Trafford Coach Lines

National Labor Relations Board - Board Decisions

May 29, 1952

99 N.L.R.B. 399 (N.L.R.B. 1952)

TRAFFORD COACH LINES 399
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
ANTHONY C. MARKITELL AND JOHN, H. DENT, PARTNERS, D/B/A
TRAFFORD COACH LINES, AND TRAFFORD COACH LINES and AMALGAM-
ATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH
EMPLOYEES OF AMERICA, DIVISION 1214. Case No. 6-CA-281.
May 29,1952
Supplemental Decision and Order
On January 3, 1952, the Board issued a Decision and Order in the
above-entitled proceeding, finding, among other things, that the evi-
dence was insufficient to support the complaint allegation that the dis-
charge of employee DiRito constituted a violation of Section 8 (a)
(3) of the Act.' On March 3, 1952, the General Counsel filed a mo-
tion for reconsideration, requesting the Board to reconsider its deci-
sion and to find a violation as to DiRito. None of the other parties
filed any documents in response to the motion. The Board has con-
sidered the motion and, after reevaluating the entire record, makes
the following finding and conclusion respecting DiRito.
The General Counsel's motion is based on the ground that the Board
has accorded insufficient weight to the evidence pointing to illegal
motivation in the discharge of this employee. The General Counsel
argues particularly the persuasiveness of an affidavit, received in
evidence, given by Markitell to the Board agent who investigated the
charge before issuance of the complaint. When all four of the em-
ployees involved in this case-Cole, Taylor, Hopkins, and DiRito-
were discharged, Markitell was the owner of the bus company for
which they worked, and was himself named as a party Respondent?
In our original decision we found that Cole, Taylor, and Hopkins
were discharged because of their persistent activities on behalf of the
Union generally. As it was clear that their grievance committee pro-
test on behalf of William Miller on September 27 was the provocative
incident giving rise to Markitell's ire, we did not adopt the Trial
Examiner's specific finding that they were discharged for the addi-
tional reason that they had engaged in a short-lived strike 3 weeks
earlier. Our doubt as to the sufficiency of the evidence supporting the
complaint allegation respecting DiRito stemmed from the fact that
he was in the hospital, and therefore did not participate in the griev-
ance protest when the group was discharged. We were hesitant to
2 97 NLRB 938.
C As set forth in detail in the Intermediate Report, in the affidavit in question Markitell
stated that all four employees were discharged because they were responsible for a strike
on September 5 and 6, 1949.
99 NLRB No. 69.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find illegality in DiRito's discharge after his illness if such a finding
had to rest entirely on Markitell's admission in his affidavit to the
Board agent, an admission which conflicted directly with his oral
testimony at the hearing.
After carefully reexamining the entire record, however, we are con-
vinced that the statements made by Markitell in his repudiated affi-
davit. are corroborated by .the- direct and. correctly credited testimony
of Business Agent Welsh as to his conversation with Markitell on
September 27. Markitell told Welsh that the "committee" was dis-
charged because it gave him "too many headaches." Thus he neither
limited the discharge to Cole, Taylor, and Hopkins nor the cause of
this action to the union activity of that day. His statement to Walsh
therefore is consistent with and corroborates his later explanation,
made in the affidavit, that he discharged all four employees, including
DiRito, because of their earlier strike activity. One of the "head-
aches" which he attributed to DiRito was the September 5 strike; 3
as to the other three dischargees, the "headaches" also included their
later attempt to gain reinstatement for William Miller. This logical
and related appraisal of all the evidence finds additional support in
the fact that, although Carl Miller did join in the committee action on_
September 27, he was not discharged because, as Markitell's affidavit
also explains, Carl Miller had not participated in the earlier strike.4
Against this affirmative evidence of illegal motivation in the discharge
of DiRito, including Markitell's unequivocal admission of an intent to
rid himself of an active union representative, DiRito's hospital stay of
which the Respondent was at least aware does not appear, as the Re-
spondent asserts, to have been the true reason for his discharge. Upon
the entire record, therefore, we are satisfied and find, as did the Trial
Examiner, that like Cole, Taylor, and Hopkins, DiRito was discharged
because of his activities on behalf of-the Union, and that the Respond-
ent thereby violated Section 8 (a) (3) of the Act.
Accordingly, we shall grant the General Counsel's motion, and shall'
reverse our previous Order to the extent that it dismissed the com--
plaint as to DiRito.
Order
IT IS HEREBY ORDERED that the General Counsel's motion for recon-
sideration be, and it hereby is, granted.
IT IS HEREBY FURTHER ORDERED that our previous Order, dated Jan-
uary 3, 1952, is reversed to the extent that it dismisses the allegation
of the complaint as to DiRito, and that said Order be further modified
® Another portion of Markitell 's affidavit, not set forth in the Intermediate Report, reads
as follows : "When DiRito left the hospital in October 1949, he visited me and I told him
he was discharged because be was one of those responsible for the wildcat strike on Labor
Day and because he failed to notify the company be was going to the hospital."
4 Carl Miller is also the father of William Miller.
METROPOLITAN AUTO PARTS, INCORPORATED 401
by the insertion therein, and in Appendix A attached thereto, of the
name "Bennie DiRito" immediately after the names "William Cole,"
"George Hopkins," and "Harry Taylor," wherever they appear in
said Order and Appendix A.
MEMBERS- STYLES and PETERSON took'no ,part in the consideration of
the--above Supplemental Decision awl Order
METROPOLITAN AUTO PARTS, INCORPORATED and LOCAL 841, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, AND LODGE 1898, DISTRICT 48, IN-
TERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Case
No. 1-RC--2664. May 29, 1952
Decision and Order
Pursuant to a stipulation for certification upon consent election by
the Employer and Petitioner, an election was held under the direction
of the Regional Director on March 13, 1952. At the close of the elec-
tion, the tally of ballots showed that of approximately 14 eligible
voters, 13 cast valid ballots, of which 4 voted for the Petitioner, 9
against the Petitioner, and 2 were challenged. The Petitioner filed
timely objections to conduct affecting results of the election.
The, Regional Director caused, an-investigation to be made of the
Petitioner's objections, and on April 8, 1952, issued his report in which
he found merit in the Petitioner's objections and recommended that
the election be set aside. Thereafter, the Employer duly filed excep-
tions to the Regional Director's report.
Upon the entire record in this case, the Board 1 finds :
The Petitioner objected to, the election^,on the ground that the Em-
ployer interfered with the election by making an antiunion speech on
company time and property while denying the Petitioner an equal
opportunity to address the employees.
The Regional Director's investigation disclosed the following facts:
On March 7, 1952, the Petitioner mailed to the Employer a regis-
tered letter which stated, among other things, that as an election was
scheduled for March 13, 19521
... we are hereby demanding that, in the event the Company
addresses these employees on Company time and property, we be
granted the same privileges.
a Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its, powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Styles and Peterson].
99 NLRB No. 73.