
could constitute an appropriate unit.2° However, it also urged two
other units of employees as being appropriate, the larger unit com-
posed of bus drivers and station and clerical employees, exclusive
of executives and supervisors, and a so-called residual unit consist-
ing of station and clerical employees, exclusive of executives and
supervisors. The Amalgamated claimed that it had been designated
as collective bargaining representative by a majority of the em-
ployees in each of the three units, and, therefore, that it was the
sole representative of all such employees for collective bargaining.
In the Decision and Direction of Elections, and second amend-
ment thereto, the Board found that the bus drivers of the respond-
ent could be considered as a separate unit appropriate for collective
bargaining, or as a part of a larger bargaining unit consisting of
as 9 N. L. R. B. 557, 571
24 10 N. L R. B. 659.
25 Generally speaking , the respondent contended that all its employees, excluding execu-
tives and supervisors, and persons who were members of an affiliate of the American Feder-
ation of Labor other than the Amalgamated , were within the appropriate bargaining unit.
Thus, the respondent originally claimed that shopmen , except those employed in Los An-
geles and San Francisco , were in the unit. Iiowevei , it later appeared in the Representa-
tion Proceedings that these shopmen like shopmen at Los Angeles and San Francisco, were
under the jurisdiction of another affiliate of the American Federation of Labor. Upon
petition of the Amalgamated all shopmen were excluded from the case . 10 N. L R. B. 659.
M10N . L R,B 659 .
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the, respondent's bus drivers, and station and clerical help, exclusive
of executives and supervisors.27 The Board determined that under
these circumstances it would resolve this issue in accordance with
what the desires of the employees for collective bargaining repre-
sentation would indicate, as these desires were disclosed in the elec-
tions. The Board stated that if in the election directed among the
bus drivers a majority of the drivers voted for the Brotherhood,
or if in that election a majority voted for the Amalgamated and a
majority of the station and clerical employees in the second election
did not vote for the Amalgamated, the Board would determine that
the bus drivers alone constituted a unit appropriate for the pur-
poses of collective bargaining and would certify either the Brother-
hood or the Amalgamated, whichever organization received a
majority of the bus drivers' votes, as the exclusive collective bar-
gaining' representative of the -bus drivers.28 However, if a majority
of the bus drivers in the first election and a majority of the station
and clerical employees in the second voted for the Amalgamated,
then the Board would determine that the larger unit consisting of
bus drivers and station and clerical employees, exclusive of execu-
tives and supervisors, to be appropriate and would certify the
Amalgamated as the exclusive representative of all employees in
such unit.211 Finally, if a majority of the bus drivers voted for the
Brotherhood, and a majority among the station and clerical em-
ployees voted for the Amalgamated, then, as already stated, the
Board would certify the Brotherhood as the sole representative of
the bus drivers, and also would certify the Amalgamated as the
sole representative of the other employees.30
From December 15 to 28, 1938, the election directed among the bus
drivers was held, and in January 1939 ballots were taken of the sta-
tion and clerical employees, exclusive of executives and supervisors.s'
In the bus drivers' election a substantial majority of the votes cast,
364 of the 605 counted, were for the Brotherhood.32 The Amalgam-
ated received 227 votes. 33 In the other election the Amalgamated,
which was the only labor organization on the ballot, did not obtain
a majority of the votes counted. It received 130 of 262 votes.34
Thus, the elections showed that a substantial majority of the bus drivers
desired to be represented for purposes of collective bargaining by the
Brotherhood, whereas neither a majority of the bus drivers nor a
87 9 N. L. R. B. 557; 10 N . L. R. if 659`
28 9 N. L. R. B. 557 , 571-574; 10 N. L. R. B. 659.
29 9 N. L. R B 557 ; 10 N. L. R. B. 659, 663
30 10 N. L R B. 659.
8111 N. L. R. B. 1070
11 N . L. R. B. 1070.
8811 N. L. R. B. 1070
8411 N. L . R. B. 1070
PACIFIC GREYHOUND LINES 123
majority of the bus drivers and station and clerical employees exclu-
sive of executives and supervisors, nor a majority of the station and
clerical employees exclusive of executives and supervisors, desired to
have the Amalgamated act as their bargaining agent.
On March 10, 1939, the Board, as stated above, found upon the
entire record in the Representation Proceedings that the respondent's
bus drivers constituted an appropriate bargaining unit; and found
and certified that the Brotherhood had been designated by a majority
of these employees as their collective bargaining representative and
that pursuant to Section 9 (a), the Brotherhood was the statutory
representative of all these employees for collective bargaining. The
Board dismissed the petition of the Amalgamated for an investiga-
tion and certification of representatives.
The Trial Examiner by various rulings at the hearing herein held
that an attack made by the respondent and the intervenor in tlee in-
stant case upon the validity of the determinations, findings, conclu-
sions, and certification of the Board in the Representation Proceed-
ings was inappropriate; that it involved matters which the parties
in the instant case as interested parties to the Representation Pro-
ceedings either already had presented to the Board and had had
determined, or which they could have submitted to the Board for
consideration; that if reexamination of matters considered and deter-
mined in the Representation Proceedings was desired the proper
forum was the United States Circuit Court of Appeals in a proceed-
ing on petition for the review of such order as the Board might issue
herein. As already indicated, the Trial Examiner struck from the
respondent's answer allegations raising these matters, and refused
to admit into evidence the entire record of the Representation Pro-
ceedings, as well as particular portions thereof, and other proof
which the respondent and the intervenor offered as a basis for their
attack. These parties contend that they thereby were deprived of
a fair hearing by the Board on material issues.
This contention rests on a misapprehension of the legal effect which
the determinations, findings, and conclusions of the Board in a rep-
resentation proceeding under Section 9 (c) of the Act,35 and of the
certification based thereon, have upon issues in a subsequent complaint
proceeding under Section 10 (b) and (c) where it is charged that the
employer contrary to Section 8 (5) has refused to bargain collec-
tively with the certified collective bargaining representative of his
employees under Section 9 (a). Upon the filing of a petition re-
questing an investigation and certification of representatives, the
Board in pursuance of the Act provides "for an appropriate hear-
ing," 36 upon due notice to all parties in interest, including the em-
85 See footnote 20, supra.
84 Section 9 (c) of the Act.
124 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
ployer or employers' whose employees are involved 'as well as labor
organizations claiming to represent such employees for collective bar-
gaining -purposes. At such hearing full opportunity is afforded these
parties to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon all matters and issues relevant to a
determination by the Board of the ultimate question regarding rep-
resentation with which the proceeding is concerned.37 Incidental to
such a hearing the Board may "take a secret ballot" of the employees
to ascertain their choice of collective bargaining representative.
Upon hearing being had, the Board' issues its decision, which there-
after it may .amend or supplement, wherein it makes its determina-
tions, findings, and conclusions with respect to jurisdiction of the
Board over the parties and the subject matter, and with respect to
the various issues of fact and law in' controversy, a resolution of
whi4 is essential to a decision of the ultimate question concerning
representation involved. The determination of this question, viz,
the existence and identity of a collective bargaining representative
within the meaning of Section 9 (a) of the Act, is contained in the
certification of representatives issued by the Board, provided such
a representative is found. Where none has been found the petition
is dismissed.
While the determinations, findings, conclusions, and certification
of the Board in a representation proceeding are not res juclicata in
a subsequent complaint proceeding before the Board under Section
10 (b) and (c), we think it both the intent of the statute and a sound
administrative practice that parties in interest to such representa-
tion proceeding cannot try and have heard de novo in the subsequent
complaint proceeding questions or matters adjudicated in the previ-
ous proceeding in the absence of cogent showing of possible error in
such prior proceeding. Although the Board in the exercise of its
discretion and upon sufficient ground may reexamine such questions
or matters, nevertheless it is entitled to treat as administratively de-
cided all such determinations, findings, conclusions, and certification.
This does not mean that parties in the complaint proceeding are
deprived of a fair hearing before the Board on material issues. That
already has been afforded them in the representation proceeding.
