Texarkana Bus Co., Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1940

26 N.L.R.B. 582 (N.L.R.B. 1940)

In the Matter of TEXARKANA Bus COMPANY, INC. and Two-
STATES TRANSPORTATION COMPANY, INC., and AMALGAMATED
ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH
EMPLOYEES OF AMERICA, AFFILIATED WITH_ THE AMERICAN
FEDERATION OF LABOR
Case No. C-1591 -Decided August 15, 1940
Jurisdiction : motor transportation industry.
Unfair Labor Practices
Interference, Reotraint, and Coercion anti-union statements; declarations of union
preference; discharge of one employee subsequent to his disclosure of his union
activities and as a consequence thereof; interrogation concerning union member-
ship and activities, preparation and solicitation of employees to sign letter
renunciating the Union, use of employment application form calling for state-
ment of labor organization of which applicant a member; discharge of one em-
ployee as, dismissed as to one of the respondents.
Discrimination: change of work shifts, suspensions, and discharges, refusal to
reinstate an employee after leave of absence.
Collective Bargaining- union's majority indicated by express authorization; effect
of withdrawal of designation as a result of unfair labor practices-failure to
negotiate in good faith: conditioning recognition on proof of majority while
endeavoring to destroy majority by causing employees to sign letters renunicat-
ing the Union.
Remedial Orders : respondent ordered to bargain collectively; reinstatement
ordered: as to employees found to be discriminatorily transferred prior to dis-
criminatory discharge, to positions held prior to the transfers; back pay awarded
Unit Appropriate for Collective , Bargaining : regular and extra bus drivers exclud-
ing those drivers who have not finished a complete day's run
Mr. Samuel Lang, for the Board.
Mr. Ned Stewart, of Texarkana, Ark., for the respondent.
Mr. J. D. Elliott, of Shreveport, La., and Zimring & Rabe, by
Mr. 0. David Zimring, of Chicago, Ill., for the Union.
Mr Malcolm A. Hofmann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges i duly filed by Amalgamated
Association of Street , Electric Railway and Motor Coach Employees
i Attached to the complaint is a second amended charge filed January 17, 1940 Three separate amend-
ments to the second amended charge were filed on March 2, 6, and 7, 1940, respectively.
26 N. L. R B., No 63.
582
TEXARKANA BUS COMPANY, IN C. 583
of America, affiliated with the American Federation of Labor, herein
called the Amalgamated, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Fifteenth Region
(New Orleans, Louisiana) issued its complaint dated February 5,
1940,2 against the Texarkana Bus Company, Inc., and the Two-States
Transportation Company, Inc., herein separately called the Bus
respondent and the Taxi respondent, and collectively called the
respondents, alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint as amended 3
alleged in substance (1) that the Bus respondent discharged Frank J.
Thomas in September 1935 because of his activities in behalf of the
formation of a labor organization; (2) that the respondents in October
1937, and for several months thereafter, interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act, in connection with the International Brother-
hood of Teamsters, Chauffeurs, Stablemen and Helpers of America,
Local Union #880, herein called the Teamsters; (3) that the respondents
similarly interfered with, restrained, and coerced their employees by
detailed acts beginning on or about May 29, 1939, in connection with
the Amalgamated; (4) that the respondents discriminated in regard to
the hire and tenure of employment of Robert L. "hhatley, Jr., Laurence
S. Medley, John W. Earnest, George A. Goss, Burnyl B. Lurry,
W. H. Reynolds, and William B. Pierce, by discharging and refusing
to reinstate them because of their union activities and thereby dis-
couraging union membership and activity; (5) that the respondents
discriminated in respect to the hire and tenure of employment of
Robert L. Whatley, Jr., W. H. Reynolds, and William B. Pierce by
changing their work shifts; (6) that the respondents discriminated in
respect to the hire and tenure of employment of W. H. Reynolds,
E. A. Herndon, Jr , and William B. Pierce by laying off Reynolds for
15 days, Herndon for 15 days, and Pierce for 45 days; (7) that the Bus
respondent, since on or about June 1, 1939, has refused to bargain
collectively with the Amalgamated as the exclusive representative of
the employees of the Bus respondent in an appropriate unit of bus
drivers and extra bus drivers, and, in interference with the rights
guaranteed in Section 7 of the Act, has induced certain of its employees
to sign letters terminating their affiliation with the Amalgamated.
The complaint and accompanying notice of hearing were duly
served on the respondents. On February 15, 1940, the respondents
2 Three separate amendments to the complaint were issued on March 2, 6, and 7, 1940, respectively
3 At the beginning of the hearing the respondents waived notice of the amendments to the complaint and
the Trial Examiner granted them leave to file answers thereto at any time during the progress of the hearing
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed their answers denying that they had engaged in the alleged unfair
labor practices.' Pursuant to notice a hearing was held at Texarkana,
Arkansas, on March 7, 8, 9, 11, 12, and 13, 1940, before George Bokat,
the Trial Examiner duly designated by the Board. The Board and
the respondents, represented by counsel, and the Amalgamated, by its
representative, participated in the hearing. Full opportunity to be
heard, to examine and to cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
hearing counsel for the Board moved to amend the complaint to
include in paragraphs 20 and 23 thereof the name of William B. Pierce
as having been discriminated against, and to strike from said para-
graphs the name of John W. Earnest. At the conclusion of the hearing
the Board's attorney moved that the pleadings be conformed to the
proof in regard to minor details and moved for permission to take the
deposition of one Thomas S. Neblett.5 The Trial Examiner granted
these motions. The attorney for the Board also moved to take the
depositions of certain other persons and this motion was denied by
the Trial Examiner.
At the close of the Board's case and at the conclusion of the hearing,
the respondents addressed various motions to the complaint and
to the sufficiency of the proof adduced in support thereof. The
respondents' motion to dismiss that part of the complaint alleging a
violation of Section 8 (3) of the Act in respect to W. H. Reynolds, was
granted by the Trial Examiner. The Trial Examiner reserved
decision on similar motions to dismiss the complaint with respect to
Laurence F. Medley, John W. Earnest, Burnyl B. Lurry, G. Allen
Goss, Robert L. Whatley, Jr., and W. B. Pierce. The Trial Examiner
also reserved decision on the motion of the Bus respondent to dismiss
that part of the complaint alleging that it had violated Section 8
(5) of the Act, the motion of the Taxi respondent to dismiss the com-
plaint in its entirety in respect to it, and the motion of both respond-
ents to dismiss an allegation of surveillance of their employees'
union activities. During the course of the hearing the Trial Examiner
made several rulings on other motions and on objections to the ad-
mission of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Trial Examiner issued his Intermediate Report dated May 27,
1940, copies of which were duly served upon the respondents and the
Amalgamated, in which he granted the motion of the Bus respondent
4 The respondents also filed answers to the amendments to the complaint denying the alleged unfair labor
practices set forth therein.
b On March 27, 1940, after the termination of the hearing , the Trial Examiner signed and caused to be
served on all parties an order receiving in evidence as Board Exhibit No 38 a stipulation by the parties of
certain facts within the knowledge of Thomas S Neblett, in lieu of his testimony by deposition. By the
same order the Trial Examiner received in evidence Board Exhibit No 35 in connection with the proposed
testimony of Neblett , upon the admission of which ruling had been reserved.
TEXARKANA BUS COMPANY, INC. 585
to dismiss that part of the complaint alleging a violation of Section 8
(5) of the Act, and also granted the respondents ' motion to dismiss
those parts of the complaint alleging violations of Section 8 (3) of the
Act in respect to Laurence S. Medley, John W. Earnest and Burnyl B.
Lurry, but denied similar motions addressed to similar allegations
respecting George A. Goss , Robert L. Whatley, Jr., and William B.
Pierce. The Trial Examiner in his Intermediate Report also denied
the motion of the Taxi respondent to dismiss the complaint in its
entirety in regard to it and granted the motion made by both respond-
ents to dismiss the surveillance allegation . The Trial Examiner
found that the Bus respondent had in engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 ( 1) and (3) and Section 2 (6) and (7) of the Act, and that
the Taxi respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(1) and Section 2 (6) and (7) of the Act, and recommended that the
respondents cease and desist from their unfair labor practices , that the
Bus respondent offer full reinstatement to William B. Pierce, Robert
L. Whatley, Jr., and George A. Goss, and make them whole for any
loss of pay resulting from their discriminatory discharges , and further
recommended that the Bus respondent make whole E . A. Herndon,
Jr., and William B. Pierce for any loss of pay they may have suffered
by reason of their discriminatory suspensions of 15 and 45 days,
respectively.
On June 14, 1940, the respondents filed exceptions to the Inter-
mediate Report, and on June 16 , 1940, the Amalgamated filed its
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to notice a hearing for the purpose of oral argument was
held before the Board in Washington , D. C., on July 9, 1940. The
respondents were represented by counsel and participated.
