NATIONAL LABOR R. BD. v. Pennsylvania Greyhound Lines

Citation91 F.2d 178
Decision Date15 June 1937
Docket NumberNo. 6007.,6007.
PartiesNATIONAL LABOR RELATIONS BOARD v. PENNSYLVANIA GREYHOUND LINES, Inc., et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Robert B. Watts, Charles Fahy, Thomas I. Emerson, Philip Levy, and Stanley S. Surrey, all of Washington, D. C., for petitioner.

Ivan Bowen, of Minneapolis, Minn., and Charles H. Young, of New Castle, Pa. (M. H. Boutelle, of Minneapolis, Minn., of counsel), for respondents.

Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.

BUFFINGTON, Circuit Judge.

The proposed order of the National Labor Relations Board, so far as clauses 1, 2, 3, and 5 are concerned, is approved. Sections (a) and (b) of clause 4 are approved, but approval is withheld from sections (c) and (d) of said clause, which read:

"(c) Withdraw all recognition from the Employees Association of the Pennsylvania Greyhound Lines, Inc., as representative of their employees, including the employees of the Pennsylvania Greyhound System, for the purpose of dealing with respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work;

"(d) Post notices in conspicuous places in all of the places of business wherein their employees, including employees of the Pennsylvania Greyhound System, are engaged, stating that said Association is so disestablished and that respondents will refrain from any such recognition thereof."

The majority of the court feels that sections (c) and (d) should not be enforced because there is no warrant in the act for such action. No election has been held; the union enjoined has not been notified or heard, but, in advance of an election by the men, said union is for all practical purposes outlawed, and that without hearing.

BIGGS, Circuit Judge (concurring opinion, but dissenting in part).

Though I concur in the opinion of the court to the extent to which that opinion goes in enforcing the order of the National Labor Relations Board, none the less I dissent from that portion of the opinion which withholds approval of subsections (c) and (d) of paragraph (4) of the order. I think that the order of the Board should be enforced in full for the following reasons. The Board filed a petition in this court pursuant to authority conferred upon it by the provisions of the Act of Congress approved July 5, 1935 (Public No. 198, 74th Congress, 49 Stat. 453, § 10 (e), 29 U.S.C.A. § 160 (e) to the end that this court should compel the respondent corporations to comply with the provisions of an order of the Board requiring the respondents to cease and desist from certain labor practices found by the Board to be unfair and affecting interstate commerce within the meaning of the National Labor Relations Act. The respondents do not object to complying with the requirements of the first three paragraphs and the fifth and last paragraph of the Board's order, but they do object to carrying out the provisions of the fourth paragraph thereof for the reasons hereinafter set forth. The fourth paragraph of the order is as follows:

"4. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

"(a) Offer to Chester Lehman, Albert McKelvey, Stephen Mitchell, Lester Moberley, and John Rihr immediate and full reinstatement, respectively, to their former positions, without prejudice to their seniority or other rights and privileges previously enjoyed:

"(b) Make whole said Chester Lehman, Albert McKelvey, Stephen Mitchell, Lester Moberley and John Rihr for any losses of pay they have suffered by reason of their discharge by payment, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, computed at the wage rate stated in the findings of fact as the rate each was paid at the time of discharge, less the amount which each earned subsequent to discharge, as shown in the findings of fact:

"(c) Withdraw all recognition from the Employees Association of the Pennsylvania Greyhound Lines, Inc., as representative of their employees, including the employees of the Pennsylvania Greyhound System, for the purpose of dealing with respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work:

"(d) Post notices in conspicuous places in all of the places of business wherein their employees, including employees of the Pennsylvania Greyhound System, are engaged, stating that said Association is so disestablished and that respondents will refrain from any such recognition thereof:"

The complaint upon which the order is based alleges that the respondent Pennsylvania Greyhound Lines, Inc., through wholly owned subsidiaries, owns and operates a motorbus transportation system for the transportation of passengers and express for hire between points outside of the state of Pennsylvania and Pittsburgh, and that the respondent Greyhound Management Company, Inc., in conjunction with Pennsylvania Greyhound Lines, Inc., operates and controls a garage and repair shop at which the motorbusses of Pennsylvania Greyhound Lines, Inc., are serviced and repaired, to the end that they may be used for transportation of passengers and express between Pittsburgh, Pa., and points outside of the state of Pennsylvania. The complaint further alleges that seven employees at the Pittsburgh garage, engaged in maintenance and repair of the motorbusses, were discharged in result of their activities in joining and aiding a union known as Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, and that the respondents and their subsidiaries fostered and promoted a company union known as the Pennsylvania Greyhound Lines Employes Association, interfering in this association's affairs through activity in connection with elections held to select representatives. The complaint ends with the allegation that the acts complained of on the part of the respondents constituted violation of sections 7 and 8, respectively, of the National Labor Relations Act (29 U.S.C.A. §§ 157, 158).

