National Lab. R. Bd. v. EASTERN MASSACHUSETTS ST. RY. CO., 5030

• Decision Date: 31 July 1956
• Docket Number: No. 5030,5089.,5030
• Citation: 235 F.2d 700
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, Respondent (two cases).
• Court: U.S. Court of Appeals — First Circuit

235 F.2d 700 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, Respondent (two cases).

Nos. 5030, 5089.

United States Court of Appeals First Circuit.

July 31, 1956.

COPYRIGHT MATERIAL OMITTED

Fannie M. Boyls, Washington, D. C., Attorney, with whom Theophil C. Kammholz, General Counsel, David P. Findling, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Maurice Alexandre, Attorney, Washington, D. C., on brief, for petitioner.

J. Joseph Maloney, Jr., Boston, Mass., for respondent.

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

WOODBURY, Circuit Judge.

Both of these petitions for enforcement of orders of the National Labor Relations Board rest basically upon the propriety of a finding made by the Board under § 9 (b) of the Labor Management Relations Act, 1947, 61 Stat. 143, 29 U.S.C.A. § 159(b) that only a company-wide unit of the Respondent's operating and maintenance employees was appropriate for the purpose of collective bargaining between the Respondent and those employees. The petitions also present questions of compliance with § 9(f) of the Act by one of the labor organizations involved, questions with respect to alleged discriminatory discharges of several employees, questions of union domination and support, questions of refusal to bargain, and a question of procedure.

The Respondent in previous incarnations owned and operated an electric street and inter-urban railway system regularly serving the eastern Massachusetts area and a few communities in Rhode Island. It now and for many years past has served the same area with motor buses. The gasoline it uses is purchased locally but is transported to Massachusetts from points outside the Commonwealth, it leases tires shipped to it from Ohio, and it purchases buses manufactured outside Massachusetts. The population of the area it serves is over 1,500,000 and its gross annual revenues for the years involved was far in excess of $6,000,000. The facts essential to the Board's basic jurisdiction in the premises are clearly established. Indeed, the Respondent does not contend that its activities do not subject it to the jurisdiction of the Board.

The Respondent maintains its central office in Boston where it employs about 25 persons including its principal officers. Following the pattern established by its predecessors the Respondent is divided into 11 operating divisions, each centered in a major city in the area and each under the supervision of a manager who has wide discretion and authority in the operation and control of his division. Although the Respondent operates some lines connecting two divisions, most of its business is not done between divisions but within divisions.

The employees in each division are organized into locals of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL. They have been similarly organized for many years and ever since 1906 the Respondent and its predecessor companies have had agreements with the separate locals. Since 1910 the local unions have been represented in bargaining with the Respondent by a committee called at first the Joint Conference Board and in later years the General Conference Committee (GCC hereinafter) consisting of the presidents of the 11 locals and sometimes a representative of the maintenance employees.¹ The Board, or Committee, has always negotiated single agreements covering all employees in the system but it has never been a party to a collective bargain agreement. Amalgamated was a party to the agreements until 1947, but since then the only contracting parties have been the Respondent and the eleven local unions.

Late in 1951 the GCC requested changes in the contract for the ensuing year and the parties began negotiations with respect to those changes. Many bargaining sessions were held, but in spite of efforts on both sides the parties reached an impasse over requests by GCC for changes in the existing pension plan. In this situation of stalemate, Amalgamated polled its membership throughout the Respondent's system and the employees voted almost unanimously to strike. The strike began on March 10, 1952, but nevertheless the Respondent and the GCC continued to bargain for the next three months.

On June 21, 1952, Amalgamated's local in the Respondent's Lowell Division, No. 280, voted to abandon the strike and on the following day all but 19 of its members returned to work. Two days later the GCC notified the Lowell Local, as we shall refer to it hereinafter, that it would ask Amalgamated to revoke that local's charter and on the next day the GCC did so. The Lowell Local's executive board thereupon voted to enter into a contract of its own with the Respondent and on June 25 its representatives met with officers of the Respondent and advised them of the Lowell Local's desire for a separate contract. The Respondent immediately drafted a contract with the Lowell Local containing the same provisions as its 1950 contract with all the locals, except for a wage increase of $.15 an hour. That contract was signed before the meeting broke up. Two days later, on June 27, the Respondent wrote letters to the 19 members of the Lowell Local who had not returned to work with the others informing them that they were "suspended indefinitely," a euphemism for "fired" frequently employed by the Respondent in its dealings with its employees.