The Board has considered the exceptions of the respondents and
the Amalgamated and, save as they are consistent 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
I. THE BUSINESS OF THE RESPONDENTS
The Bus respondent is a Texas corporation engaged exclusively in
the business of carrying passengers in commercial buses in and between
the cities of Texarkana , Arkansas, and Texarkana , Texas. The rev-
enue of the Bus respondent is solely derived from 5-cent fares, and in
the first 6 months of 1939 approximated $35,000. The annual revenue
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Bus respondent is apportioned at 60 per cent for services
rendered in the State of Texas and 40 per cent for services rendered in
Arkansas. The routes of the Bus respondent run from points in
Texarkana, Texas, to points in Texarkana, Arkansas, and about 60
per cent of the territory served is in Texas with the balance in Arkan-
sas. The Bus respondent furnishes the only means of transportation
available to the public at large, in, between, and through the cities of
Texarkana, Texas, and Texarkana, Arkansas, other than taxicabs.
Each of the buses used, traverses a route to and from both cities more
than 10 times a day. The officers of the Bus respondent are C. E.
Mitchell, president, -Bero Eldridge, vice president, and Joseph
Eldridge, secretary-treasurer. C. E. Mitchell and Joseph Eldridge
control the operations and labor policies of the Bus respondent.
The Taxi respondent is a Texas corporation engaged exclusively in
the operation of taxicabs for transportation purposes in, between, and
through, the cities of Texarkana, Texas, and Texarkana, Arkansas.
The taxicabs operated by the Taxi respondent travel daily to and from
points in Texas and Arkansas and, during the first 6 months of 1939,
produced a revenue of approximately $9,000. Although the appor-
tionment of revenue obtained by the Taxi respondent from its services
is difficult to ascertain, the Taxi respondent believes that about 60
per cent of its annual income is derived from services in Texas and
about 40 per cent from Arkansas. The officers of the Taxi respondent
are C. E. Mitchell, president, and Joseph Eldridge, secretary-treasurer.
The Trial Examiner found that the Bus respondent and Taxi respond-
ent, although owned by the same stockholders and managed by the
same Board of Directors and the same officers, are operated as two
separate and distinct corporations. The respondents concede that
they are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America is a labor organization affiliated with the
American Federation of Labor. It admits to membership regular and
extra bus drivers of the Bus respondent.
International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local #880, is a labor organization affiliated
with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
When on or about January 1, 1935, the Bus respondent began its
operations, it put into effect a printed application form to be filled out
and signed by applicants for work. This form, apparently still in
TEXARKANA BUS COMPANY, INC. 587
use, contains the following request: "Name any lodge, labor or benefit
organization of which you are a member." Although there is evidence
indicatmg.that not all applicants were required to fill out these forms,
they were still used in July of 1939.6 It is apparent that the refusal
to fill in this blank might create the inference that the applicant is a
member of a labor organization and that the request itself deters con-
certed activity by both applicants for employment and employees
who have filled in the application blank.'
Employees of the Bus respondent first interested themselves in a
labor organization in September 1935, when Frank J. Thomas and
Mike Hatler, bus drivers, arranged with one Eugene Sullivan, an
A. F. L. local organizer, for the holding of a meeting among employees
of the Bus respondent in order to discuss the formation of a union.
Shortly thereafter such a meeting was held and attended by 10 to 20
employees of the Bus respondent, including most of the day-shift bus
drivers, and a few truck drivers from local companies. At this meet-
ing Thomas was elected temporary treasurer for the purpose of col-
lecting initiation fees to procure a charter from the"Teamsters Union."
Thomas was the only officer elected that evening, and the meeting was
adjourned until the,following week.
Thomas testified that the next morning he learned from Eldridge
that the Bus respondent had given him a 90-day suspension because
his "services had been unsatisfactory for sometime." According to
Thomas, he was unable to get a specific reason for his suspension and
inquired whether the union had something to do with it. Then, "after
I mentioned the union he (Eldridge) kmda got a little bit mad and
said that I was fired." Thomas testified that Eldridge said "he didn't
think that we ought to have organized the truckers and the teamsters
union-said that we ought to have a union of our own find he said that
if that was my attitude toward the company that I was fired." Al-
though Eldridge admitted that he had the right to hire and discharge,
he denied that he had discharged Thomas and testified that Mitchell
had done the discharging. Both Eldridge and Mitchell testified that
they had no knowledge whatsoever of the union before an organizer
named Sullivan questioned them about the reasons for Thomas' dis-
charge. It was not denied that Thomas had first been suspended for
90 days and then discharged. The Trial Examiner did not make the
finding that Thomas' suspension resulted from his union activities
but did find that Thomas was discharged subsequent to his disclosure
of his union activities and as a consequence thereof. There was no
6 The form is drafted upon a model borrowed from another company
7 Other evidence of interference with the union activity of its employees by the Bus respondent, discussed
infra, lends weight to the inference that this question was asked with the view of obtaining information
concerning the union affiliation of employees or applicants for employment The situation presented is
thus different from that in Matter of Hartsell Mills Company and Textile Workers ' Organizing Committee,
18 N. L. R. B , 288, at page 14.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific denial of the testimony that Thomas was discharged following
this disclosure, and, giving weight to the circumstance that the Bus
respondent failed to advance any cause for the dismissal, we agree
with the finding of the Trial Examiner. Following the discharge of
Thomas only two or three of the respondent's bus drivers attended
the next scheduled meeting of the employees and the attempt to obtain
a union charter was abandoned.
The next effort to organize the drivers of the Bus respondent took
place in the fall of 1937, when William B. Pierce, a bus driver, com-
municated with Sullivan and told him that the employees of the
respondent bus company were again going to try to form a union.
This organizational campaign resulted in the obtaining of a charter
from International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers, on October 11, 1937, and the creation of a Local known
as Local #880. Nearly all of the Bus respondent's drivers joined
Local #880. Shortly after the installation of the charter the Local
decided to admit to membership truck drivers of the Kenosha Auto
Transportation Company, a local trucking company.
Robert L. Whatley, Jr., a bus driver, testified that within a few
days after the formation of Local #880, Mitchell, president of the
respondents, questioned him about it and stated, "that he would like
for us to have gotten into a union of our own." Although Mitchell
denied making this remark, other witnesses ascribed similar state-
ments to him, and the Trial Examiner, who observed his demeanor,
found that the remark was made. Whatley further testified that
about two weeks after the formation of Local #880, Mitchell and
Eldridge called a meeting of the day-shift drivers at which Mitchell
informed them "that he was very much hurt that the boys" had
joined "the union without talking to him about it." Pierce testified
that either Mitchell or Eldridge inquired why the drivers wanted to
join a union and informed them that they did not want their drivers
to be in a union with truck drivers. Whatley and Pierce both testi-
fied that Mitchell and Eldridge stated that they were going to have
all of the Bus respondent's rules compiled into a Rule Book and
"they told us they could find things in this book of rules to fire us
about other than belonging to the union." Other witnesses testified
to the same threat. On or about November 30, 1937, the Bus re-
spondent distributed a printed book of rules to all of its drivers con-
taining all the rules previously posted from time to time on the Bus
respondent's bulletin board.
In addition to the meeting described above, at about the same
time Mitchell and Eldridge also addressed a meeting of the night-
shift drivers concerning Local #880. H. Gordie Brown, a driver, who
attended, testified that "they talked like they were against it [Local
880]; they didn't say that they were, but they wanted to know why
TEXARKANA BUS COMPANY, IN C. 589
we wanted to join it and what good we thought it would do us."
Both Mitchell and Eldridge denied calling these meetings and denied
making the statements attributed to them. Mitchell, asked by the
respondents' counsel, "Did you warn any of the employees that there
were lots of things that you could fire your drivers for?" replied, "I
don't remember it if I did." Nevertheless four of the Bus respond-
ent's witnesses, C. J. Niemeyer, Hugh Keller, Paul H. Bean, and
Victor Vetrano admitted attending a meeting in 1937 during which
Mitchell and Eldridge discussed Local #880, and Vetrano recalled
Mitchell stating "that they thought the boys ought to have a union
of their own." We therefore find, as did the Trial Examiner, that
the officers of the Bus respondent called the meetings aforesaid and
made the remarks attributed to them.'
Following closely in the wake of these two meetings, James Howell
and Roy Westmoreland, president and vice president of Local #880,
respectively, were discharged by the Bus respondent.' The Trial
Examiner found that "while clearly suspicious, the discharges of How-
ell and Westmoreland were not supported by sufficient proof to estab-
lish that they were discriminatory within the meaning of the Act." We
agree with the Trial Examiner's conclusion. After the discharges of
Howell and Westmoreland the bus drivers' interest in Local #880
waned and all dropped out of it by the time union dues were next
to be paid. Robert L. Whatley, Jr., testified that he did not pay dues
after paying his initiation fee because "they fired the president and the
vice-president and I thought it best to drop out while I could and I
didn't want any trouble." 10 One Jess Stevens testified that about
the time when Local #880 was formed he applied to Mitchell for a job.
Mitchell asked him whether he belonged to a union, and being told
that he did not, said, "Well, stick around, I might need about 22 men,
[approximately the number of bus drivers] ... 1 am going to show
these boys who is the bull of the woods."
