Texarkana Bus Co. v. National Labor Relations Board

• Decision Date: 30 April 1941
• Docket Number: No. 499,499
• Citation: 119 F.2d 480
• Parties: TEXARKANA BUS CO., Inc., et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

119 F.2d 480 (1941)

TEXARKANA BUS CO., Inc., et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 499, Original.

Circuit Court of Appeals, Eighth Circuit.

April 30, 1941.

COPYRIGHT MATERIAL OMITTED

Ned Stewart, of Texarkana, Ark. (Paul Jones, Jr., of Texarkana, Ark., on the brief), for petitioners.

Maurice J. Nicoson, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Samuel Edes, Atty., National Labor Relations Board, David C. Sachs, Atty., National Labor Relations Board, and Malcolm A. Hoffmann, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is a petition for review of an order of the National Labor Relations Board filed by the petitioners Texarkana Bus Company, Inc., referred to in the record as Bus Company, and Two States Transportation Company, Inc., referred to in the record as Taxi Company. They will be so referred to in this opinion.

The order was entered after hearing on complaint filed by respondent based upon charges made by the Amalgamated Association of Street Electric Railway and Motor Coach Employees, affiliated with the American Federation of Labor, charging petitioners with certain unfair labor practices. With respect to the unfair labor practices, the Board found (1) that petitioners had each violated Section 8(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(1), by preparing and requesting their employees to sign letters renouncing the Amalgamated as collective bargaining representative; (2) that the Bus Company had required its employees to disclose their union affiliations; (3) that the Bus Company had discriminatorily discharged one of its employees, Thomas; (4) that the Bus Company had expressed opposition to the organizational efforts of its employees; (5) that the Bus Company had been guilty of discrimination in the hire and tenure of four employees, Pierce, Whatley, Jr., Goss, and Herndon, Jr., and (6) that the Bus Company had refused to bargain collectively with the Amalgamated although that organization was the majority representative of the employees in an appropriate unit. Upon these findings the Board entered a cease and desist order and as affirmative relief ordered the Bus Company (a) to offer reinstatement with back pay to Pierce, Whatley, Jr., and Goss; (b) to make whole Pierce and Herndon, Jr., for losses of pay suffered by them as the result of their discriminatory suspensions; (c) upon request, to bargain collectively with the Amalgamated; and (d) to post appropriate notices.

Petitioner Texarkana Bus Company, Inc., attacks the sufficiency of the evidence to sustain the findings of the Board, alleges that the Board erred in ordering reinstatement of the discharged employees; that it erred in ordering the Bus Company to make whole each of the employees alleged to have been improperly discharged; that it erred in ordering the Bus Company to make good any loss of pay by reason of suspension of the employees mentioned; that the Board erred in ordering the Bus Company to bargain collectively with the Amalgamated Union and in requiring it to post notices.

Petitioner, Two States Transportation Company, Inc., attacks the sufficiency of the evidence to sustain the charge that it in any manner interfered with, mistreated or coerced its employees in the rights guaranteed to them in Section 8(1) of the National Labor Relations Act, and that the Board erred in ordering it to post notices.

The Bus Company is engaged exclusively in carrying passengers in commercial busses between the twin cities of Texarkana, Arkansas, and Texarkana, Texas, while the Taxi Company is engaged exclusively in the operation of taxi cabs for transportation purposes between and through the twin cities of Texarkana, Arkansas, and Texarkana, Texas. These cities are substantially one city, separated only by the state line between Texas and Arkansas. The companies are owned by the same stockholders, managed by the same directors, and officered by the same officers. C. E. Mitchell is the president, Bero Eldridge vice-president, and Joseph Eldridge secretary-treasurer. The companies, however, are operated as two separate and distinct companies, and it is conceded that both of them are engaged in interstate commerce within the meaning of the Labor Relations Act.