Moreover, they are privileged to appeal to the discretion of the Board
as above indicated. Nor are they thereby deprived of a judicial re-
view of matters found' and determined in the representation proceed-
ing.' Upon proceedings in the United States Circuit Court of
Appeals on' petition to 'review the order of the Board made in the
, 8'' The wide latitude such a hearing possibly may take is illustrated by the nature and
number of issues with which the parties herein themselves were concerned and which were
considered and decided by the Board in the Representation Proceedings.
PACIFIC GREYHOUND LINES 125
complaint proceeding, they may bring before that court as part of
the record on review the entire record and certification in the repre-
sentation proceeding, and where, as in the Representation Proceed-
ings here, determinations and findings of the Board rest in part upon
findings previously made in another representation proceeding in-
volving such parties,38 the record in the previous representation case
to the extent relevant likewise becomes available for judicial review
as part of the record on review.39 It is unimportant that proceedings
under Section 9 (c) do not result in a command to anyone. Adminis-
trative determinations may and often do have legal consequences even
though they do not command.40 Here, the respondent and the inter-
venor by their attempt to introduce into the instant case the record of
the Representation Proceedings sought to have the Board reexamine
the entire proceeding there had. No persuasive showing is made for
such a general reexamination. We sustain the Trial Examiner's
ruling in this respect.
We think it equally within the statutory intent and sound admin-
istrative practice that parties in interest to a representation proceed-
ing cannot in a subsequent complaint proceeding require the Board to
withhold presumptive effect from its previous determinations, find-
ings, conclusions, and certification, on the ground that the Board in
the representation proceeding failed to consider matters or evidence
which the parties there could have presented but which they failed
to do without apparent reasonable cause. In the instant case the
parties had their opportunity to be heard by the Board with 'regard
to such matters in the Representation Proceedings, and the fact
that they did not avail themselves thereof does not entitle them as
a matter of right to a second opportunity. While it may be, that
their action has foreclosed judicial review of such matters, that con-
sequence is attributable to the parties themselves.41
The respondent and the intervenor in the instant case do not con-
fine their argument respecting the asserted invalidity of the determi-
nations, findings, conclusions, and certification to the contention that
the Trial Examiner denied them an opportunity to have reexamined
and heard generally matters involved in the Representation Proceed-
ings or matters upon which a hearing there could have been had.
By addressing themselves to the decision of the Board in those pro-
ceedings 42 and by relying upon specific evidence, proffered but re=
38 See Section 9 (d) of the Act.
39 9 N. L. R. B 557. Further consideration of this question is given below
4°American Federation of Labor, et at. V. N. L. R. B, 308 U. S. 401, aff'g 103 F (2d.)
933 (C App. D. C.), enf'g Matter of Shipowners ' Association of the Pacific Coast, et at.
and International Longshoremen's and til'arehousemen's Union, District No 1;_7 N. L. R B.
1002.
41 Matter of Pittsburgh Plate Glass Company and , Federation of Flat Glass Workers of
America, affiliated with C. I. 0., 15 N. L. R. B.'515.
42 9 N. L. R. B. 557.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jetted, other than the record as a whole in the Representation Pro-
ceedings, they present in their argument herein what apparently
amounts to substantially their entire positions, respectively. In view
of the respondent's determination, as more particularly set forth
below, to withhold recognition from the Brotherhood as sole bar-
gaining representative of its bus drivers, irrespective of the fact
that these employees in an election under Government auspices chose
the Brotherhood to represent them, we deem it of some importance to
express our views further as to reasons for adhering to our previous
determinations, findings, conclusions, and the certification.
The respondent contends that the provisions of the Act relating
to representation proceedings, especially Section 9 (b) and (c), are
unconstitutional as improper delegations of legislative poweli to an
administrative agency, and, therefore, the certification as well as the
determinations, findings, and conclusions upon which certification
rested in the Representation Proceedings, was without legal warrant.
Neither the intervenor nor the Brotherhood join in this contention.
We believe that the pertinent provisions and declared purposes and
policy of the Act amply demonstrate that the lawful limits of dele-
gable administrative powers and functions were not in this instance
transcended by the Congress. The respondent further argues that
the Board, in predicating its supplemental finding of fact and con-
clusion of law in the Representation Proceedings,43 to the effect that
the respondent's bus drivers constitute an appropriate bargaining
unit, upon the desires of these and other employees for representation
as manifested in the elections, unconstitutionally delegated to such
employees its statutory power to determine a representative, and,
therefore, the certification, determinations, findings, and conclusions
were invalid. This argument, however, not only misapprehends the
doctrine of unconstitutional delegation of governmental powers but
erroneously assumes that delegation of any character ink fact occurred.44
The respondent asserts further with respect to the matter of the
appropriate bargaining unit that the Board's determination thereof
in the Representation Proceedings was improper, because the Board in
a previous representation proceeding already had found that "the bus
drivers [of the respondent] alone do not constitute an appropriate
unit but are to be merged in a larger unit." 45 This prior finding was
made in a Supplemental Decision and Order of the Board issued in
- 11 N. L. R. B. 1070 , 1073, 1074.
's See International Associatson of Machinists, Tool and Die Makers, Lodge No. 35, afl-
iated with the International Association of Machinists and Production Lodge No. 1200,
affiliated with the International Association of Machinists v. National Labor Relations
Board, 110 F . ( 2d) 29 (C. App. D. C.), enf'g Matter of Serrick Corporation and Inter
national Union Automobile Workers of America , Local No. 459, 8 N. L. R . B. 621.
45 Supplemental Decision and• Order , Matter of Pacific Greyhound Lines and Brotherhood
of Locomotive Firemen and Engmemen, 6 N. L R. B. 163.
PACIFIC GREYHOUND LINES 127
certain proceedings theretofore had before the Board in which both the
Amalgamated and the respondent were parties, Matter of Pacific Grey-
hound Lines and Brotherhood of Locomotive Firemen and Enginemen,
Case No. R-195, herein called Case No. R-195.4° The respondent
argues that the prior finding was res judicata upon the issue of appro-
priate bargaining unit in the Representation Proceedings. We fully
considered this point in our decision 47 in the Representation Proceed-
ings and find nothing in the respondent's argument here presented
persuasive of a view different from that there expressed. For reasons
there stated, we conclude that the doctrine of res judicata is
inapplicable.
The respondent insists that even if the doctrine of res judicata is
inapplicable the Board under the circumstances involved should have
adhered to its prior finding, and that its failure to do so was an arbi-
trary exercise of administrative discretion. The respondent alleges
that it had and has a direct interest in the prior finding in that a single
bargaining unit comprehending all its employees including bus drivers
would be to its business advantage, that such a unit obviates "dis-
ruptions" by employees in smaller units, and that its employees' in-
terests also would be subserved. However, a determination in any
case of the appropriate bargaining unit is concerned not so much with
the employer's advantage but, under the Act, with the unit which "will
insure to employees the full benefit of their right to self-organization
and to collective bargaining, and otherwise effectuate the policies" of
the Act. The respondent also states in support of its contention that
the departure from the prior finding was arbitrary, that on April 15,
1938, prior to the filing of the petitions in the Representation Proceed-
ings, the respondent and the Amalgamated, Division No. 1114, exe-
cuted, as the Board in the decision there found '411 the Master
Agreement, as supplemented, stipulating that the respondent's bus
drivers and likewise its station and clerical employees should become .
members of that organization by May 15, 4938, as a condition of em-
ployment, and providing for wages, hours of service, and other working
conditions of the employees covered by said closed-shop stipulation.
The respondent urges that it made the contract in reliance, among
other things, upon the prior finding, that, the bus drivers did not con-
stitute alone an appropriate unit; that the finding and conclusion in
the Representation Proceedings that they did, would and will result,
if the respondent be under duty to bargain collectively with the
Brotherhood as the certified representative, in a breach of the contract
46 This case is referred to by similar description in the decision in the Representation
Proceedings . See footnote 13, supra.