Organizer Sullivan testified that shortly after the formation of
Local #880, a proposed contract was submitted by the- Local to the
Bus respondent to which the latter replied by returning its own form
of agreement which the Local rejected, and that-negotiations then
ceased and an agreement was never jointly executed because at about
that time the employees of the Bus respondent began to drop out of
Local #880. The contract as submitted by the Bus respondent to the
union consisted for the most part of a compilation of existing company
9 In reaching this conclusion, we give weight to the testimony of one D T Lurry, who was not an em-
ployee of the Bus respondent but was a close friend of Eldridge„that Eldridge told him, "if he wanted to
fire a man, that they had rules and that some of them were always breaking the rules and he said anytime
they broke a rule he could fire them if he wanted to
9 On or about November 5, 1937
19 H. Gordie Brown was asked, "Did you have any particular reason for dropping out of Local #880?"
and answered, "Well, two of the boys got fired and all the rest of us all dropped out." Pierce also stated
that he dropped out of Local #880 because "they fired a couple of the drivers "
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rules and regulations. The Bus respondent contended that it evi-
denced its good faith in dealing with labor organizations by signing
the agreement exactly as presented by Local #880 and that it "operated
in accordance with the terms and provisions thereof . . . for several
months in perfect accord and harmony." Both Mitchell and Eldridge
testified that after first obtaining the approval of their attorney, the
agreement was signed exactly as presented, but admitted that it was
never executed by Local #880. The provisions of the alleged agree-
ment signed by the Bus respondent indicate the unlikelihood of its
having been prepared by the union, and it is not reasonable to assume
that Local #880 rejected the very agreement that it had submitted
for the Bus respondent's approval. It is, moreover, apparent that the
Bus respondent did not operate under the said agreement as alleged in
its answer. In view of the anti-union conduct of the Bus respondent,
set forth above, occurring coincidentally with the alleged execution of
the agreement submitted by the union, we do not credit the Bus
respondent's contention that it executed the agreement presented by
Local #880.11
On May 27, 1939, J. D. Elliott, a special organizer for the Amal-
gamated, arrived in Texarkana and began to organize the regular and
extra bus drivers of the Bus respondent. On June 12, 1939, Elliott
already had sufficient applicants to present a charter ,and to appoint
temporary officers. Pierce signed an application for membership on
May 30, 1939. He testified that within a few days thereafter Eldridge
told him ". . . we knew that you boys were going to organize and we
decided to let you go ahead and do what you wanted to . . . when you
boys get ready to bring a contract in here to sign, you bring it in here
yourself and don't send Mr. Elliott, we don't want to deal with him."
Although Eldridge denied having made this remark, the Trial Exam-
iner, weighing the demeanor of both witnesses, found that he did so,
and we so find. It is thus apparent that at this time the Bus respond-
ent was aware of the organizational activities of Elliott and some of
its employees.12
On June 13, 1939, Elliott and a committee of the Amalgamated,
consisting of Pierce, Whatley, Brown, Westmoreland,13 and Herndon,
met with Mitchell and Eldridge. Elliott stated that the Amal-
gamated represented a majority of the regular and extra bus drivers
and that he desired to negotiate a contract.14 Mitchell and Eldridge
refused to enter into bargaining negotiations until Elliott showed
proof of the claimed majority by divulging the names of the drivers
11 In this connection we note the testmiony of Whatley that one Bertell , a business agent designated to
negotiate the contract by the union , reported that the Bus respondent refused to sign the contract submitted
by the union but signed one drawn up by its attorney which was unacceptable to Local #880.
19 See Section III E, infra
1' Westmoreland was reemployed by the Bus respondent several months after his discharge in November
of 1937
I' See Section III C 2, infra.
TEXARKANA BUS COMPANY, INC. 591
constituting the majority. This Elliott refused to do. Elliott,
however, at the request of Eldridge, indicated who were the temporary
officers.15 The meeting consumed only a few minutes since it was
agreed to adjourn until the following morning when the problem would
be discussed more thoroughly, due to the fact that the shifts of the
bus drivers were about to change.
Later that afternoon Mitchell and Eldridge, after consultation with
their attorney, prepared letters all reading substantially as follows:
TEXARKANA BUS COMPANY, INC.,
Texarkana, Texas, June 13, 1939.16
Mr. J. D. Elliott, or To whom it may concern:
GENTLEMEN: The purpose of this letter is to advise you that I
do not wish for you or anyone else to bargain for or make any kind
of a contract for me or in my behalf with the Texarkana Bus
Company, Inc.
Yours truly,
Mitchell and Eldridge both admitted that they asked most of their
drivers to sign letters similar to the one above set forth. In connec-
tion with this incident, Mitchell testified "We just showed them the
letter and asked them if they wanted to sign it."
Q. Did you tell them why it was that you wanted them to sign
it?
A. No. I just wanted to know if they were being represented
by Mr. Elliott.
Q. Were the employees aware of the fact that the union
claimed to have a majority?'
A. I think some of these drivers did.
Q. Did you explain that to them?
A. No, I don't believe I did.
The evidence indicates that all but two of the drivers presented with
letters signed them. The Bus respondent contends that by use of
the letters, it was merely attempting to ascertain whether or not the
Amalgamated possessed a majority. It is apparent, in the face of the
refusal of the Amalgamated to disclose its membership, that this
attempt, taking the form of letters of renunciation of the Amalga-
mated signed by the bus drivers, itself constitutes a violation of the
Act. Moreover, the Bus respondent's own version of the incident
makes apparent that it deliberately set about to destroy the alleged
majority of the Amalgamated in order to avoid its obligation under
the Act to bargain with the Amalgamated. The language of the
letter, which was read by the bus drivers in the presence of Mitchell
and Eldridge, and after being summoned by them, coupled with the
15 Referring to one of them , Eldridge made the remark , " well, he is a good one
2(By error some of the letters were dated July 13, 1939.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request to sign, clearly indicated to the employees the desires of their
employer. In this connection we note the testimony of Pierce that
at the time he signed the letter Eldridge told him "it would be best
for me to sign it." Goss testified that they "wanted me to sign it
for the benefit of the company and I told them I would." The testi-
mony of Lurry was that in the presence of Mitchell, Eldridge explained
the meaning of the letter to him, as follows: "that it didn't concern
the union and nothing about it, just told me to do my own bargaining
and nobody would do my own bargaining." Indicative of the sig-
nificance attached to the letter by the employees is the testimony of
Medley, who was later discharged, that he refused to sign, telling
Eldridge, . . . "if it cost me my job that I couldn't help it, but I
would not sign that letter." 17 One Herbert McWilliams testified
that Eldridge and Mitchell called him into the back office and "they
told me they had a letter they wanted me to sign and they said that
all of the rest of the boys were signing them." 18
Eldridge, at a later date, noticing a picture of H. Gordie Brown's
daughter at the office of the bus company, said, ". . . it was a mighty
pretty little girl, that he didn't see why a man with a pretty little
girl like that would act like some of them do, that it looked like they
would want to protect their jobs more." Herbert McWilliams testi-
fied that at about the middle of June 1939 he had a conversation with
Eldridge as follows:
He [Eldridge] asked me, "Mack, have you signed up with those
boys in that union?" And I says, "Yes, I have." . . . He said,
"Have you paid anything on it?" And I says, "I have paid as
much as any of them have." And he said, "Don't pay any
more."
G. Allen Goss testified that on or about June 15, 1939, as a result
of a conversation he had with Chief of Police Giles of Texarkana,
Arkansas, Eldridge told him, "that he knew that he could reach me
through Mr. Giles where he couldn't through himself" and ". . . that
he didn't want me to get mixed up . . . in the union." Goss further
testified that on May 29, 1939, Mitchell told him that he knew that
Herndon, McWilliams, Medley, Brown, and Westmoreland, had met
with Elliot in a hotel in Texarkana, and Mitchell observed of the union,
"that he expected it to be a good thing for the fellows to stay out of,
that it would just cause a lot of trouble." H. Gordie Brown testified
that Eldridge spoke to him in the office about the union one day, and
asked "what good we thought it would do us; he said that he thought
these guys were just trying to get their money."
17 Medley admitted, however, that Eldridge made the remark at the time that it "wouldn' t interfere with
my job '
18 McWilliams also testified that he told Eldridge , "I don't understand it," and "he [Eldridge] read it to
me himself, and I says 'If the rest of the boys are all signing them'."
TEXARKANA BUS COMPANY, INC. 593
Notwithstanding the denials of Mitchell and Eldridge to the afore-
said conversations, which are conformable with other testimony
establishing their anti-union attitude, and evidenced by the testimony
of numerous witnesses, we find that the conversations above set forth
took place substantially as related above."
We find that the Bus respondent by the use of the application form
heretofore described, by the discharge of Thomas, as above set forth,
by the meetings convoked in 1937 in connection with the formation of
Local #880, by the preparation of, and the request to sign, the letters
of June 13, 1939, and by the activities and remarks of Mitchell and
Eldridge as detailed above, and by each of said acts, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Interference, restraint, and coercion on the part of the Taxi respondent
The complaint, as amended, alleged that the Taxi respondent com-
mitted certain unfair labor practices within the meaning of Section 8
(1) of the Act. As indicated above, there was never any effort on
the part of the taxi drivers to interest themselves in a labor ograniza-
tion. Nevertheless, Mitchell and Eldridge were officers of both
respondents, and it seems that they disregarded the corporate separa-
tion in so far as certain taxi drivers served also as extra bus drivers for
the Bus respondent. The testimony specifically indicates that some
of these employees were requested to sign the letters of June 13, 1939.
