NATIONAL LABOR R. BD. v. Pennsylvania Greyhound Lines
Citation | 91 F.2d 178 |
Decision Date | 15 June 1937 |
Docket Number | No. 6007.,6007. |
Parties | NATIONAL LABOR RELATIONS BOARD v. PENNSYLVANIA GREYHOUND LINES, Inc., et al. |
Court | United 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.
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:
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.
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:
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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