47 9 N. L . R. B 557, 573-574.
48 9 N. L. R. B. 557.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of April 15, 1938; and, therefore, the Board in the Representation
Proceedings, to avoid such a result, should have adhered to the prior
finding. However, this proposition, apart from its assumptions re-
garding breach of contract whose tenability we consider hereinafter,
actually is concerned not so much with whether a prior finding of ap-
propriate bargaining unit should generally be followed by the Board in
a representation proceeding where such unit is embodied in the terms
of a current collective contract, but with whether the Board in the Rep-
resentation Proceedings, for the reasons expressly there stated in the
decision, and in view of all the circumstances, acted arbitrarily in
holding the contract of April 15, 1938, no bar to the exercise of the
Board's authority under Section 9 (c) to investigate the question con-
cerning representation which the petitions of the Amalgamated and
the Brotherhood had raised. The doubtful status which the Amalgam-
ated and its Division occupied on April 15, 1938, as a freely chosen
bargaining representative, and the termination provision of the con-
tract of April 15, 1938, there discussed and further considered below,
indicate that the Board in directing the elections engaged in no
arbitrary exercise of its statutory power.
However, the respondent and to some extent the intervenor ques-
tion generally on grounds of improper exercise of administrative
discretion and otherwise the propriety of the Board's determination
in the Representation Proceedings that the contract of April 15, 1938,
was not decisive of the intervenor's claim to exclusive representation
of the respondent's bus drivers and other employees. It is contended
that the Board in the exercise of a sound administrative discretion
should have held that the contract precluded any investigation and
determination of the question whether the Brotherhood or the Amal-
gamated and its 'Division was the statutory representative of the
respondent's bus drivers, and whether the Amalgamated and its Di-
vision was the exclusive bargaining representative of the station and
clerical employees.
As stated in the Decision and Direction of Elections '0 in the Rep-
resentation Proceedings, on December 16, 1937, prior to the insti-
tution of those proceedings, the Board in Case No. R-195 issued a
Decision and Direction of Election 50 wherein it found in considering
various issues before it that the respondent during the period com-
mencing about April 14, 1937, and continuing thereafter, by various
acts assisted the Amalgamated in its organizational activities among
the employees of the respondent and discouraged membership in a
competing labor, organization known as Brotherhood of Locomotive
99 9 N L. R. B 557.
60 4 N. L. R. B 520.
PACIFIC GREYHOUND LINES 121
Firemen and Enginemen ; that the respondent on April 21 , 1937, made
a contract with the Amalgamated , Division No. 1114, as the bargain-
ing representative of all employees except those represented by other
affiliates of the American Federation of Labor although the Amal-
gamated neither claimed to represent nor actually did then represent
a majority of said employees ; 51 that in view of the respondent's,
encouragement of membership in the Amalgamated , as aforesaid, that
organization , and accordingly Division No. 1114, did not constitute
an unfettered choice of bargaining representative of the employees
purported to be represented ; that because the effects of such employer
assistance were existent on September 7, 1937, when the respondent
and the Amalgamated , Division No. 1114, first executed the Master
Agreement , the Amalgamated , and accordingly its Division , was not
at that time a freely chosen representative of the employees pur-
ported to be represented even though written approval of the terms
of the contract may have been obtained from a majority of them.52
Approximately 6 months after the issuance of this decision the Amal-
gamated filed in the Regional Office the petition for investigation
and certification of representatives which instituted the Representa-
tion Proceedings . In the notice of a consolidated hearing to be held
upon that petition and upon a similar petition filed by the Brother-
hood, the Board notified all parties to the proceedings that "evidence
will be received on the matter of whether the encouragement of mem-
bership in Amalgamated Association of Street , Electric Railway and
Motor Coach Employees of America . . . found . . . to have
been committed by Pacific Greyhound Lines ( in Case No . R-195,
December 16, 1937, . . . ) or the effects thereof, has continued down
to and including the present time ..." Prior to the filing by the
Amalgamated of its petition and 4 months after the above -mentioned
decision in Case No . R-195, the respondent and the Amalgamated,
Division No. 1114, executed the contract of April 15 , 1938, here in-
volved. Therein , as heretofore mentioned , the parties reexecuted the
Master Agreement first executed on September 7, 1937 , and declared
it "to be and to have been valid, and subsisting and enforceable at
all times" ; accorded the intervenor 53 recognition as the sole collective
61 Such a contract contravened Section 9 ( a) and Section 8 (1) of the Act See N L
R B v. Jones cF Laughlin Steel Corporation , 301 U. S 1, 44, 45
0 The Board in Case No R-195 directed an election solely among the bus drivers of the
respondent , 4 N L. R B 520, 540 In the Supplemental Decision and Order issued in that
case on March 25, 1938, 6 N L It. B 163, the Board found that Brotherhood of Locomo.
tive Fn emen and Enginemen did not represent a majority of the respondent 's employees in,
an appropriate bargaining unit and dismissed the petition. See the Decision and Direction.
of Elections in the Representation Proceedings, 9 N L R. B 557, 564-565 , for a discussion
concerning the results of the election in Case No. R-195
53 See footnote 4, supra. See 9 N. L. R B 557, 568 . .
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative of the respondent's bus drivers, and station
and clerical employees, and provided for a closed shop in favor of the
intervenor 51 covering bus drivers, and station and clerical employees.
The Board held in the Representation Proceedings that the contract
of April 15, 1938, did not preclude a determination either "of the
question concerning representation," or "of the question of appro-
priate unit." 55 Two reasons were stated. In respect to the first
the Board said : 56
In Case No. R-195 this Board found, as above set forth, that the
Amalgamated at the time of the execution of the initial contract on
April 21, and the Master Agreement on September 7, 1937, was
not, because of assistance by the Company, the freely chosen
representative of the employees purported to be represented. In
the record before us there is no showing that at any time since
September 7 the effects of this assistance were removed or dis-
sipated. Indeed, after the issuance of the Decision and Direc-
tion of Election on December 16, 1937, instead of steps being
taken to establish conditions for the exercise of a free choice
of representative by the employees, the relations between the
Company and the Amalgamated continued as theretofore. The
maintained recognition accorded Division No. 1114 in the succes-
sive contracts of April 21 and of September 7, 1937, and the
declaration on the part of the Company in the Supplemental
Agreement of September 7 of a willingness to grant the Amal-
gamated a closed shop and check-off, alone would tend, in the
absence of remedial action by the Company or otherwise, to
perpetuate until April 15, if not beyond then, the influences
originally engendered by the Company's conduct. In this cir-
cumstance we are not satisfied that the effects of the Company's
assistance did not continue after September 7 and were not ex-
istent on April 15 when the execution of the Master Agreement
was reaffirmed and the closed-shop addendum executed.
We accordingly cannot find, on the record presented, that on
April 15, 1938, when the execution of the Master Agreement was
reaffirmed and the closed-shop addendum executed, the Amalga-
mated and Division No. 1114 were the freely chosen represent-
ative of a majority of the Company's employees, excluding
members of other American Federation of Labor affiliates.
^ Necessarily , a provision requiring membership in the Division meant membership in
Amalgamated of which the Division was a part
sa 9 N. L. R. B. 557, 570, 574.
50 9 N. L. R. B. 557, 569, 570.