In procuring the signing of the letters of employees of both respond-
ents, Mitchell and Eldridge cannot be presumed to have acted solely
as officers of the Bus respondent. In this respect, their acts are
chargeable to the Taxi respondent, and we find that the Taxi respond-
ent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The complaint as amended also alleged the discharge of John W.
Earnest by the Taxi respondent as a violation of Section 8 (1) of the
Act. Earnest was employed as a taxi driver for about 8 months prior
to his discharge on July 31, 1939. The records of the Bus respondent
indicate that the first full day Earnest worked as an extra bus driver
was June 12, 1939, and the last day was June 24, 1939. Earnest joined
the Amalgamated in the latter part of June 1939, although on June 13
be signed a letter similar to the one heretofore described at the request
of Mitchell and Eldridge. Earnest testified that after joining the
Amalgamated he received no further work as an extra bus driver
although other extra drivers received such work, and although on
several occasions he observed regular bus drivers "doubling up," or
19 McWilliams testified that on June 13 when asked by Eldridge or Mitchell to sign the letter, he said,
"I need the work . . If 1 have got to sign it to hold my job , I will sign it," and that neither Eldridge nor
Mitchell made any answer to this remark.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working two shifts. This circumstance and testimony that a few
weeks prior to Earnest's discharge, Eldridge made a derisive remark
about his drinking coca-cola with Pierce, "a union man," are the only
indications in the record that the respondents knew of Earnest's union
affiliations.
Earnest testified that he was discharged by Mitchell on July 31,
1939, professedly because he was not taking an interest in his work.
He admitted that he had been involved in two minor accidents, one
occurring a week or two before his discharge. Mitchell testified that
he discharged Earnest because he personally had observed him driv-
ing in a reckless manner on the day of his discharge, because Earnest
had lost interest in his work and had come to work late on several
mornings in succession. Mitchell also testified that he had warned
Earnest on the occasion of the earlier accident that if he were involved
in another accident he would be discharged. Earnest did not deny
that he received this warning, and admitted that he had been repri-
manded for coming to work late. He did not deny the charge of
reckless driving, observing, "Well, it could have happened Iguess,
but I don't remember it."
We find that the Taxi respondent, by the discharge of Earnest on
July 31, 1939, did not interfere with, restrain, and coerce its employees
in the exercise of the rights guaranteed in Section 7 of the Act. The
amended complaint, in respect to the allegations concerning Earnest's
discharge, is hereby dismissed."
C. The refusal to bargain collectively
I. THE APPROPRIATE UNIT
The complaint as amended alleges that the regular and extra bus
drivers employed by the Bus respondent constitute a unit appropriate
for the purposes of collective bargaining. The Bus respondent in
its answer admits that said unit is appropriate. The record, how-
ever, is obscure as to what employees of the Bus respondent are to be
considered "extra bus drivers." The employees of the Taxi respond-
ent constitute a reservoir of employees for the Bus respondent and
employees are promoted from driving taxicabs to driving buses.21
Taxi drivers sometimes, with the permission of the Bus respondent,
substitute on incomplete runs of regular bus drivers. When they do
so they are paid by the bus drivers themselves. When a taxi driver
drives a complete day's run in the place of a regular bus driver he is,
however, carried on the pay roll of the Bus respondent and is paid by
20 The amended complaint also alleged the discharges of several employees within the meaning of Section
8 (3) of the Act, by both respondents The record establishes that of these only Earnest was employed by
the Taxi respondent and, therefore, the complaint as addressed to the Taxi respondent with regard to these
employees is hereby dismissed
21 The earnings of bus drivers are higher than taxi drivers
TEXARKANA BUS COMPANY, INC. 595
the Bus respondent for the run. The Amalgamated urges that only
those employees of the Bus respondent who have worked a complete
day's run and have been paid by it, should be considered extra bus
drivers. This view of the unit finds support in a time sheet prepared
by the Bus respondent's office manager, E. E. Wright, which lists
regular and extra bus drivers employed as of and after May 15, 1939.
Certain drivers 22 are there listed as employed on the date when they
finished their first complete run for the Bus respondent, although it
appears that they worked on incomplete runs prior thereto. On July
12, 1939, in anticipation of a consent election to be conducted by the
Board, the Bus respondent agreed that certain of its drivers whose
status is in dispute 23 should be stricken from a list of extra and regular
bus drivers eligible to vote for the reason that these employees had
not driven a bus for the Bus respondent prior to June 15, 1939.24 We
shall interpret the phrase "extra bus drivers" to include only those
who have driven a complete day's run for the Bus respondent and who
have been paid by it.25
We find that regular and extra bus drivers, excluding those drivers
of the Bus respondent who have not finished a complete day's run,
constitute, and at all times herein material, constituted a unit appro-
priate for the purposes of collective bargaining, and that said unit
insures to employees of the Bus respondent the full benefit of their
rights to self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
2. Representation by the Amalgamated of a majority in the appro-
priate unit
The Amalgamated contends that on June 13, 1939, the Bus respond-
ent employed 23 regular and extra bus drivers, of whom 13 had
authorized the Amalgamated to represent them for the purposes of
collective bargaining. It is not disputed that 11 of these 13 employ-
ees had designated the Amalgamated as their representative. A. J.
Myrick and Raeburn S. King, two employees who had signed Amal-
gamated application cards, were called as witnesses by the Bus
respondent. Myrick testified that although he had signed an applica-
tion for membership in the Amalgamated he never paid any initiation
fee or dues and did not intend to designate the Amalgamated as his
bargaining agent. He testified that he had been accused of giving
information to Mitchell and Eldridge concerning the Amalgamated
and was told that he could prove the falsity of this accusation by
22 Leo Vann, E C Faulkinbury, Floyd Reynolds, Loyde Carroll
23 E C Faulkinbury, Floyd Reynolds, Loyde Carroll. For other reasons Leo Vann and William May
were also excluded
24 By reason of the Amalgamated's insistence upon the reinstatement of Robert L Whatley, Jr , as a pre-
condition thereto, the consent election was never conducted
22 That this definition of the appropriate unit does not affect the Amalgamated's majority on June 13,
1939, see Section III C 2, infra.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signing the Amalgamated application and that he did so solely for
that reason. Myrick, however, also testified:
Q. Did you sign this willingly, at the time?
A. Yes, sir, I signed it willingly, all right.
Q. And you intended it to be an application at the time
you signed it?
A. Yes, sir.
Q. But sometime later you changed your mind, is that right?
A. Yes, sir.
On June 13, 1939, Myrick, at the request of the Bus respondent,
signed one of the letters repudiating the Amalgamated to which
reference has been made above.26 King also testified that he never
paid any initiation fee and did not intend to designate the Amalga-
mated as his bargaining representative, although he had signed an
application. King also signed a letter repudiating the Amalgamated
on June 13. King admitted that he signed the application "because
some of them were signing them," and that he attended an Amalga-
mated meeting subsequent to his signing the letter of June 13. We
find, as did the Trial Examiner, that no weight is to be given to the
testimony designed to rebut the effect of the applications of Myrick
and King for Amalgamated membership. In reaching this result we
consider the knowledge that their employer did not wish them to be
represented by the Amalgamated which Myrick and King possessed
as the result of the letter of June 13, 1939, the contradictory nature
of their testimony, and the fact that they were in the employ of the
Bus respondent at the time when they testified at its request. We
find that on June 13, 1939, Myrick and King had in fact designated
the Amalgamated as their bargaining representative.
The Bus respondent further contends that five employees, not
enumerated by the Amalgamated, should be included in the appro-
priate unit. These are: William May, Leo Vann, E. C. Faulkinbury,
Floyd Reynolds, and Loyde Carroll. The Bus respondent asserts
that with these employees included in the unit, the Amalgamated, on
June 13, 1939, represented but 13 of 28 extra and regular bus drivers.
William May had taken an indefinite leave of absence on March 13,
1939, and admittedly was not carried as a driver on the books of the
Bus respondent. The Bus respondent did not dissent from the exclu-
sion of May from the bargaining unit in the proposed consent election
to which reference has been made because he "had quit the employ
of the respondent, Texarkana Bus Company, Inc." We find that
William May was not a regular or extra bus driver of the Bus re-
spondent on June 13, 1939.
It also appears that the Bus respondent did not dissent from the
exclusion of the other four disputed employees from the list of voters
26 See Section III A, supra.
•TEXARKANA BUS COMPANY, INC. 597
eligible to vote in the proposed consent election. Of these Faulkin-
bury, Floyd Reynolds, and Loyde Carroll were alleged at the time of
the proposed election to be ineligible to vote for the reason that they
had not driven a bus for the respondent, Texarkana Bus Company,
Inc., prior to June 15, 1939, but had, prior to that date been exclu-
sively in the employ of the Taxi respondent as taxicab drivers.