We shall first consider the Act as it relates to the practices of the Bus Company. That company requires each of its employees to fill out and sign an application form, naming "any lodge, labor or benefit organization of which you are a member." This practice was adopted in 1935 before the enactment of the Labor Relations Act, 29 U.S.C.A. § 151 et seq., but it was continued after the passage of that Act, and it was in use as late as 1939. Inquiry by the employer of the employees' union affiliations has been held to be violative of the Act. N. L. R. B. v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; N. L. R. B. v. J. Freezer & Son, Inc., 4 Cir., 95 F.2d 840; N. L. R. B. v. Hearst, 9 Cir., 102 F.2d 658. In June, 1939, the officers of the Bus Company prepared letters on company stationery, addressed to "Mr. J. D. Elliott or To whom it may concern," reading as follows:

"Gentlemen: The purpose of this letter is to advise you that I do not wish for you or anyone else to bargain for or make any kind of a contract for me or in my behalf with the Texarkana Bus Company, Inc.

"Yours truly,"

They then invited practically all of the drivers for the Bus Company to their office and requested each to sign a copy. Only two of the employees so interviewed declined to sign. Many of the men signing testified that they did not know what they were signing. One driver was told that "it didn't concern the union." The J. D. Elliott addressed was an organizer for the Amalgamated and was then actively engaged in attempting to organize the employees of the Bus Company and have them join the Amalgamated Union. This was done immediately following a meeting attended by Mr. Elliott, a committee of the members of the Amalgamated Union, and the officers of the Bus Company. The letter was not only addressed to Mr. Elliott, but "To whom it may concern," and recited that its purpose was to advise that the signer of the letter did not "wish for you or anyone else to bargain for or make any kind of a contract for me or in my behalf with the Texarkana Bus Company, Inc." The letter announced in effect that the signer did not wish anyone to bargain for him. The Board was warranted in believing that this was a manifest attempt to influence the employees in a matter of labor organization and to forestall, if possible, the selection of a representative to bargain collectively for the employees.

An attempt was made to organize the employees of the Company in 1935. At a meeting of the employees in September of that year, it was decided to secure a charter from the Teamsters' Union, and an employee by the name of Thomas was elected temporary treasurer. The following morning he was advised that he was suspended for a ninety day period. While the evidence is in dispute, the Board might have believed therefrom that Mr. Eldridge told Thomas that he did not think the employees ought to have organized the Truckers' and Teamsters' Union, but that they ought to have a union of their own. In the same conversation in which Thomas was told that he had been suspended, Thomas indicated that he was in favor of organizing the union, to which Eldridge replied that if that was his attitude toward the Company, he was fired, and he was thereupon discharged. The Board from this evidence was warranted in finding that the discharge of Thomas was because of his union activities, and for the purpose of discouraging the organization of the employees. N. L. R. B. v. Remington Rand, Inc., 2 Cir., 94 F.2d 862.

The effort to organize the employees in 1935 having failed, in 1937 they secured a charter from the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, and a majority of the employees joined. Within a few days the president questioned Mr. Whatley, one of the employees, saying that he would have liked for the employees to have gotten into their own union. At a meeting of the day shift drivers called by the president of the company, he said that, "He was very much hurt that the boys had joined the union without talking to him about it." The drivers were interrogated why they joined the union and told that, "The Company didn't want them to be in a union with truck drivers." At the same meeting, the men were told that the company rules were being compiled and that the management could find things in this book of rules for which to discharge employees other than belonging to the union. This was sufficient evidence to sustain the Board's finding that the Bus Company was attempting to coerce and interfere with the union activities of its employees. N. L. R. B. v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396.

Prior union organizations having apparently been abandoned, in 1939 a special organizer for the Amalgamated Union began a movement among the employees of the Bus Company to organize a union, and on June 12, a charter was obtained. Driver Whatley was made temporary president and driver Herndon was made temporary secretary-treasurer. Shortly thereafter, Mr. Eldridge said to one of the drivers that the union "would be a good thing for the fellows to stay out of; that it would just cause a lot of trouble." Immediately following the initial organization efforts, Whatley, then president of the Amalgamated Union, Pierce, and other members of the union were shifted from the day run to the less desirable night shift. Following this was the effort to have the employees sign the letter above referred to. This series of...