PACIFIC GREYHOUND LINES 131
Because of the doubtful status of the intervenor on April 15, 1938,
as a freely chosen representative purged of the effects of the unlawful
employer assistance previously rendered to it, the Board, on the
basis of policy and as a matter of administrative discretion, did not
consider the contract executed on that date ground for it not pro-
ceeding to an investigation and determination of representatives.57
The Board also held 68 that because of a provision in the contract
of April 15, 1938, for automatic renewal thereof unless either party
thereto gave the other notice of termination, the resultant instability
of contractual obligation at the time the Representation Proceedings
67 The Board in furtherance of the policy of the Act to attain stabilized labor relations
in industry through collective bargaining agreements has as a matter of administrative
discretion not proceeded under Section 9 (c), when it has appeared that there was then
outstanding a valid collective agreement between the employer and a lawful statutory rep-
resentative of his employees providing for recognition of the representative as sole bargain-'
ing representative of the employees , and no other circumstance which would indicate that
the policy would not be furthered . The members of the Board have not been in entire
agreement as to the length of time to be fixed for such stay . See Matter of The National
Sugar Refining Company of New Jersey, L. I. City Refinery and Local 11,76, Sugar Refinery
Workers. International Longshoremen 's Ass 'n., 10 N L. R B . 1410; Matter of Superior
Electrical Products Co. and Metal Polishers, Buffers, Platers and Helpers International
Union Local No. 13, 6 N. L. R . B. 19 , Matter of American Hair it Felt Company and Jute,
Hair it Felt Workers Local # 163 (United Furniture Workers of America, CIO ), 15 N L.
R B. 572 , Bon Ton Curtain Company and American Federation of Labor, Federal Union,
20 N L R B. 462 However , where the mentioned policy of the Act would not be fur-
thered , the Board has proceeded with an investigation and determination of representatives
despite the outstanding exclusive recognition collective agreement - Matter of Colonic Fibre
Company, Inc and Cohoes Knit Goods Workers Union No. 21511,, A. F. of L., 9 N L. R. B.
658, 660; Matter of Showers Brothers Company, Inc . and National Furniture Workers
Local No 1, of the Upholsterers International Union of North America, A f iliated with the
American Federation of Labor, 13 N. L R. B . 829; Matter of J. Edwards it Co. and United
Shoe Workers of Amei ica, Local 127. C I 0 , 20 N L R B . 244 (wbete the agreement
was made or renewed by the employer after formal notice of the claim of a rival labor
organization to exclusive recognition) ; Matter of Southern Chemical Cotton Company and
Textile Workers Organizinq Committee , 3 N. L R B . 869, Matter of American -West African
Line, Inc and National Marine Engineers ' Beneficial Association, 4 N. L It. B 1086 (where
doubt existed whether the union which obtained the agreement represented a majority of
employees when the contract was signed ) ; Matter of Pacific Greyhound Lines and Brother-
hood of Locomotive Firemen and Enginemen, 4 N. L R B 520 ( where contracting union
was found not to have represented a free choice of a majority of the employees when the
contract was signed ) ; Matter of Union Premier Food Stores , Inc, a Pennsylvania Corpo-
ration, et al. and United Retail & Wholesale Employees of America, Affiliated with the Con,
gress of Industrial Organizations , 11 N. L. R B 270 , 277; Matter of California Wool
Scouring Company and Textile Workers Organizing Committee, 5 N. L R. B. 782, 785
(where contract was made or renewed after the filing of petition for investigation and cer-
tification of representatives ) ; Matter of Quality Furniture Mfg Co. and United Furniture
Workers of America Local 576, C. I. 0., 8 N. L. R. B 850 , 853; Matter of Martin Bros Boa
Company and Toledo Industrial Union Council , 7 N L. R. B . 88, 91 ( where the agreement
was about to expire or be renewed ) ; Matter of Wickwire Spencer Steel Company and Fed-
erated Industrial Union , 18 N L R. B . 372 (where the contract provided for termina-
tion upon certification of a new bargaining representative by the Board ). The issue
whether proceedings under Section 9 '(c) should be stayed has not been affected by the fact
that the contract granting exclusive recognition also contains a provision for a closed
shop. ( See cases above cited.)
- 9 N. L . R. B. 557, 570
132 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
were begun '59 constituted a second reason for the Board not staying
the investigation.80
The respondent and the intervenor assert that the proceedings in
Case No. R-195 and in the Representation Proceedings were of
restricted character, so limited by the Act and the issues made, and
that the Board went beyond the proper scope of inquiry in those
cases by its findings regarding illegal employer assistance to the
Amalgamated and its Division, the incapacity of that organization
to act as a freely chosen'bargaining representative for the respond-
ent's employees, and the doubt in that respect which existed concern-
ing that organization's status as an unfettered bargaining repre-
sentative on April 15, 1938. Hence, it is stated, "the purported con-
clusions of the Board [in the Representation Proceedings] that the
existing contracts bet-Ween respondent and Amalgamated are to be
disregarded because in some way induced by unfair labor practices
of respondent, necessarily fall to the ground and, as a corollary, the
contracts necessarily survive and control the situation." 61 This posi-
tion misconceives the proper scope of proceedings brought under
Section 9 (c) of the Act. It also misapprehends the basis of the
Board's determination that the contracts did not bar the elections.
Section 9 (c) authorizes the Board "whenever a question affecting
commerce arises concerning representation of employees" for collec-
tive bargaining, to investigate such controversy, making provision
in that connection for "an appropriate hearing on due notice;" and
to certify to the interested parties the name of any statutory repre-
sentative selected by the employees involved.62 Plainly such proceed-
0 See footnote 57, supra.
eo In respect to the- determination of representatives , the Board was of the opinion that
the circumstances did not necessitate postponing beyond the date fixed in the Direction of
Elections the taking of a secret ballot among the respondent' s employees to ascertain their
choice of bargaining representative. It deteimined that the Amalgamated properly could
compete with the Brotherhood in an election " under conditions removed from any sugges-
tion or suspicion of coercion ," and where either the Amalgamated or the Brotherhood could
establish itself a majority representative with all the rights of exclusive representation
conferred by the Act upon such representative Board Member Edwin S Smith , in a sepa-
rate opinion, dissented from this determination , 9 N. L. R. B 557, 577. Cf. Matter of
Pilot Radio Corporation and United Electrical it Radio Workers of America , C. 1. 0., 14
N L 12 B. 1084, where the Board upon finding a local of a national labor organization
had been assisted in its organization activities by the employer, postponed an election in
which such local was to appear on the ballot until the employees could "consider and de-
termine free from any and all employer compulsion , restraints and interference," what
labor organization they wished to represent them. Cf N. L. R. B. v. The Falk Corpora-
tion, 308 U. S. 453 , aff'g 102 F . ( 2d) 383 (C. C. A. 7), enf'g Matter of The Falk
Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North
America, 'Lodge 1528, 1 6 N. L. R . B 654, where the Supreme Court held, that a, company-
created union "which could not emancipate itself from habitual subservience to its creator"
properly could be kept off the ballot in an election directed under Section 9 (c).
ii The respondent 's brief.
M Certification under the Act is of the exclusive bargaining representative contemplated
in Section 9 (a) and ( b). Such representative is entitled to performance of the employer's
duty under Section 8 (5), and represents all employees irrespective of whether a minority
of employees in the appropriate unit have designated another bargaining agency to repre-
sent them.
PACIFIC GREYHOUND LINES 133
ings contemplate inquiry into and hearing upon all matters neces-
sary and relevant to an investigation of the controversy concerning
representation which is presented and to a determination of the statu-
tory representative. We need not decide in the instant case to what
extent it is proper in cases originating under Section 9 (c) for the
Board generally to consider matters affecting the propriety of a
particular labor organization acting as a bargaining representative.