There is no testimony definitely indicating that any of the four
employees worked as an extra bus driver before June 13, 1939. More-
over, the time sheet prepared by the Bus respondent shows that none
of these employees worked a complete run on or before June 13, 1939,
and all are listed as "Employed" by the Bus respondent as of later
dates. Furthermore, Wright and Carroll admitted that Carroll had
not worked as an extra bus driver prior to June 13. Faulkinbury
admitted that he first did a complete run on June 16, 1939, but
asserted he might have worked "incomplete runs" prior thereto.
Vann had signed an application card for the Amalgamated which at
the time of the alleged refusal to bargain on June 13, 1939, was in
effect. Vann did not testify and appears to have been regarded by
the Amalgamated as a taxi driver.21 The Bus respondent agreed to
his' exclusion from the proposed consent election. Reynolds did not
testify but was similarly excluded from the eligible list for the pro-
posed consent election, and is listed by the Bus respondent as first
employed as a bus driver on July 6, 1939.
We find that Floyd Reynolds, Leo Vann, Loyde Carroll, and
E. C. Faulkinbury were not employees within the appropriate unit
on June 13, 1939.28
It is thus clear that on June 13, 1939, the Amalgamated represented
a majority of the Bus respondent's employees in the appropriate unit.
On this date, as appears below, the Bus respondent refused to bargain
with the Amalgamated. It appears that L. S. Medley and Burnyl
B. Lurry, Amalgamated members, were at later dates discharged for
cause.29 Other Amalgamated members may have since left the Bus
respondent's employ or discontinued their Amalgamated activity.
To the contrary, the Amalgamated may since have increased its
membership. It may reasonably be inferred that loss of membership
following June 13, 1939, or failure by the Amalgamated further to
extend its membership was the product of the Bus respondent's unfair
labor practices which cannot operate to change the bargaining repre-
sentative previously selected by the untrammelled will of the major-
E7 Vann, after the letters of Amalgamated repudiation were signed , requested the return of his application.
Vann is listed on the Bus respondent 's time sheet as employed as an extra bus driver on June 20, 1939
28 Had we included these employees in the appropriate unit the Amalgamated's majority would not have
been affected thereby, since Vann's authorization would have resulted in the Amalgamated' s representing
14 of 27 employees in the appropriate unit We do not give weight, as did the Trial Examiner , to the circum-
stance that Vann, Faulkinbury, and Reynolds signed the June 13 letters as showing that these men should
be in the unit . Office-manager E. E. Wright also signed such a letter because he did not know at the time
"whether [be ] was eligible to be a member of the Union or not."
fY See Section III F, infra.
323429-42-vol 26-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity.30 In any event , we will not engage in speculation as to the exact
effect of the Bus respondent 's unfair labor practices on the exercise
of the employees of the rights guaranteed by the Act, but will rely on
the proof of majority at the time of the refusal to bargain.
We find that on June 13, 1939, and at all times thereafter, the
Amalgamated was the duly designated representative for the pur-
poses of collective bargaining of a majority of the Bus respondent's
employees in the appropriate unit, and that pursuant to Section 9 (a)
of the Act, it was and now is the exclusive representative of all the
employees in, such unit for the purposes of collective bargaining with
respect to rates of pay, wages , hours of employment , and other con-
ditions of employment.
3. The refusal to bargain
On June 13, 1939, Elliott accompanied by a committee of the
Amalgamated, consisting of Pierce, Whatley, Brown, Westmoreland,
and Herndon, met with Mitchell and Eldridge. Elliott stated that
the Amalgamated represented a majority of the regular and extra
bus drivers and that he desired to negotiate a contract. As already
noted, Mitchell and Eldridge refused to enter into bargaining negotia-
tions until Elliott showed proof of the claimed majority by' divulging
the names of the drivers constituting the majority. This Elliott
refused to do. After a few minutes the parties agreed to adjourn
until the following morning in order more throughly to discuss the
problem.
That afternoon, after consultation with the Bus respondent's
attorney, the Bus respondent drafted and caused substantially all of
its employees to sign the letter repudiating the authority of the
Amalgamated to act as representative for the purposes of collective
bargaining. The following day Elliott and the same committee met
with the Bus respondent, and Elliott requested of Eldridge the letter
addressed to him or to "Whom it may concern" which had been
drafted and signed the previous afternoon. Eldridge said, "That is a
letter, Mr. Elliott, that we will present to you in due time; it is a
letter and a procedure that we have been instructed by our attorney."
Mitchell observed that this letter had been circulating before Elliott
"came up here." When Elliott commented, "You don't mean to
tell me you had this letter circulating here before I came here when
none of these boys didn't know who I was?", Mitchell spoke no
further. Both Mitchell and Eldridge admitted at the hearing that
the letter was prepared after consultation with their attorney on
June 13.
80 National Labor Relations Board v Bradford Dyeing Association (U. S A ) 60 S Ct 918 , Continental Oil
Company v. National Labor Relations Board, 113 F. (2d) 473, C. C A 10, enforcing 12 N L. R. B 789, National
Labor Relations Board v. Highland Park Manufacturing Co, 110 F (2d) 632 (C C. A. 4), enforcing 12 N. L
R B.922
TEXARKANA BUS COMPANY, INC. 599
It is apparent that the letter of June 13 could have had no purpose
other than the destruction of the majority alleged to have been
possessed by the Union. Eldridge, when asked by Elliott what the
purpose of the letter was, is said to have answered, "That is a legal
matter." This testimony is not specifically denied. Eldridge specifi-
cally admitted that employees were instructed to come to the office
of the Bus respondent and sign the letters of June 13. Eldridge
testified that his sole purpose in causing the letters to be signed was
to ascertain whether or not the Amalgamated represented a majority.
He admitted that as a result of the signing of the letters by all but
two of its employees the Bus respondent came to the conclusion that
Elliott did not represent a majority. Thereafter no further confer-
ences were held for the purposes of collective bargaining.31
We find that on June 13, 1939, and at. all times thereafter, the Bus
respondent refused to bargain collectively with the Amalgamated as
the exclusive representative of its employees in the appropriate unit
in respect to rates of pay, wages, hours of employment, and other con-
ditions of employment, and that the Bus respondent thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
D. The discriminatory change in work shifts
The amended complaint alleged that the respondents discrimina-
torily changed the work shifts of Robert L. Whatley, Jr., W. H.
Reynolds, W. B. Pierce and others, from day to night.31 Both
Whatley and Pierce started work for the Bus respondent on January
1, 1935, when it began business operations. Several witnesses testi-
fied in effect that the Bus respondent recognized length of service by
giving older drivers day runs which generally were considered prefer-
able to night runs. Some runs are also considered more difficult than
others because of faster time schedules or because older buses are used.
On or about June 12, 1939, Whatley and Pierce were shifted from a
day to a night run. About the same time or shortly thereafter several
Amalgamated members were transferred to less desirable routes. In
almost every case nonunion employees replaced Amalgamated mem-
bers on the more desirable shifts. Brown testified that though occa-
sionally the runs of individual drivers would be shifted, this mass shift-
ing was "unusual," because some of the oldest drivers were shifted.
The testimony of Brown was corroborated by McWilliams, Whatley,
Medley, Pierce, and-Herndon. With reference to his transfer Pierce
testified that Mitchell told him ". . . that I had talked too much
and that Mr. Whatley. and I had an easy run long enough, and that he
31 On June 17 , 1939, the Bus respondent agreed with the Amalgamated to ask the Board to conduct a
consent election.
33 The Trial Examiner dismissed the allegations in the complaint respecting W. H. Reynolds , who did
not testify . This ruling is hereby affirmed.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going to give us something harder." This testimony was not
denied by Mitchell. Mitchell admitted that he told Whatley, when
shifting him, "He wanted a good man to build up that run." Four
or five days later Mitchell replaced Whatley with Faulkinbury on the
new route . In this connection Mitchell testified as follows:
Q. So when Mr . Whatley left this run which you wanted to
build up by a good man you put a novice , Mr. Faulkinbury,
on it?
A. Yes, sir.33
Whatley testified that when he accused Mitchell of changing his route
because of the Amalgamated , Mitchell did not deny that this was true.
Although Mitchell denied that the shifting of Amalgamated em-
ployees was " unusual," we do not, in light of all the circumstances,
credit this denial . We find that the Bus respondent changed the work
shifts of Whatley and Pierce, as well as those of other Amalgamated
members, because of their activity in or affiliation with the Amalgam-
ated.
E. The discriminatory suspension of Pierce and Herndon
The amended complaint alleged that the respondents discrim-
inatorily suspended the employment of Earnest Herndon and W. H.
Reynolds for 15 days and of Pierce 45 days.34 Herndon, secretary-
treasurer of the Amalgamated, testified that he was laid off for 15 days
in September 1939 assertedly because he did not attend a safety
meeting. The day of this meeting Herndon arrived at the Bus re-
spondent's office at 2:15 p. in. in order to take his bus out at 2:50 p. m.
