National Labor Rel. Bd. v. Norfolk Southern Bus Corp.

• Decision Date: 31 March 1947
• Docket Number: No. 5521.,5521.
• Citation: 159 F.2d 516
• Parties: NATIONAL LABOR RELATIONS BOARD v. NORFOLK SOUTHERN BUS CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

159 F.2d 516 (1946)

NATIONAL LABOR RELATIONS BOARD v. NORFOLK SOUTHERN BUS CORPORATION.

No. 5521.

Circuit Court of Appeals, Fourth Circuit.

December 30, 1946.

Writ of Certiorari Denied March 31, 1947.

Louis Newman, Atty., National Labor Relations Board, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Owsley Vose and Jerome Wohlmuth, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

James G. Martin, of Norfolk, Va. (S. Burnell Bragg and Arthur J. Winder, both of Norfolk, Va., on the brief), for respondent.

Before PARKER, SOPER and DOBIE, Circuit Judges.

Writ of Certiorari Denied March 31, 1947. See 67 S.Ct. 1085.

PARKER, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board against the Norfolk Southern Bus Corporation, hereafter called the company, a subsidiary of the Norfolk Southern Railway Company. The Board affirmed findings of a Trial Examiner to the effect that the company in violation of sections 8(1) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 5), had interfered with, restrained and coerced employees in the exercise of the rights of self organization and collective bargaining and had refused to bargain collectively with a union which the Board had certified as the bargaining representative of certain employees in its Virginia division. It entered an order in the ordinary form directing the company to cease and desist from its unfair labor practices and bargain with the union. The company opposes enforcement of the order on two grounds: (1) that the findings as to interference, restraint and coercion are not supported by the evidence, and (2) that the Virginia division was not an appropriate bargaining unit for the employees represented by the union and that the certification by the Board was void as being an arbitrary and unreasonable exercise of power on its part.

The controversy has arisen out of an attempt on the part of the union to organize the company's bus drivers and conductors and the opposition to organization on the part of some of the company's supervisory employees. The company's service is operated in two divisions called respectively the Virginia and North Carolina divisions. A majority of the drivers and conductors in the Virginia division were in favor of organization, while practically all of those in the North Carolina division were opposed to it. The Board, on petition, held the Virginia division a proper unit for the purposes of collective bargaining and ordered an election, which resulted in the choice of the union as bargaining representative. The company refused to bargain with the union and this refusal is charged as an unfair labor practice, along with interference with union organization by questioning of union members and expressions of hostility to the union on the part of supervisory employees, and by participation of the company and its supervisory employees in the establishment of a "grievance committee" as a bargaining agency to forestall the selection of the union.