Nor do we decide whether the Board in all such cases is authorized
to consider whether a particular labor organization has been assisted
by employer action, defined as an unfair labor practice in Section
8 (1) of the Act, or has been dominated and interfered with by
employer action defined as an unfair labor practice in Section 8 (2),
in the absence of a prior determination to that effect under Section
10 (c). Here, the Amalgamated in Case No. R-195, and both the
Amalgamated and the respondent in the Representation Proceedings,
contended that the various contracts between the respondent and the
Amalgamated, Division No. 1114, should be taken as resolving the
questions concerning representation which the Board in those pro-
ceedings was petitioned to investigate.63 The Board in considering
this contention did not decide the broader question whether it would
be an unreasonable exercise of its power under Section 9 (c), or
inimical to the purposes and policy of the Act, for the Board to
proceed with an investigation and determination of representatives
where an employer and a union whose membership has not been
induced by any action defined as an unfair labor practice or as to
whom no doubt in that regard exists, have made a collective contract
for a reasonable term extending recognition to the union as exclusive
bargaining representative, or providing for a closed shop in its
favor.64 The Board merely held that its exercise of plenary authority
under Section 9 (c) and related subdivisions of Section 9, to investi-
gate a controversy affecting commerce concerning representation and
to determine the existence of a statutory representative, should, not be
stayed by considerations of contractual relations under an exclusive
recognition or closed-shop contract if such contract was made with ,
a union which because of illegal employer action did not constitute
a freely chosen representative or because of such action doubt existed
at the time of the making of the contract whether it did constitute
such a representative.65 In the Representation Proceedings a sharp
controversy existed between the Amalgamated and the Brotherhood
regarding which of the two unions was designated collective bargain-
ing representative by the bus drivers, and the Board in the exercise
- 4 N. L R. B. 520, 525 ; 9 N. L. It. B. 557 , 568, 574.
64 See footnote 57, supra
65 As already stated, the Board also reached this conclusion in view of the termination
clause of the contract.
283033-41-vol 22-10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its discretion and in view of the purposes and policy of the Act
determined that the contract of April 15, 1938, because of the doubtful
status of the intervenor when the contract was made resultant from
the respondent's prior assistance, among other circumstances, would
not warrant the Board staying the proceedings. Manifestly the mat-
ter of the respondent's assistance to the Amalgamated and its Divi-
sion, and the question whether and to what extent that organization
had rid itself of the effects of such assistance were in issue in Case
No. R-195 and in the Representation Proceedings, respectively es
The further argument of the respondent and intervenor that unfair
labor practices cannot be tried in representation proceedings but can
only be heard in proceedings under Section 10 (c) upon a charge and
complaint, is beside the point. Neither Case No. R-195 nor the Rep-
resentation Proceedings were concerned with charges of unfair labor
practices, as such.
The respondent contends that the contract of April 15, 1938, never-
theless should have been held ground for the Board refraining from
proceeding with the investigation and certification in the Representa-
tion Proceedings, for the reason, as shown by evidence offered but re-
jected at the hearing, that the respondent and the Amalgamated, Divi-
sion No. 1114, in executing the contract relied upon determinations and
proceedings in Case No. R-195, upon oral statements of the Regional
Director that the parties could make a closed-shop agreement which
would have the Regional Director's acquiescence and approval, and
e6 The parties to those proceedings were given notice of such issues prior to the hearings.
In Case No 8.195, the petition which accompanied the notice and to which the notice
referred stated :
Any other facts which petitioner considers relevant "` • ^. The so-called
"Amalgamated" does not have nor never has had the membership or authorization
of a majority of the drivers on the Pacific Greyhound Lines for collective bargain-
ing or any other purpose.
The undersigned hereby alleges that a question has arisen concerning the repre-
sentation of the employees in the above bargaining unit, in that : The Pacific Grey-
hound Management on Apr. 21, 1937, arbitrarily announced its recognition of the
"Amalgamated " as the bargaining agency for the combined group of drivers and
clerks employed by the P. G Lines, although the "Amalgamated" did not have such
authority from a majority of either such class of employees , and further such a com-
bination does not constitute a proper bargaining unit under the N. L. R. A. (See
also attached memorandum covering this subject )
In the Representation Proceedings, the notice of hearing stated :
You are further notified that at such time and place testimony or other evidence
will be received on the matter of whether the encouragement of membership in
Amalgamated Association of Street, Electric Railway and Motor Coach Employees
of America , or any other labor organization, or the discouragement of membership
in Brotherhood of Locomotive Firemen and Enginemen , or any other labor organi-
zation, found by the National Labor Relations Board to have been committed by
Pacific Greyhound Lines ( in Case No. R-195, December 16, 1937, 4 N . L. R. B. 72),
or the effects thereof, has continued down to and including the present time, and on
the matter of whether Pacific Greyhound Lines has established , maintained or as-
sisted, by any action defined in the National Labor Relations Act as an unfair labor
practice , any labor organization of its employees.
PACIFIC GREYHOUND LINES 135
upon the fact that a majority of the respondent's employees were then
members of the intervenor. We do not deem such reliance material
to the issue whether the Board was precluded by the contract from
ascertaining in the Representation Proceedings if the Brotherhood
or the Amalgamated was the exclusive bargaining representative.
One of the matters in Case No. R-195 to which reference is made,
the placing of the name of the Amalgamated on the ballot, was not
ground for the respondent to conclude that that labor organization
then constituted a free choice:67 Under the terms governing the elec-
tion in Case No. R-195 the Amalgamated could not have established
itself as a statutory representative.68 Moreover, the decision which
there accompanied the direction of election made findings which were
ample caution to the respondent and the Amalgamated that they
could not make an exclusive recognition or closed-shop agreement
4 months later which would warrant any stay of proceedings under
Section 9 (c), unless all doubt of the status of the intervenor as an
unfettered choice of representative had been removed:09 With respect
to the alleged statements of the Regional Director these statements,
if made, could acquire no such decisional finality in the Representa-
tion Proceedings as the respondent would attribute to them. And,
the mere fact that a majority of the employees were members of the
intervenor when the contract was signed did not constitute a sufficient
basis for the respondent to assume under the circumstances involved
that the Union then constituted a free choice.
The respondent and the intervenor also contend that the Board in
the Representation Proceedings could not find that the respondent
had previously assisted the Amalgamated and its Division, for the
reason that no evidence on that matter was there adduced. We be-
lieve that the Board in its administration of the Act properly may
treat as administratively determined facts which it has found re-
specting matters in issue in a prior proceeding before the Board to
which the interested parties were also parties and afforded an op-
portunity to be heard 70 But, the respondent and the intervenor
then say, if reliance on the prior findings was appropriate the de-
cision in the Representation Proceedings improperly subjected them
to the burden of establishing that the Amalgamated and its Division
was on, April 15, 1938, a freely chosen bargaining representative.
However, whether or not a rule of burden of proof was involved, the
decision on this branch of the case rested in part on an administrative
principle that an exclusive recognition or closed-shop collective con-
e' 4 N. L. R . B. 520.
8 4 N. L. R. B. 520. See footnote 52 supra.
° 4 N. L. R. B. 520.
7° As heretofore stated , If the prior proceeding is a representation proceeding , judicial
review of the finding subsequently relied upon may be had as part of the review of the
proceeding in which reliance was placed.
136 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
tract does not warrant a stay of an investigation and determination
of the question concerning representation if the circumstances estab-
lish a doubt regarding the status of the contracting union as a freely
chosen representative at the time the contract was made.
We hold that the determinations, findings, conclusions, and certifi-
cation in the Representation Proceedings were not, nor were any of
them, invalid, as the respondent and the intervenor contend. Upon
those determinations, findings, conclusions, and certification, we find
that on March 10, 1938, the bus drivers of the respondent constituted
a unit appropriate for the purposes of collective bargaining and that
said unit insured to employees of the respondent the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuated the polices of the Act. We also find that on
said date the Brotherhood was designated and selected by a majority
of the bus drivers of the -respondent as their representative for the
purposes of collective bargaining, and that, pursuant to the provisions
of Section 9 (a) of the Act, the Brotherhood was the exclusive repre-
sentative of all such bus drivers for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
The respondent and the intervenor claim that subsequent to certifi-
cation of the Brotherhood, as well as at the time of the hearing, a
majority of the respondent's bus drivers were dues-paying members
of the intervenor and had designated it their collective bargaining
representative. Documentary proof was offered at the hearing, which
the Trial Examiner rejected on the grounds of immateriality, for
the purpose of showing that in the first week of May 1939 the Amal-
gamated, Division No. 1114, increased its membership by approxi-
mately 100 bus-driver employees of the respondent and that in
consequence thereof the intervenor became the designated represent-
ative of a majority of these employees.71 Proof also was offered to
show that at the time of the hearing "more than a majority of bus
drivers" employed by the respondent were members of the intervenor
and designated it their collective bargaining representative.