When he arrived at the office he noticed the following on the bulletin
board, "Safety meeting, night drivers 2 p. in., day drivers 3 p. m."
Herndon was a night driver who was not required to report for work
earlier than 2:50 p. m. when his bus was to be taken out.35 Herndon
'further testified that no notice of the safety meeting had been posted
the night before and that it was customary to give such notice.
McWilliams testified to the same effect, stating that notices of safety
meetings were customarily posted the day before. The Bus respond-
ent did not dispute the testimony of Herndon and McWilliams or
present any explanation for Herndon's suspension other than that set
forth above. A witness called by the respondents testified that he
had failed to attend a safety meeting without being disciplined there-
for.36 As already noted Herndon was a member of the Amalgamated
bargaining committee on June 13. The above facts, and other uncon-
83 The record indicates that Faulkinbury had never driven a complete run for the Bus respondent before
replacing Whatley.
84 The case of W. IL Reynolds is not discussed See footnote 29, supra
85 Day drivers were required to report for work a half hour earlier than starting time.
88 See Matter of Collins Baking Co. and Bakery & Confectionery Workers Local Union No. 486, 19 N. L R. B.
374.
TEXARKANA BUS COMPANY, INC. 601
tradicted testimony that employees on sundry occasions were not
disciplined for minor infractions of the rules, lead us to conclude that
Herndon was suspended because of his Amalgamated activities.
Pierce testified that on December 18, 1939, Mitchell informed him
that he was laid off for 45 days because he "had been talking too
much" and was "abusing his equipment." Pierce denied abusing his
equipment but admitted telling other employees that under the Fair
Labor Standards Act 31 the Bus respondent could cut wages to a mini-
mum of 30 cents an hour unless the Company was under contract with
a union calling for higher wages. He testified that Mitchell objected
to his telling the drivers that their wages could be cut and also ob-
jected to his telling them that it was unnecessary to purchase 1939
chauffeur licenses. About December 1, 1939, Mitchell instructed the
drivers that they would have to purchase such licenses. Pierce, ob-
taining advice to the contrary, advised the drivers that this was
unnecessary. The advice of Pierce turned out to be accurate and
none of the drivers purchased 1939 licenses. Mitchell did not deny
Pierce's testimony and testified that he laid off Pierce after he received
a report from S. G. Bonner, shop foreman, that Pierce had been
"rough on his bus or on the equipment." Bonner testified that on
about the 10th or 15th of December 1939 he reported to Mitchell as
to Pierce that "I didn't think he was cooperating with the shop and
I knew that he was neglecting his equipment." On cross-examination
Bonner was vague, evasive, and contradictory.38 Although Bonner
contended that Pierce had refused to report a badly worn tire, he
admitted that his assistants were required to check tires every night,
that although they failed to ascertain the alleged worn condition of
Pierce's tire they were not disciplined for their neglect, nor were they
disciplined for their failure to ascertain a broken motor bolt on
Pierce's bus which Bonner claimed Pierce had failed to report. More-
over, this testimony as to Pierce's failure to report defects in the con-
dition of his bus is utterly inconsistent with Bonner's testimony that
Pierce unnecessarily and repeatedly requested him to check his bus.
Bonner testified in part " . . . but I condemn him (Pierce) for taking
about two hours of my time away from the shop three or four times a
week to check things that is not necessary."
87 52 Stat. 1060 Amended, August 9. 1939, Public Act No. 344, 76th Congress.
38 Q What do you mean by abuse of equipment?
A Well, that covers a lot of things there
Q. Suppose you tell me what you mean by that?
A Well, I didn't make any note of any particular items, but in one case I could mention that he (Pierce)
had a tire that was pretty badly worn .. he told me he know the tire was about to go, but he wouldn't
report it . .
Q He told you that he deliberately refused to report it?
A. Yes, sir.
Q. Did he tell you that he would not or he did not report it?
A. Well, he said that he did not report it.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You were annoyed at his constantly asking you to check
his equipment and things like that, weren't you?
A. Yes, that is right.
Q. Don't you know that there wasn't a driver with the Tex-
arkana Bus Company that had the safety record that Mr. Pierce
had?
A. I don't doubt that.
Pierce was instrumental in the formation of the Amalgamated, was
one of the most active of the Amalgamated members, and was on the
Amalgamated committee which met with Mitchell and Eldridge on
June 13, 1939. It is apparent from the record , and we find, that
Mitchell 's resentment of Pierce 's "talking too much" was in reality
resentment directed toward Pierce 's activity in attempting to improve
the welfare of the bus drivers by concerted action. We find, as did
the Trial Examiner , that the contention of the Bus respondent that
Pierce failed to cooperate and abused his equipment is without merit.
We further find that the Bus respondent by suspending Herndon
and Pierce for 15 and 45 days respectively discriminated in regard
to their hire and tenure of employment, thereby discouraging mem-
' bership in the Amalgamated , and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
F. The discharges
The amended complaint alleged that William B. Pierce, Robert L.
Whatley, Jr ., John W. Earnest , George A. Goss , Burnyl B. Lurry,
and W. H. Reynolds were discriminatorily discharged within the
meaning of the Act.as
William B. Pierce . Following his 45-day suspension discussed
above, Pierce returned to work and was discharged on March 6, 1940,
about a month after his return. Pierce testified that Mitchell told
him that he was discharged because he had failed to pick up seven
passengers waiting at a transfer point to transfer to his bus, and
because on another occasion he had refused to accept a torn transfer.
According to Pierce 's testimony , the bus bearing the passengers in
question was supposed to arrive at the transfer point 5 minutes ahead
of Pierce 's bus, and when Pierce reached this junction he did not see
the bus there or any passengers and proceeded on his route. Jack
Smith , who drove the connecting bus, testified that when he arrived
at the transfer point he saw Pierce's bus at an intersection waiting
for the light to change and that he blew his horn to attract Pierce's
attention , but that Pierce evidently did not hear the horn and drove
89 The issues concerning Reynolds and Earnest and the allegations of the complaint in respect to them
have been disposed of in Section in B, supra.
TEXARKANA BUS COMPANY, INC. 603
on as the light changed. The transfer passengers had to wait, 15
minutes for the next bus. Mitchell was fully apprised of the above
facts.
Pierce admitted that he refused to accept a transfer which had
been torn in two from a passenger he had seen get off another bus.
There is printed on the face of the rejected transfer the following:
"This transfer not good if mutilated," and Pierce testified that he
had previously rejected other transfers which were mutilated without
being reprimanded. Pierce testified that he reported this incident to
Eldridge the following morning and was not reprimanded, and this
testimony stands undenied. It appears that if Pierce had accepted
the transfer he might have been deemed to have violated a rule of
the Company and have been liable to discharge, and that by rejecting
it, according to the Bus respondent, he was committing a dischargeable
offense. There was testimony that other drivers had rejected trans-
fers without being disciplined. We do not believe that this incident
was regarded by the Bus respondent as one of the causes for the
discharge of Pierce.
Mitchell further testified, however, that Pierce's discharge resulted
as a culmination of many incidents, most of which have been de-
scribed above,40 which made him "believe that the general conduct of
Pierce was becoming detrimental to the best interests of the Company."
Pierce had one of the best safety records of all the drivers. Eldridge
admitted that Pierce was a good driver until he "began to get ram-
bunctious with the equipment." 41 Mitchell admitted that Pierce
"was not altogether unsatisfactory."
We find that Pierce's activity on behalf of the Amalgamated resulted
in his discharge by the Bus respondent just as shortly before it had
caused his suspension.
We find that the Bus respondent by discharging William B. Pierce
on March 6, 1940, discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Amalgamated,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
Robert L. Whatley. Whatley was one of the first drivers hired by the
Bus respondent when it commenced operations. He was acting presi-
dent of the Amalgamated, and one of the Amalgamated's committee
which met with Mitchell and Eldridge on June 13, 1939. On June 12,
1939, one of the wheels of Whatley's bus scraped a curb, but, since, in
response to Whatley's inquiry, neither of the two passengers aboard
claimed injury, Whatley made no report of the incident. Two days
later, one of the passengers, J. J. Moore, informed Whatley that he
40 See Section III F, supra.
41 We have already found that Pierce did not abuse his equipment, Section III F, supra
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had sustained minor injuries from the accident of June 12 . That day,
June 14, Whatley reported Moore's claim to Eldridge . On June 16
Whatley reported for'work at 2:30 p. in. and was informed by Mitchell
that the latter wanted to see him. According to Whatley 's testimony,
Mitchell told him that failure to report an accident was a discharge-
able offense . Whatley replied that he had made the report as soon
as he heard from Moore that he had been injured . Whatley testified
that Mitchell nevertheless discharged him, and informed him that
Wright, the office manager , had his check ready. It is Mitchell's
testimony that when he questioned Whatley about the accident
Whatley got angry and said, "If you don't want me to work for you, I
will quit." The Bus respondent thus claims that Whatley quit, and
was not discharged.