The company admits refusal to bargain with the union; and whether or not this was an unfair labor practice depends on whether or not the Virginia division was properly designated as a bargaining unit. As to the other unfair labor practices, little need be said. While there is some conflict in the evidence, there is ample support for the findings approved by the Board to the effect that supervisory employees of the company questioned employees with regard to union membership, made anti-union remarks under circumstances calculated to interfere with the free action of the employees in selecting a bargaining agent, and, on at least one occasion, indicated that those who sought the aid of the union would receive less favorable treatment from the company than other employees. There is support also for the finding that the company promoted and sponsored the grievance committee as a bargaining agent to forestall the selection of the union. On such findings, we think it quite clear that the cease and desist order was justified. Questioning of employees concerning union membership and activities and disparaging remarks by supervisory employees made in such way as to hamper the exercise of free choice on the part of the employees, have been uniformly condemned as violation of the Act. H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 518, 519, 61 S.Ct. 320, 85 L.Ed. 309; Virginia Electric & Power Co. v. N.L.R.B., 4 Cir., 132 F.2d 390, 392-395; N.L.R.B. v. Baltimore Transit Co., 4 Cir., 140 F.2d 51, 56; Piedmont Shirt Co. v. N.L.R.B., 4 Cir., 138 F.2d 738. Promotion and sponsorship by the employer or his supervisory employees of an organization for collective bargaining is likewise condemned. N.L.R.B. v. Pennsylvania Greyhound Lines, 303 U.S. 261, 268, 269, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; Virginia Ferry Corporation v. N.L.R.B., 4 Cir., 101 F.2d 103; Wallace Corporation v. N.L. R.B., 4 Cir., 141 F.2d 87, 89, 90; American Enka Corporation v. N.L.R.B., 4 Cir., 119 F.2d 60, 61, 62, 63. In the case last cited we said: "Seldom does the domination and interference with employee representation which the Act prohibits take the form of threats or coercion. More often it is to be found in the guise of friendly cooperation; and the purpose of the Act is to prohibit anything which will enable the employer to exert influence on the representatives of the employees in the collective bargaining which it is the purpose of the Act to promote. When the employer himself assists in setting up the bargaining agency, provides the machinery by which the bargaining representatives are chosen, allows the elections to be conducted on his premises and at his expense and pays the representatives for the time devoted to bargaining, he is manifestly taking too great a part in a matter with which he is supposed to have nothing whatever to do. Collective bargaining becomes a delusion and a snare if the employer, either directly or indirectly, is allowed to sit on both sides of the bargaining table; and, with the great advantage that he holds as the master of pay and promotions, he will be on both sides of the table if he is allowed to take any part whatever in the choice of bargaining representatives by the employees."

We come then to the Board's determination of the bargaining unit. The facts on which this determination was made are tersely and accurately stated by the Board as follows: "The company's bus operations are organized into two divisions, known respectively as the Virginia division, which comprises routes confined, with one exception, to the State of Virginia, and the North Carolina division, which includes routes in the two States of Virginia and North Carolina, with the greater part of the runs in the latter State. For certain purposes, the two divisions are treated by the company as distinct entities. Each division, for example, has its own seniority list, so that if a driver transfers from one division to the other, he does not carry his seniority with him but goes to the bottom of the seniority list in his new division. Each driver or conductor is definitely assigned to one division or the other and among regular drivers there is very infrequent interchange on a permanent basis; in case of emergency, a regular driver in one division may, on a purely voluntary basis, accept a run in the other division. Further, each division is in charge of a separate bus master."

After pointing out the above facts as indicating the propriety of a divisional unit, the Board adverted to other considerations which would have made a company wide unit appropriate, but gave its decision that the divisional unit was the appropriate one here because of the possibility of organizing the employees in the Virginia division and the opposition to organization in the North Carolina division. In this connection the Board said: "While the factors adverted to indicate the propriety of a division unit, there are other considerations which point up the equal propriety of a company wide unit; wages and working conditions are the same for employees throughout the system; all busses are serviced at the same garage; the dispatcher at Norfolk acts in his capacity for the two divisions; and general administration and employment policies are handled centrally. However, the union has limited its organization activities to employees of the Virginia division since those in the North Carolina division have indicated their hostility to the union and there is no present possibility of organizing the latter division. In view of the foregoing, and in the absence of any bargaining history, we are of the opinion that at this time a unit confined to employees of the Virginia division is appropriate. We do not thereby preclude future reconsideration of the appropriateness of a larger unit, should organization of the company's employees be extended."

The designation of the bargaining unit is one committed by the Act to the discretion of the Board;^* and, in view of the fact that the company itself distinguishes between its Virginia and North Carolina divisions, having a separate seniority list for each and dealing with the drivers in each through a separate bus master, we cannot say that the adoption of the division by the Board as a bargaining unit was arbitrary or unreasonable. The fact that employees are situated in different towns has been adjudged a sufficient reason for limiting the bargaining unit to one town, although there were the same reasons for a company wide unit that exist here. N.L.R.B. v. Appalachian Electric Co., 4 Cir., 140 F.2d 217. The fact that the employees travel over different territory in their work, instead of remaining stationary, does not seem a sufficient reason for curtailing the discretion of the Board in the one case and not in the...