We are of the opinion that the tendered showing was properly
excluded from the record. As a determination of exclusive repre-
sentation the certificate may be relied upon and is not subject to
nullification or challenge by the parties so long as the certified repre-
Tl The intervenor in its brief claims that its proffered proof "would have shown that
at the time of refusal to bargain it represented . . . a majority of Respondent's bus
drivers " As hereinafter set forth the respondent on April 25 , 1939, refused previous
requests of the Brotherhood for collective bargaining However, the documentary proof
offered but rejected would show that between the time of certification and April 30, 1939,
a majority of the respondent ' s , bus .driverswere not duds -paying. members oftthe intervenor;
that on April X30, 1939, only 190 of the 67R bus idriuers employed rin April were such
members. .
PACIFIC GREYHOUND LINES 137
sentative is ready and willing to bargain collectively and to establish
•contractual relations with the employer in behalf of those repre-
sented, and a reasonable period for it to do so has not elapsed.
.Stability of industrial relations and effectuation of the purposes and
policy of the Act impel a construction of Section 9, (c) which would
:secure the authority of the certified representative to act for a rea-
sonable period.72 Here only 3 months intervened between the issuance
.of the certification and the filing of the complaint and, as found
below, at no time did the respondent recognize or bargain collectively
with the Brotherhood although repeatedly requested to do so. Thus,
not only had a reasonable period for the Brotherhood to act not
'expired at the time the certification was challenged by the respondent,
but because of the respondent's unlawful conduct the bus drivers
have been thwarted from the very outset in obtaining representation
through the agency they selected for that purpose in the election.
Under these circumstances, proof of a subsequent designation of a
representative by a majority of the respondent's bus drivers, other
than the one selected when full freedom of choice was theirs, is
immaterial. This evidence does not establish incapacity of the
Brotherhood to act either at the time the certification was challenged,
at any time since, or in the future until the employees have had a
reasonable opportunity to act through the Brotherhood. In the in-
72 In Matter of Wh i ther Mills Company and Silver Lake Company and Textile Workers
Organizing Committee, 15 N. L R B 457, the Board held that the employer could not
upon the facts presented challenge the force of a certification 7 months after issuance,
-saying :
To hold that , 7 months following certification by the Board of a collective
bargaining representative , the employer can question with impunity the status of
the certified representative as a representative of a majority of the employees in
the appropriate unit , in the manner the respondents here attempt to do, would be
to render such a certification nugatory . The Congress cannot have intended by
Section 9 ( c) of the Act to authorize the Board to do a futile and meaningless
thing . To prevent employers fiom thus flouting the Act, to give meaning to
the Board ' s authority to certify representatives designated by employees in appro-
priate units , to effectuate the policies of the Act, the presumption of the continuing
effectiveness of such a certification by the Board must be held not to be rebuttable,
under the circumstances here presented , by evidence such as that here introduced
by the respondents.
In Matte) of Clark Shoe Company and United Shoe Woikeis of America, 17 N L R B.
1079 , the Board held upon the facts considered that a certification could not be challenged
by the employer 4 months after issuance ' The Board said:
The fruition of collective bargaining in an agreement often requires negotiations
lasting several months It is therefore essential to the effectuation of the policies
of the Act that the representative status , once established , be vested with a
degree of stability . Thus, in a recent case , we held that a refusal to bargain with
representatives 7 months after their certification by the Board can not be justified
by challenging their authority to deal for a-majority No reason appears why a
different rule should be applied in the instant case. The authority of the U. S. W.
as sole bargaining agent was established in a consent election under the aegis of
the Board The fairness of the election is not questioned . Promptly after the
election the U. S. W. opened negotiations for a contract . To permit the respondent
with impunity to interrupt the bargaining process and evade agreement by chal-
lenging the authority of the U. S. W. only 4 months after its designation in the
election would be to render meaningless the respondent ' s duty and its employees'
correlative right to bargain collectively.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stant case, any other rule would result in employees being required
to turn from representative to representative until some bargaining
agency satisfactory to the employer was found.
Accordingly, we find that at all times since March 10, 1939, the
bus drivers of the respondent constituted and constitute a unit ap-
propriate for the purposes of collective bargaining and that said unit
insured and insures to employees of the respondent full benefit of
their right to self-organization and to collective bargaining and other-
wise effectuates the policies of the Act. We also find that the Brother-
hood, pursuant to the provisions of Section 9 (a) of the Act, was at
all times since March 10, 1939, and is the exclusive collective bargaining
representative of all bus drivers employed by the respondent, with
authority to bargain collectively in their behalf in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
B. The refusal of the respondent to bargain collectively with the
Brotherhood
On March 14, 1939, and repeatedly thereafter, the Brotherhood
requested the respondent to bargain collectively in respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, with the Brotherhood, as the exclusive representative of all
bus drivers employed by the respondent.
On April 25, 1939, the respondent through its president, Travis,
replied in writing, as follows :
Pacific Greyhound Lines is a party to a collective bargaining
agreement with the Amalgamated Association of Street, Electric
Railway and Motor Coach Employees of America. That agree-
ment is still in full force and effect. The Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees has
notified me that the Company will be held strictly to the terms
of that agreement, and will resort to all available remedies before
the National Labor Relations Board, and the courts, to protect
and enforce its rights under that agreement, if the Company
should depart from it.
In addition, careful consideration has been given to the order
of the National Labor Relations Board, referred to in your
letter of April 24th, and the Company has been advised by
counsel that it is erroneous and invalid.
In view of the foregoing the Company feels that until such
time as the National Labor Relations Board and the courts have
decided on the merits of this controversy, that a conference at this
time, with your representatives, would be futile.
PACIFIC GREYHOUND LINES 139
Although again requested thereafter by the Brotherhood to bargain
collectively, the respondent in fact has never done so.
The respondent and the intervenor contend that the respondent
cannot be found to have refused to bargain collectively with the
Brotherhood on and after April 25, 1939, for the reason that the
showing herein of the Brotherhood's status as statutory representa-
tive of the bus drivers at the time the foregoing requests for bargain-
ing were made rests upon invalid determinations, findings, con-
clusions, and certification in the Representation Proceedings. We
already have considered this reason and in view of what has been
stated in that connection hold this contention to be without merit.
The respondent and the intervenor further contend that the re-
spondent was under no duty to bargain collectively with the Brother-
hood because of the contract of April 15, 1938, with the Amal-
gamated, Division No. 1114. The argument, in sum, is that if a
collective agreement has been made by an employer with a labor
organization, not only as the statutory representative of its em-
ployees but as a principal to the contract,73 and providing for exclu-
sive recognition of the labor organization as collective bargaining
representative, for a closed shop in its favor, and for wages, hours
of service, and other working conditions, the employees, or certain
of the employees, in whose behalf the contract was made cannot
under the Act require the employer to bargain collectively with
any other collective bargaining representative, nor can such other
representative itself do so, pending continuance of the agreement,
even though a majority of such employees in an appropriate collec-
tive bargaining unit have established their choice of such other bar-
gaining representative in proceedings under Section 9 (c). 74 In
this connection the respondent and the intervenor also say that the
Board has never adjudicated the contract of April 15, 1938, to be
invalid.
We are of the opinion that the Brotherhood as the certified statu-
tory representative under Section 9 (c) was entitled on and after
March 10, 1939, to act as the exclusive collective bargaining repre-
sentative of the respondent's bus drivers and to require of the re-
spondent performance of its duty under Section 8 (5) of the Act.
The facts hereinabove set forth, considered in the light of the entire
record, establish that the respondent on April 25, 1939, and thereafter,
withheld from and refused the Brotherhood recognition as the exclu-
7$ We express no opinion on the matter whether the Amalgamated , Division No. 1114
executed the contract of April 15, 1938, as a principal.