Brown, McWilliams , and Goss testified that Whatley , upon leaving
Mitchell 's office, informed them he had been discharged . ' Bus drivers
are paid on the 5th and 20th of every month. The payment on the
5th is for the second half of the preceding month and that of the 20th
for the first half of the month. Brown testified that it was the custom
for the Bus respondent to pay an employee the day he was discharged,
whereas if an employee quit he would have to wait until the next pay
day in order to receive his check . If Brown's testimony is accurate,
the inference to be drawn is that Whatley was discharged on June 16,
since he received his check on that day . Wright, the office manager,
admitted that the drivers are not paid until the 5th or 20th of each
month, but asserted that the checks are signed on the 1st and 15th of
each month , and consequently Whatley's chock was already made out
on June 16 . Wright further testified that he was under instructions
to give any employee his check when he handed in his badge, and that
Whatley "made some remark like `I am through ' or something to that
effect, and he had his badge in his hand and he laid it on the desk, and
I don't remember what all was said." Wright further testified that
Mitchell told him after he had paid Whatley that the latter "had quit."
It is significant , however, that in a copy of a contract which the Bus
respondent alleged if was willing to enter into with Local #880 in
1937 and which, according to the admission of Eldridge, "was merely
the reduction to writing of the existing rules of the company," the
following language occurs : "Any driver leaving the employ of the
company on his own accord will wait until the next pay day for his
money. Any driver discharged with cause will be paid the day his
services are dispensed with." This language corroborates the testi-
mony of Brown , although Eldridge testified " that the rule was never
put into effect ." More significant , however, was the uncontradicted
testimony of Herndon , Goss, and Pierce that while Whatley was in
Mitchell 's office on June 16, Faulkinbury , an extra bus driver, was
making preparations to take over Whatley's bus. Goss testified
TEXARKANA BUS COMPANY, INC. 605
further that when he asked Faulkinbury what route he was going to
operate the latter replied "that he was pulling Garland" (the route
which Whatley had been operating). We therefore find, as did the
Trial Examiner, that Faulkinbury had been instructed by the Bus
respondent to take over Whatley's bus prior to the time that Whatley's
employment with the Bus respondent actually was terminated. The
weight of the evidence indicates, and we find, that Whatley was
discharged and did not quit on June 16.
Turning to the question of whether Whatley's failure to report
Moore's injury was the true reason for Whatley's discharge, we note
that Rule # 43 of the Bus respondent's "Book of Rules" provides in
part, "No driver is to assume when an accident report should or
should not be made. Your instructions are to make a full report to
the office of all accidents, regardless of extent." Whatley testified
that he had always interpreted this rule to apply only when a claim
was made by a passenger, and that he had reported the accident as
soon as he learned that Moore claimed injuries. The testimony is
clear that the Bus respondent regarded the claim of Moore as a minor
one. In fact, according to the uncontradicted testimony of Whatley,
Eldridge informed him "that he thought he knew Mr. Moore and it
was kinda a fake case-and didn't amount to anything." The evi-
dence also reveals that the Bus respondent's insurance carrier, which
settled Moore's claim for $50, was not handicapped in its investiga-
tion due to the fact that Whatley had reported the accident 2 days
after its occurrence, nor was any complaint made about the nature
of Whatley's work. Whatley, in fact, had a perfect safety record
prior to this occasion. Mitchell admitted that he overlooked viola-
tions of rules by the drivers "but after they keep doing it I fire them
for it." The Bus respondent produced no evidence that Whatley
violated any rule other than the violation mentioned above.
In the light of all the circumstances, giving particular consideration
to the fact that Whatley was one of the prime movers in the forma-
tion of the Amalgamated, and the temporary president thereof, as
well as a member of the Amalgamated's committee that met with
Mitchell and Eldridge on June 13, we find that Whatley was dis-
charged because of his Amalgamated activity.-
We find that the Bus respondent by discharging Whatley on June
16, 1939, discriminated in regard to his hire and tenure of employ-
ment, thereby discouraging membership in the Union, and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed then in Section 7 of the Act.
George A. Goss. Goss started to work for the Bus respondent in
October 1938 and for a year prior thereto had worked for the Taxi
respondent. Goss applied for membership in the Amalgamated on
May 30, 1939. As we have already noted, Eldridge, on or about
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 15, 1939, told Goss "that he knew that he could reach [Goss]
through Mr. Giles where be couldn't through himself" and ".
that he didn't want [Goss] to get mixed up in . . . the union.42 We
have also noted that Mitchell counseled Goss that " [the Union] would
be a good thing for the fellows to stay out of." 43 Goss testified that
on or about September 25, 1939, he asked Eldridge for permission to
lay off for 2 weeks beginning on October 22 for the purpose of going
to Detroit to look for a better position and that Eldridge had no
objection to his doing so. Goss further testified that about a week
prior to October 22 Mitchell also acquiesced when the same request
was directed to him. There is ample testimony to show that the
Bus respondent permitted other employees to take temporary leave
of absence in order to seek other employment, and in certain instances
permitted its employees to work temporarily at more profitable em-
ployment and then return to work with the Bus respondent. This
was admitted by Mitchell. The respondent's answer recites: ". . .
Goss in October 1939, advised the officials of the respondent bus
company that he wanted to quit and go to Detroit, Michigan, where
he thought he could get a better job-and voluntarily terminated his
connection with respondent bus company of his own free will and
accord-and evidently was unable to find more profitable employ-
ment and returned to Texarkana and asked the officials of the re-
spondent company to give him his job back, that his vacancy had
already been filled and the respondent bus company was unable to
put him back to work." Both Eldridge and Mitchell denied the
testimony of Goss and asserted at the hearing that Goss had volun-
tarily quit his employment. Much conflicting testimony was adduced
on this issue.44 The Bus respondent, however, did not deny Goss'
testimony that it was customary for employees who desired a short
leave of absence so to indicate by placing their names on the company
bulletin board. Goss testified that he wrote, "Goss off October 22
until" on the bulletin board prior to leaving for Detroit, and explained
that the word "until" meant until he returned.
4 2 See Section III A, supra.
43 Ibid
44 At the time of leaving Goss was given a letter of recommendation signed by Mitchell dated October
21, 19?9. The letter reads as follows
To Whom It May Concern,
The bearer, Mr. Allen Goss , has been in the employ of this company for a number of months as a
Bus driver.
Mr Goss' connection with this company has been satisfactory, and we feel sure that anyone desiring
the services of a competent driver, will find him honest and energetic.
Mr Goss has terminated his connection with this company voluntarily, for the purpose of going
East in search of more profitable employment.
Several of the respondents ' witnesses testified that Goss had quit his employment, but under cross-exam-
ination modified their testimony to the extent that they had not beard Goss say he had quit , but had in-
ferred he had quit from the fact of his leaving to look for more profitable employment. The Amalgamated
introduced several witnesses who testified that they understood that Goss had obtained leave to look for
more profitable employment.
TEXARKANA BUS COMPANY, INC. 607
Goss returned to Texarkana on November 3, 1939, and informed
Wright "that he was back and would be at work the next day," but
Wright informed him that he would have to see Mitchell before he
could return to work. Goss was unsuccessful in efforts to see Mitchell
until November 6 when the latter informed him, "that it didn't seem
fair to turn the boy off who had been working" his route. Mitchell's
reference was to one Loyde Carroll, an extra bus driver, who took
Goss' route when he left for Detroit. Goss further testified, and his
testimony is undenied by Mitchell, "that he (Mitchell) said to drop
around once in awhile and if there came an opening he would let me
go back to work." The records of the Bus respondent indicate that
three new bus drivers were hired after November 6, 1939, but Goss
was not put back to work.45 The Bus respondent made no complaint
about Goss' work, and advanced no explanation for its failure to
reinstate Goss subsequent to his return on November 3, 1939, other
than that set forth in its answer. It is apparent that the latter
contention that upon Goss' return "his vacancy had already been
filled and the respondent bus company was unable to put him back
to work" is without merit. Weighing all the circumstances of the
case, we find that the Bus respondent's failure to reinstate Goss was
due to his Amalgamated affiliation.
We find that the Bus respondent by refusing to reinstate George
A. Goss on November 6, 1939, discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in the Amal-
gamated, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed them in Section 7 of the Act.
L. S. Medley. Medley worked for the Bus respondent for about
a year and 5 months prior to his discharge on July 13, 1939. Medley
refused to sign the letter of June 13 because, as he informed Eldridge,
he had joined the Amalgamated. Rule #82 of the Bus respondent's
book of rules contains in part the following language, "Any employee
who-drinks any intoxicants-in the uniform of the Company, either
on or off duty, will in the discretion of the management, be discharged
for the first offense." Medley admitted that Mitchell had caught
him drinking beer while in a public cafe, in the uniform of the Bus
respondent and that 2 or 3 days later Mitchell informed him that he
was discharged for this reason. Medley and several Board witnesses
testified that some of the bus drivers frequently and openly drank
beer while in company uniform, and that no employee had been
discharged for this reason heretofore. Mitchell testified that if any
of his drivers so consumed beer while in company uniform he was,
unaware of it; that shortly after Medley began work for the Bus
45 The Bus respondent 's records also revealed that a new driver was hired on November 5, 1939 This
date is significant because it indicates the Bus respondent hired a new driver just after it became appraised.
of Goes'return to Texarkana and his desire to return to work.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent he caught Medley drinking beer and cautioned him about
it and that, upon being detected repeating the offense, Medley said,
"You never need worry about me drinking any more, and I won't
do it again." Mitchell further testified that the third time he caught
Medley drinking beer, he discharged him. Medley admitted sub-
stantially all of this testimony and that lie had assured Mitchell
"that it wouldn't happen again."