On July 8 a majority of the employees in all eleven divisions voted to end the strike provided the Respondent reinstated the 19 "suspended" Lowell strikers, and after some hesitation the Respondent, contending that reinstatement of those men was a matter to be settled only with the Lowell Local, agreed on July 13 to do so. On July 15 the strike ended and all the strikers returned to work.

In the meantime on June 30 Amalgamated suspended the Lowell employees who had voted to abandon the strike on June 21 and returned to work on June 22 and put its vice-president O'Brien in charge of the Lowell Local as trustee. On July 2 O'Brien advised the Respondent of Amalgamated's action putting him in charge of the Lowell Local but it is not altogether clear that the notice he gave was sufficient to inform the Respondent of his and Amalgamated's position that from then on O'Brien officially represented the Lowell employees in place of one Casserly, the duly elected president of the Lowell Local. At any rate, negotiations during the rest of the summer and early fall between the GCC and the Respondent came to nothing for the reason that the GCC insisted upon bargaining for the Respondent's employees in all its divisions whereas the Respondent asserted that its contracts were with the separate locals, that it already had a contract with the Lowell Local, and that it would not recognize the GCC as the bargaining representative for its Lowell employees.

On October 23 Amalgamated expelled Casserly, the suspended president of the Lowell Local, and thereafter on November 1 most of the members of the Lowell Local severed their connection with Amalgamated and retaining Casserly and their other old officers organized an unaffiliated union of their own which they called Transit Workers Local No. 1. This union took over and continued the Lowell Local's contract of June 25 with the Respondent, and the Respondent recognized it as the bargaining representative of its Lowell employees. Meanwhile the Lowell Local continued as an entity under the trusteeship of Amalgamated's vice-president O'Brien and an assistant, an employee named MacLean, whom some 15 or 16 of the 19 Lowell employees who continued on strike after their fellows had returned to work had appointed to represent them in subsequent dealings with the Respondent.

On the facts just summarized the Board, one member dissenting, found in the decision upon which it based the order which it asks us to enforce in its first petition, No. 5030, that in view of the integrated nature of the Respondent's operations and its long practice of bargaining with a single agent (the GCC) representing the operating and maintenance employees in all its 11 divisions, a bargaining unit consisting of its Lowell employees alone was inappropriate, that the appropriate unit was company-wide, and that the bargaining representative of a majority of the employees in that unit was Amalgamated's 11 locals acting jointly through the GCC. From this the Board said that it followed, as alleged in the complaint, "that when the Company dealt with the Lowell Local as representing a mere fraction of this appropriate unit, at the very time when the Association meaning in context Amalgamated's 11 locals acting together through the GCC had the right, and in fact was insisting upon exercising it, to represent all the Company's employees, its conduct constituted a refusal to bargain with the majority representative in the appropriate unit and therefore a violation of Section 8(a) (5) of the statute." Then the Board went on to say: "Similarly, the recognition which it accorded the Lowell Local as bargaining agent in the inappropriate grouping of a minority of the employees, at a time when it was under obligation to bargain with the duly designated majority representative in the appropriate unit, was unlawful assistance to the Lowell Local and therefore a violation of Section 8(a) (2)."

The Board's finding that the Respondent unlawfully dealt with and thereby unlawfully contributed support to the Lowell Local and later to Transit Workers Local No. 1 in violation of § 8(a) (2) of the Act follows as a logical corollary from the Board's basic finding that the Respondent violated § 8(a) (5) of the Act by refusing to bargain collectively with the company-wide employee unit it found to be appropriate for that purpose. We do not understand the Respondent seriously to argue to the contrary. But before we consider the propriety of the Board's...