74 Under the view of the respondent and the intervenor the bus drivers in the instant
case would be helpless to designate any statutory representative other than the intervenor
to bargain for them unless the intervenor or the respondent acquiesced in the choice of a
new representative , for it also is contended that the contract of April 15, 1938, may be
terminated only upon the giving of notice by the Amalgamated , Division No. 1114, or the
respondent, and by no one else.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive collective bargaining representative of the respondent's bus
drivers, and refused to meet with the Brotherhood or negotiate with
it in any respect whatsoever. We find that by thus withholding from
and refusing recognition to the Brotherhood 75 and by so refusing to
meet and negotiate with the Brotherhood in any respect whatsoever , '16
the respondent refused to bargain collectively with the Brotherhood,
within the meaning of Section 8 (5) of the Act. It is immaterial
whether in requesting collective bargaining the Brotherhood may have
assumed that the entire contract of April 15, 1938, as regards the
respondent's bus drivers, terminated by operation of law upon issu-
ance of the certification, or merely that the contract and its terms to
the extent inconsistent with representation through the Brotherhood
so terminated. Indeed, what position the Brotherhood may have
taken on this subject during negotiations is bare speculation.. The
respondent having refused outright to recognize or bargain collec-
tively with the Brotherhood on any basis, cannot here claim justifica-
tion of its refusal to bargain on a supposition concerning the Broth-
erhood's intent in such matter. It afforded the Brotherhood no
opportunity for a conference where collective bargaining could have
proceeded on any proper subject of negotiation, including the con-
tinuance of the contract, if a dispute on that subject arose.77
76 See N. L R. B v The Griswold Manufacturing Company, 106 F. (2d) 713 (C. C A.
3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association
of Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L R. B 298;
N L R. B. v The Louisville Refininq Company, 102 F ( 2d) 678 , cert den. 308 U S 568,
enf'g as mod. Matter of The Louisville Refining Company and International Association,
Oil Field, Gas Well and Refinery Workers of America, 4 N. L R B 844 See also Matter
of Mc%aiq-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of
North America, Local No 1139, 10 N. L. R. B 33 Cf . National Licorice Company v.
N. L R. B, 309 U. S 350, aff'g 104 F . ( 2d) 655 (C. C. A 2), enf'g Matter of National
Licorice Company and Bakery and Confectionery Workers International Union of North
America, et al ., 7 N L R. B 537.
Pe See N. L. R. B . v. Carlisle Lumber Company, 94 F. (2d ) 138 (C. A . A 9), cert. den.
304 U. S 576, enf'g Matter of Carlisle Lumber Company and Lumber & Sawmill Workers'
Union, Local 2511, at al, 2 N . L. R. B. 248, 99 F. (2d) 533, cert. den 306 U S 646, The
Jeffery-DeWitt Insulator Company, a corporation v. N L. R B, 91 F (2d) 134 (C. C. A.
4), cert. den . 302 U S. 731, enf 'g Matter of Jeffery-DeWitt Insulator Company and Local
No. 455, United Brick and Clay Workers of America , 1 N L. R. B 618.
'i'r If the substantive terms of the contract of April 15, 1938 , continued in force or were
treated by the parties during negotiations as continuing in force the respondent would be
under duty to bargain collectively with the Brotherhood in respect to any modifications in,
or additions to, such terms upon request of the Brotherhood. In N. L R. B. v. The Sands
Manufacturing Company, 306 U. S. 332, 342, the Supreme Court said :
The legislative history of the Act goes far to indicate that the purpose of the
statute was to compel employers to bargain collectively with their employes to the
end that employment contracts binding on both parties should be made. But we
assume that the Act imposes upon the employer the further obligation to meet and
bargain with his employes ' representatives respecting proposed changes of an
existing contract and also to discuss with them its true interpretation, if there
is any doubt as to its true meaning.
See also N L. R B V. National Licorice Company, 104 F. ( 2d) 655 (C C. A. 2) enf'g as
mod. Matter of National Licorice Company and Bakery and Confectionery Workers Inter-
national Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R. B.
537.
PACIFIC GREYHOUND LINES 141
The parties engage in extended argument concerning the legal effect
of the certification upon the contract of April 15, 1938, and its terms.78
From what has been stated above, it is apparent that, save with
respect to the matter whether the contract or any term thereof jus-
tified the respondent's outright refusal to bargain collectively with the
Brotherhood, a matter already considered, that general question is
not here presented. However, the members of the Board partici-
pating in this decision entertain divergent views on the extent of the
effect of the certification upon the contract here, involved. That of
Mr. Smith is stated in his separate concurring opinion.
I (Chairman Madden) am of the opinion that upon certification of
the Brotherhood as the new statutory representative for the bus
drivers, the contract of April 15, 1938, at least in so far as it related
to these employees'79 became inoperative as a matter of law.80 I do
not think it necessary to pass upon the broader issue of an employer's
obligation to bargain collectively, during the existence of an exclusive
recognition or closed-shop contract, with representatives other than
those recognized in the contract, where the employees have changed
their allegiance during the term of the contract and have designated
new representatives. For the same reasons for which the Board held
that the contract constituted no bar to the Board's elections and cer-
tification in the Representation Proceedings, the contract was defeas-
ible,•subject to the outcome of the elections there directed. Since the
Amalgamated failed to be designated as the statutory representative
in the election among the bus drivers, the Brotherhood as the rep-
resentative certified by the Board was free on and after March 10,
1939, to enter into collective bargaining with the respondent, or
78 The parties refer to the opinion of the United States Circuit Court of Appeals for the
Ninth Circuit in the case of N. L. R. B. v. Pacific Greyhound Lines, Inc., 106 F. ( 2d) 867
(C C. A. 9). In that case the court dismissed a rule entered upon the respondent to
show cause why it should not be adjudged in contempt for alleged violation of a decree
enforcing an order of the Board under the Act Neither the Brotherhood nor the inter-
venor was a party to the court proceeding , nor did the case involve any refusal of the
respondent to bargain collectively with the Brotheihood The order of dismissal was
made upon a motion of the respondent challenging the legal sufficiency of the petition for
a rule We do not believe that the decision there is determinative of the legal effect of the
certification upon the contract of April 15, 1938 Moreover, it will be noted that the court
in its opinion said (106 F . ( 2d) 871 ), ". . . we would . . purge the contempt upon the
commencement by Greyhound before the Board of a proceeding to determine the . . effect
thereon [on the contract of April 15 , 1938] of the elections
791t is unnecessary to decide whether or to what extent either the certification of the
Brotherhood or the failure of the Amalgamated to establish itself in the election as the
statutory representative of the station and clerical employees of the respondent affected
the terms of the contract respecting the station and clerical employees.
so See my opinion in Matter of Walson -Jones Company and Employees Benevolent Asso-
ciataon of Elizabeth, N. J., Inc, 21 N . L R. B 943, where the Board ordered an election
pending an outstanding collective agreement made after the filing of a petition for investi-
gation and certification of representatives.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
require collective bargaining of the respondent, unfettered by the
contract of April 15, 1938, and its terms.81
We find that on April 25, 1939, and thereafter, the respondent,
by refusing to recognize the Brotherhood as the exclusive collective
bargaining representative of its bus drivers, and by refusing to meet
and negotiate with the Brotherhood as such representative, refused
to bargain collectively with the Brotherhood, and thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policy of the
Act that the respondent be ordered to cease and desist from the un-
fair labor practices in which we have found it to have engaged, and,
in aid of such order and as a means of removing and avoiding the
consequences of such practices, that the respondent be ordered to take
certain action more particularly described below.
We have found that on March 10, 1939, the Brotherhood was the
statutory representative of all the respondent's bus drivers, so certi-
fied on that date in due proceedings before the Board and that that
labor organization at all times since has continued to be the certified
collective bargaining representative of those employees. We also
have found that the respondent on April 25, 1939, and thereafter
refused to recognize and bargain collectively with the Brotherhood.