Although some of the testimony advanced by the Bus respondent
to establish the fact that Medley frequently drank intoxicants is not
credible," in view of the facts recited above we find that Medley was
not discharged because of his Amalgamated activity or affiliation.
Burnyl B. Lurry. Lurry worked for the Bus respondent for about
a year prior to his discharge on February 14, 1940.- He had also
worked as a taxi driver for the Taxi respondent. Lurry testified that
Mitchell discharged him because of his failure to report a minor acci-
dent which occurred on February 11, 1940. He admitted that he had
not complied with the company's rules by failing to report the accident.
Lurry further admitted that he had been involved in two accidents
prior to the one leading to his discharge and admitted that he had been
reprimanded about accidents or speeding on four different occasions,
and that on the occasion of the accident prior to the one resulting in
his discharge Eldridge warned him that he would be discharged if he
had another accident. D.• T. Lurry, father of Burnyl, testified as a
Board witness, and stated that he was responsible for getting his son
placed with the Bus respondent because he was a good friend of
Eldridge. D. T. Lurry also testified that in the summer of 1939,
Eldridge spoke to him on several occasions about the poor driving of
his son and about labor unions. Eldridge indicated that "he thought"
Lurry's son belonged to the Amalgamated and made certain anti-
union statements. On cross-examination, however, D. T. Lurry
admitted that his son Burnyl told him that he did not report his last
accident because" . . . he said that they had told him if any more
reports came in there he would lose his job anyhow, and so he just
thought he would drive for two or three days longer anyhow, before
the woman reported it." In view of the above facts we find that
Lurry was not discharged because of his Amalgamated activity or
affiliation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above,
occurring in connection with the operations of the respondents
described in Section I, above, have a close, intimate, and substantial
46 The testimony of a police officer that he had complained of Medley for drinking intoxicants was re-
pudiated by a letter from the Chief of Police of Texarkana , Texas , superior officer of this witness, stating,
"we have never had a complaint on the above -mentioned man "
TEXARKANA BUS COMPANY, INC. 609
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
Since we have found that the respondents have engaged in certain
unfair labor practices, we shall order them to cease and desist there-
from. Moreover, we shall order the respondents to take certain
affirmative action which we deem necessary to effectuate the policies
of the Act.
We have found that the Bus respondent discriminatorily changed
the work shifts of W. B. Pierce and Robert L. Whatley, Jr.; discrimina-
torily suspended the employment of Ernest Herndon and W. B.
Pierce for 15 and 45 days respectively; discriminatorily terminated
the employment of W. B. Pierce, Robert L. Whatley, Jr., and George
A. Goss. We shall order the Bus respondent (1) to offer Pierce,
Whatley, and Goss immediate and full reinstatement to their former
positions without prejudice to their seniority and other rights and
privileges; (2) to offer to Pierce and Whatley the routes operated by
them prior to their discriminatory transfers; (3) to make Pierce,
Whatley, and Goss whole for any loss of pay suffered by them by
reason of the Bus respondent's discrimination against them, by pay-
ment to each of them of a sum equal to the amount which he normally
would have earned as wages from the date of his termination of em-
ployment to the date of the offer of reinstatement less his net earnings 47
during such periods. We shall further order the Bus respondent
similarly to make whole Ernest Herndon and William B. Pierce for
any loss of pay they may have suffered by reason of their discrimina-
tory suspension for 15 and 45 days respectively, less their net earnings 48
during such periods.
Having found that the allegations of the amended complaint have
not been sustained in respect to the Taxi respondent, other than those
generally alleging a violation of Section 8 (1) of the Act, we shall
dismiss the complaint as to it except in this regard. We shall dis-
miss the complaint as well in so far as it alleges that the Bus respond-
47 By "net earnings" is meant earnings less expenses , such as for transportation , room, and board , incurred
by an employee in connection with obtaining work and working elsewhere than for the respondent, which
would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking
employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B. 440. Monies received for
work performed upon Federal , State, county, municipal or other work -relief projects are not considered as
earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the
amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for said work-relief projects See Matter of
Republic Steel Corporation and Steel Workers Organizing Committee, 9 N L R. B 219, enf'd as modified as
to other issues, Republic Steel Corporation v National Labor Relations Board, 107 F (2d) 472 (C C A 3),
cert. granted , 60 S Ct 1072.
11 Ibid
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent has violated Section 8 (1) or (3) of the Act with respect to John
W. Earnest, L. S. Medley, W. H. Reynolds, and Burnyl B. Lurry.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, and International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers of America, Local
#880, are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of William B. Pierce, Robert L. Whatley, Jr., George A. Goss,
and E. A. Herndon, Jr., the Bus respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. The regular and extra bus drivers of the Bus respondent, exclud-
ing those drivers who have not finished a complete day's run, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
4. Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America was on June 13, 1939, and at all times
since has been the exclusive representative of all the employees in such
unit, for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
5. By refusing to bargain collectively with Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees of
America, as the exclusive representative of its employees in the ap-
propriate unit, the Bus respondent has engaged in and is engaging in
an unfair labor practice within the meaning of Section 8 (5) of the Act.
6. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondents have not engaged in unfair labor practices
within the meaning of Section 8 (1) and (3) of the Act with respect to
John W. Earnest, W. H. Reynolds, Laurence S. Medley, and Burnyl
B. Lurry.
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-
TEXARKANA BUS COMPANY, INC. 611
spondent Texarkana Bus Company, Inc., Texarkana, Texas, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America, or
any other labor organization of its employees by discharging or re-
fusing to reinstate any of its employees, or in any other manner dis-
criminating in regard to their hire or tenure of employment, or any
term or condition of employment;
(b) Refusing to bargain collectively with Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of America
as the exclusive representative of its regular and extra bus drivers,
excluding those drivers who have not finished a complete day's run;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to George A. Goss immediate and full reinstatement to
his former or substantially equivalent position, and offer to William
B. Pierce and Robert L. Whatley, Jr., immediate and full reinstate-
ment to the positions they held prior to their discriminatory transfers
or to positions substantially equivalent thereto; without prejudice to
their seniority and other rights and privileges;
(b) Make whole each of the employees named in the preceding
paragraph for any loss of pay he may have suffered by reason of the
Bus respondent's discrimination against him, by payment to each of
them, respectively, of a sum of money equal to that which he would
have earned as wages from the date of his illegal termination of em-
ployment to the date of the offer of reinstatement, less his net earn-
ings,49 if any, during said period; deducting, however, from the
amount otherwise due each such employee, monies received by him
during said period for work performed upon Federal, State, county,
municipal or other work-relief projects; and pay over the amount, so
deducted, to the appropriate fiscal agency of. the Federal, State,
county, municipal, or other government or governments which supplied
the funds for said work-relief projects;
(c) Make whole E. A. Herndon, Jr. and William B. Pierce for any
loss of pay they have suffered by reason of their discriminatory
suspension of 15 and 45 days, respectively, by payment to them of
sums of money they would normally have earned as wages during
49 See footnote 47, supra
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said periods, less their net earnings,50 if any, during said period;
deducting, however, from the amounts otherwise due them, monies,
if any, received by them during said period for work performed upon
Federal, State, county, municipal, or other work-relief projects; and
pay over the amounts, so deducted, to the appropriate, fiscal agency
of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects;
(d) Upon request bargain collectively with Amalgamated Associ-
ation of Street, Electric Railway and Motor Coach Employees of
America, as exclusive representative of its regular and extra bus
drivers, excluding those drivers who have not finished a complete
day's run, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(e) Post immediately in conspicuous places at its premises, and
keep posted for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the Bus
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that
the Bus respondent will take the affirmative action set forth in para-
graphs 2 (a), (b), (c), and (d) of this Order; (3) that the Bus respond-
ent's employees are free to become or remain members of Amalgamated
Association of Street, Electric Railway and Motor Coach Employees
of America, and that the Bus respondent will not discriminate against
any employee because of membership or activity in that organization;
(f) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this Order what steps
the Bus respondent has taken to comply herewith.
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National -Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent
Two-States Transportation Company, Inc., Texarkana, Texas, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post immediately in conspicuous places at its premises, and
keep posted for a period of at leat sixty (60) consecutive days from
the date of posting, notices to its employees stating that it will not
60 Ibid.
TEXARKANA BUS COMPANY, INC. 613
engage in the conduct from which it is ordered to cease and desist in
paragraph 1 (a) of this Order;
(b) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this Order what steps
the Taxi respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondents have engaged in
unfair labor practices within the meaning of Section 8 (1) and (3) of
the Act, with respect to John W. Earnest, Laurence S. Medley, and
Burnyl B. Lurry.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.
323429-42-vol. 26-40