The Board held extensive hearings in respect to these charges and found that the facts alleged in the complaint were true. It thereupon entered the order heretofore referred to.

It is necessary, however, to consider in some detail the arguments of the respondents and the effect of the order of the Board which it now seeks to have this court enforce.

At the oral argument and upon the respondents' briefs it was urged upon behalf of the respondents that they were not employers within the terms of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.). The substance of this argument is that the discharged persons were not employees of the respondents, or either of them, but were employees of certain operating subsidiaries. There was ample evidence before the Board to sustain its finding that the discharged employees were in fact mainly employed by the respondent Pennsylvania Greyhound Lines, Inc., for the benefit of subsidiary corporations engaged in actual transportation operations in interstate commerce. It is further urged by the respondents that the National Labor Relations Board had no jurisdiction to act in the premises because no charge was filed with it on behalf of any existing labor organization, and that the charge was not filed on behalf of any employee of the respondents, or either of them. An examination of the charge shows that it purports to be filed by "Local No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, by Charlton Ogburn, Arthur E. Reyman, Attorneys for Petitioners," and that it was verified by Charlton Ogburn. There is testimony to the effect that the union was not fully organized, but there is evidence to the effect that some of the discharged men belonged to it. I think this charge was sufficient within the meaning of section 10 (b) of the act (29 U.S.C.A. § 160 (b). The complaint of the Board was based upon it and notice of hearing of this complaint was duly given to the respondents. But if there be any question of sufficiency of proof of existence of Local No. 1063 that question was disposed of by the parties themselves by the stipulation of December 7, 1935, in which all joined. It is the further contention of the respondents that the services of the discharged employees were dispensed with not for activity in fostering and aiding the union, Local No. 1063, but because of their inefficiency in connection with certain road failures of vehicles, because an accident had occurred at Warren, Ohio, caused by defective brakes, and because so much work had been transferred from the Pittsburgh garage that it was desirable to reduce the force of employees. The Board found, however, that five of the seven men who were discharged were discharged by the respondents for their activities in connection with the union, Local No. 1063, and that this was an unfair labor practice affecting interstate commerce within the meaning of section 8, subdivision (1), and section 2, subdivisions (6) and (7), of the act (29 U.S.C.A. §§ 158 (1), 152 (6, 7). It is further urged by the respondents as a defense to the order that the term "employee" within the meaning of section 2, subdivision (3), of the act (29 U.S.C.A. § 152 (3) will include only discharged employees who have not obtained other regular and substantially equivalent employment; and that the discharged men, or at least some of them, have obtained such employment. The Board found that the five men in question had not obtained substantially equivalent...

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5 cases
  • National Labor Relations Board v. Crowe Coal Co., 435
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 26, 1939
    ...Rand, Inc., 2 Cir., 94 F.2d 862, certiorari denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 3 Cir., 91 F.2d 178; National Labor Relations Board v. J. Freezer & Sons, Inc., 4 Cir., 95 F.2d 840; National Labor Relations ......
  • Hoffman Plastic Compounds v. Nat'l Labor Bd.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 17, 2000
    ...award any wages earned in the interim in another job, see Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enf'd, 91 F.2d 178 (CA3 1937), rev'd on other grounds, 303 U.S. 261 By contrast, the Court of Appeals' award of a minimum amount of backpay in this case is not sufficien......
  • E. Brunswick European Wax Ctr., LLC v. Nat'l Labor Relations Bd.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 11, 2022
    ...Flooring, 356 NLRB 11, 12 (2010) (citing Pa. Greyhound Lines, Inc., 1 NLRB 1, 52 (1935), enforcement denied in relevant part, 91 F.2d 178 (3d Cir. 1937), rev'd, 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831 (1938) ). Such notices serve several important functions, including counteracting the eff......
  • National Labor Relations Board v. Pennsylvania Greyhound Lines
    • United States
    • U.S. Supreme Court
    • February 28, 1938
    ...the Employees Association and publication of notice of withdrawal, and directed that in other respects the Board's order be enforced. 3 Cir., 91 F.2d 178. The court thought that the Board was without authority to order the employers to withhold recognition from the Association, without noti......
  • Request a trial to view additional results
1 books & journal articles
  • Battle on the Benches: the Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942
    • United States
    • Seattle University School of Law Seattle University Law Review No. 23-02, December 1999
    • Invalid date
    ...198. Id. 199. Id. at 427. 200. Id. 201. Id. at 427-28. 202. Id. at 428. 203. Id. 204. See, e.g., NLRB v. Pennsylvania Greyhound Lines, 91 F.2d 178 (3d Cir. 1937); see also IRONS, supra note 19, at 205. Interview with Emerson, supra note 193. 206. Id. 207. Id. In the Carter Coal case, the Su......

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