The record discloses no meritorious ground for the respondent's un-
lawful action in withholding recognition from the certified bargain-
"This would not mean that statutory collective agreements are impermanent and can
be set aside at any time by a majority of the employees initiating proceedings under Sec-
tion 9 ( c) for a new statutory representative . As heretofore stated, the Board in further-
ance of the aim and policy of the Act to attain stabilized labor relations has held that
collective contracts validly made , and where no other controlling circumstances such as
those here present appear, bars an investigation and certification of representatives. See
footnote 57, supra.
For a discussion of the nature of collective agreements under the Act, see the opinion
of the United States Circuit Court of Appeals for the Fourth Circuit, per Parker, P. J , in
N. L. R. B. v. Highland Park Manufacturing Company, 110 F ( 2d) 632 ( C C. A. 4), enrg
Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee,
12 N. L . R. B. 1238.
PACIFIC GREYHOUND LINES 143
ing representative chosen by these employees in an election under
Board supervision, nor is any tenable reason offered for its unlawful
action in refusing to bargain collectively with that representative.
The stability of industrial relations to which the respondent adverts in
its brief will be attained only when and if the respondent ceases
its trespass upon the right of its bus drivers to select whatever rep-
resentative they believe most able to secure their interests as em-
ployees. Accordingly, we shall order the respondent to cease and
desist from its unfair labor practices, and in effectuation of that order
and the purposes and policy of the Act, to bargain collectively, upon
request, with the Brotherhood as the certified bargaining represent-
ative of its bus drivers. We also shall order other affirmative action
to remedy the situation.
Upon the basis of the foregoing findings of fact, and upon the
entire record in this proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Brotherhood of Railroad Trainmen is a labor organization
within the meaning of Section 2 (5) of the Act.
2. Amalgamated Association of Street, Electric Railway and Motor
Coach Employes of America, and Division No. 1114 thereof, is a
labor organization, within the meaning of Section 2 (5) of the Act.
3. The bus drivers employed by the respondent constituted and
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
4. Brotherhood of Railroad Trainmen was on March 10, 1939, and
at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of section 9 (a) of the Act:
5. By refusing on April 25, 1939, and thereafter, to bargain col-
lectively with the Brotherhood of Railroad Trainmen as the ex-
clusive representative of all its bus drivers, the respondent has en-
gaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
6. 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.
7. The aforesaid unfair labor practices, and each of them, are
unfair labor practices affecting commerce, within the meaning of
Section 2 (6) and (7) of the Act.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 re-
spondent , Pacific Greyhound Lines , San Francisco , California, and
its officers , agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Brotherhood of Rail-
road Trainmen as the exclusive representative of all its bus drivers,
in respect to rates of pay, wages, hours of employment , and other
conditions of employment;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the right 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 purposes of collective bargaining and
other mutual aid and 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) Bargain collectively upon request with Brotherhood of Rail-
road Trainmen as the exclusive representative of all bus drivers
employed by it, in respect to rates of pay, wages , hours of employ-
ment, and other conditions of employment;
(b) Post immediately in conspicuous places at its main offices
in San Francisco , California , and at all of its terminals and garages,
and keep posted for a period of at least sixty ( 60) consecutive days
from the date of posting , ( 1) notices stating that it will cease and
desist in the manner set forth in paragraphs 1 (a) and (b) of this
Order, and ( 2) that it will bargain collectively upon request with
Brotherhood of Railroad Trainmen as the exclusive representative of
all its bus drivers in respect to rates of pay, wages , hours of employ-
ment and other conditions of employment; and
(c) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from date of this Order, what steps
it has taken to comply herewith.
MR. EDWIN S . SMITH, concurring :
I concur in the findings , conclusions , and order of the Board.
In the Representation Proceedings the Board held the contract of
April 15, 1938 , to be no bar to an investigation and determination
concerning which of the two union claimants , the Brotherhood or the
Amalgamated , was the freely chosen bargaining agency of the re-
PACIFIC GREYHOUND LINES 145
spondent's bus drivers. The Board directed two elections, one among
the bus drivers, the other among the remainder of the employees,
following principles analogous to those of the Globe case; 82 in these
elections the Amalgamated was repudiated by the remainder of the
employees, and the Brotherhood was chosen by a substantial majority
of the bus drivers as their statutory representative. Under these
circumstances to hold, as the respondent and the intervenor insist,
that the Amalgamated can continue to act as the bargaining rep-
resentative of the bus drivers because of a collective contract which
it made for these employees, would do violence to the intent and
policy of the Act and undermine the statutory scheme. The Board
properly finds that the Brotherhood was entitled upon certification,
to recognition and collective bargaining, irrespective of the contract
of April 15, 1938, and that the respondent's refusals in that regard
violated the Act.
However, as noted by the Chairman, I am not in complete accord
with the view which he expresses concerning the legal effect of the
certification upon the contract of April 15, 1938, although I concur
in the holding of the Board, as above stated, that the contract cannot
justify the respondent's conduct disclosed by the record. I am of
the opinion that the selection by employees of a new statutory rep-
resentative and the certification of that representative in proceedings
under Section 9 (c) result merely in the termination by operation
of law of the outstanding collective contract or its terms where they
conflict with action by the certified representative as representative,
and not in a termination of all substantive terms of the contract
otherwise valid.83 I believe this to be the legislative intent of Sec-
tion 9 (c) as well as Section 9 (a). In the instant case, any grant
of recognition in the contract to the Amalgamated, Division No. 1114,
as exclusive bargaining representative of the bus drivers, ceased
upon certification. Because I am not satisfied that the provision
contained in the contract for a closed shop was intended to benefit
a successor union representative to the- Amalgamated, Division No.
1114, and since enforced membership of the bus drivers in the Amal-
gamated and its division is inconsistent with the Brotherhood repre-
senting these employees for collective bargaining, that provision
similarly abated on certification.84 Finally, the status of the Amal-
83 Matter of The Globe Machine and Stamping Co and Metal Polishers Union, Local No 3;
International Association of Machinists, District No 54, Federal Labor Union 18788, and
United Automobile Workers of America, 3 N L R B 294
88 The Board did not in the Representation Pioceedmgs hold the contract invalid, and
found that when executed a majority of the employees of the respondent were members of
the Amalgamated, Division No. 1114.
84 See my opinion in Matter of Ansley Radio Cat poration and Local 1221 United Electrical
& Radio Workers of America, C. 1 0., 18 N L It. B 1028, where I expressed a similar
conclusion in a case not involving proceedings under Section 9 (c)
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gamated, Division No. 1114, as a principal to the contract, if it acted
as principal as well as representative of employees in executing the
contract, and any control which as principal it acquired over the
contract and the force thereof including substantiative provisions
covering wages, hours of service, and other working conditions
terminated to the extent that such status and control pertained to
provisions concerning the bus drivers. Such status as principal
conflicted with the authority of the Brotherhood under its designa-
tion as certified representative to represent these employees for col-
lective bargaining. On the other hand, provisions covering wages,
hours of service, and other working conditions of these employees
continued in force and were binding upon the bus drivers as prin-
cipals after certification. This does not mean that there existed
no subject for collective bargaining with the Brotherhood. The
parties could bargain with respect to abrogation of the contract in
this regard or to changes in and additions to the contract. It is
immaterial that the contract covered not only bus drivers but also
station and clerical employees, for the bus drivers have been found
to comprise an appropriate bargaining unit and they have designated
a statutory representative.
I would not interpret the termination clause of the contract as
vesting in the Amalgamated, Division No. 1114, power to determine
the continuance of the contract from year to year after the Brother-
hood was certified, for were that the intent the clause would be in-
valid as being in derogation of the right under Section 9 (a) of a
majority of the employees in an appropriate bargaining unit to
control matters of collective bargaining for all employees in the unit
through a statutory representative. In the Greyhound- contempt
case the Circuit Court of Appeals was of the opinion that the
Brotherhood would be entitled to exercise the power of termination
in behalf of the employees.
MR. WILLIAM M. LFSSERSON took no part in the consideration of
the above Decision and Order.
85 N. L. R. B. v. Pacific Greyhound Linea, Inc., 106 F . (2d) 867 (C. C. A. 9).