Almeida Bus Lines v. Curran, 4769.

• Decision Date: 21 January 1954
• Docket Number: No. 4769.,4769.
• Citation: 209 F.2d 680
• Parties: ALMEIDA BUS LINES, Inc. v. CURRAN et al.
• Court: U.S. Court of Appeals — First Circuit

209 F.2d 680 (1954)

ALMEIDA BUS LINES, Inc. v. CURRAN et al.

No. 4769.

United States Court of Appeals, First Circuit.

January 21, 1954.

Joseph C. Wells, Washington, D. C., (J. Burke Sullivan, Boston, Mass., King, & King, Washington, D. C., and Graham, Gargan & Sullivan, Boston, Mass., on the brief) for appellant.

Daniel P. Collins, Boston, Mass., (Harry Demeter, Jr., Boston, Mass., on the brief) for Massachusetts Labor Relations Commission, appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The appeal in this case is from a judgment of the district court on June 23, 1953, dismissing a complaint for lack of jurisdiction.

Almeida Bus Lines, Inc., plaintiff-appellant herein, is a Massachusetts corporation engaged in the business of transporting passengers and freight by motor bus within the Commonwealth. Under special contracts it also transports passengers both within and without the Commonwealth. In 1952 appellant's gross revenue from all operations amounted to nearly $500,000, of which hardly more than .3 per cent was attributable to its interstate activities. The company, however, purchases much of its supplies and equipment from sources outside the Commonwealth.

For several years past, appellant has resorted to various legal maneuvers designed to avoid its being brought to account either under the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., or under the State Labor Relations Law of Massachusetts, Mass.G.L. (Ter.Ed.) Ch. 150A, because of certain alleged unfair labor practices.

In June, 1948, Local No. 59 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, filed a representation petition with the National Labor Relations Board at its regional office in Boston, seeking certification for a unit of respondent's bus drivers. This petition was later withdrawn on the strength of advice from a field examiner of the national board to the effect that that board would not assert jurisdiction over Almeida because of the local character of its operations, following a policy applied in Duke Power Co., 77 NLRB 652 (1948). This information was confirmed by a letter from the field examiner to Almeida dated July 28, 1948. Local 59 of the Teamsters' union thereupon petitioned appellee, the Labor Relations Commission of Massachusetts, for certification, but such certification was denied by the state commission because Local 59 failed in a state-conducted election.

On August 26, 1949, the Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America, Division 1442, one of the appellees herein, was certified by the state commission as the bargaining representative of Almeida's employees, following an election conducted by the commission pursuant to a representation petition filed by the said union under the state act.

In October, 1949, appellee union (Amalgamated Association, etc.) filed a charge with the state commission alleging that Almeida had committed an unfair labor practice in its refusal to bargain with the union pursuant to the certification. The state commission on February 27, 1950, entered an order requiring Almeida to bargain with the union. Upon Almeida's refusal to comply with this order, the state commission obtained an enforcement decree from the state Superior Court on December 1, 1950, from which decree Almeida appealed to the Supreme Judicial Court of Massachusetts. That appeal, so far as appears, is still pending before the Supreme Judicial Court.

Meanwhile, on September 28, 1950, certain employees of Almeida went out on strike in consequence of Almeida's alleged refusal to bargain. On January 3, 1951, appellee union filed another charge with the state commission, asserting that Almeida on or about December 21, 1950, had refused to reemploy the employees who had struck on September 28, 1950, thereby in effect being guilty of the unfair labor practice of discriminatorily discharging such employees contrary to § 4(3) of the state act. Almeida thereupon moved that the state commission dismiss this latter charge on jurisdictional grounds. Apparently this motion to dismiss was grounded upon an opinion of the National Labor Relations Board on October 3, 1950, in Local Transit Lines, 91 NLRB 623, in which case the national board announced new standards where-under it would thenceforth assert jurisdiction over public transportation systems like that of Almeida.

In consequence of the foregoing, appellee union deemed it expedient to seek relief before the national board.

Accordingly, on February 26, 1951, Amalgamated filed with the National Labor Relations Board an original charge against Almeida. The charge was subsequently amended, and upon the amended charge the national board issued its complaint against Almeida on June 19, 1951. The complaint alleged that Almeida had committed an unfair labor practice on or about September 22, 1950, and at all times thereafter, by refusing to bargain collectively with the Amalgamated union, though that union was the duly designated bargaining representative of the employees; that Almeida's employees at their New Bedford terminal went on strike on September 28, 1950, in consequence of this unlawful refusal to bargain; that on or about December 21, 1950, certain striking employees listed by name applied for reinstatement; that Almeida on or about December 21, 1950, refused, and thereafter continued to refuse, to reinstate said employees for the reason that they were adherents of the Amalgamated union, or had participated in the strike, or had refused to work during the strike. Almeida filed an answer to the complaint, denying the commission of any unfair labor practices.

A trial examiner of the national board held a hearing on the complaint and answer in July, 1951. Thereafter the trial examiner filed his intermediate report in which he found that Almeida was subject to the National Labor Relations Act, and that it had committed the unfair labor practices substantially as alleged in the complaint; and recommended that the board enter an order in the usual terms directing Almeida to bargain collectively with Amalgamated upon request, and to reinstate with back pay the group of striking employees.

The case came before the national board upon Almeida's exceptions to the intermediate report. In its exceptions Almeida contended that the complaint should be dismissed by the national board on the ground that it would not effectuate the policies of the act for the board to assert jurisdiction over Almeida's operations in this case. As observed by the national board in its decision, Almeida in effect argued for an application of the rule of equity and fairness which the board had applied in Screw Machine Products Co., 94 NLRB 1609 (1951).

The national board found merit in Almeida's contention and entered an order dismissing the complaint. The reasons for this dismissal were explained in its decision as follows:

"We are convinced from its history that the circumstances surrounding the Teamsters\' withdrawal of its representation petition in 1948 reasonably led the Respondent to believe that its operations would not be subject to assertion of the Board\'s jurisdiction and therefore justified the

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