Capitol Greyhound Lines

National Labor Relations Board - Board Decisions

Apr 27, 1943

49 N.L.R.B. 156 (N.L.R.B. 1943)

In the Matter of CAPPTOI. GREYHOUND LINES AND CAPITOL GREYHOUND
LINES OF INDIANA, INC. and AMALGAMATED ASSOCIATION OF STREET,
ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA, DIVISION
1299, A. F. OF, L.
Case No. C-25-3j.-Decided April 27, 1943
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by Amal-
gamated Association of Street, Electric Railway & Motor Coach Em-
ployees of America, Division 1299, A. F. of L., herein called the Union,
against Capitol Greyhound Lines and Capitol Greyhound Lines of
Indiana, Inc., herein called the respondents, a hearing was held before
a Trial Examiner in Cincinnati, Ohio, on January 27, 1943, in which
the Board, the respondents, and the Union participated by their rep-
resentatives. The Board has reviewed the rulings of the Trial Ex-
aminer made on motions and on objections to the admission of evidence
and finds that no prejudicial-errors were committed. The rulings are
hereby affirmed.
On February 18, 1943, the Trial Examiner issued his Intermediate
Report finding that respondents, had not engaged in violations of
the Act and recommending that the complaint against the respondents
be dismissed. Exceptions to the Intermediate Report and a brief were
thereafter filed by the Union. None of the parties requested oral
argument before the Board. Upon our consideration of the entire
record, we affirm and adopt the findings of the Trial Examiner, except
insofar as they are inconsistent with our findings and conclusions here-
inafter set forth.
The record is clear and we are convinced that the respondents en-
gaged in the unfair labor practice hereinafter found. On November
24, 1942, the Regional Director served upon the respondents a consent
election report in which he overruled the respondents' objections to.
the consent election.and • found that the Union "has been designated,
and selected by a majority of the employees in the agreed unit as the
exclusive bargaining representative of the employees within the unit.""
The Trial Examiner found that, thereafter, on'December 18, 1942, the
49 N. L. R. B., No. 22.
X56
CAPITOL GREYHOUND DIN'ES 157
respondents refused to bargain with, the Union upon request. We
agree and so find. The Trial Examiner also found, like the Regional
Director, that there is no merit to the respondents' objections to the
consent election on the grounds that (a) the Regional Director failed
to make provisions for the voting of four employees who , were in
active military service of the United States at the time of the election,
and for the voting of two employees who were ill at the time of the
election, and that (b) two of the respondents' employees were denied
the opportunity to vote because their duties prevented them from
being at a designated polling place on the day of the election. We
agree and so find.
The Trial Examiner found further that, contrary to the finding of
the Regional Director; the evidence sustains the contention of the
respondents that the vote of John E. Nolan should not be counted
because he was not an employee of the respondents on July 31, 1942,
the eligibility date agreed upon in the consent election agreement;
that therefore the Union did not represent a majority of the employees
in the agreed unit, as a result of the consent election; 1 and that, con-
sequently, the respondents' refusal to bargain with the Union upon
request did not violate the Act. We do not agree. The consent agree-
ment provided that
the determination of the Regional Director shall be final and bind-
ing upon any question (including questions as to the eligibility
of voters) raised by either party hereto relating in any manner
to the election and not specifically covered in this agreement.
Attached to this agreement and made a part thereof, was a list of
names, admittedly prepared by the respondents and submitted by them
at the time when the agreement was signed on August 22, 1942. Pur-
suant to the terms, of this agreement, this list constituted "the sole
and exclusive list of eligible voters." Nolan's name was included on
this list. Thereafter, the Regional Director prepared a "Notice of
Election" to which was attached a voting schedule containing the
names of the employees eligible to vote, including Nolan's name, and
designating the various polling places at which they were to vote.
This notice was posted at the various polling places about 1 week
prior to the election which was held on September 2, 1942. No objec-
tion to Nolan's inclusion among the eligible voters was raised by the
'respondents prior to or at the time of the election. ,
The balloting was conducted at the various polling places, including
the one where Nolan was scheduled to vote, and a "Certification on
Conduct of Election"- was made. for that polling place as well as for
1 This finding was also based upon the Ti ial Examiner's further finding that the vote
of employee Thomas, whose vote was challenged on the ground that he was a supervisor
on the date of the election, should be counted. In view of our finding as to Nolan, here-
inafter set forth, it becomes unnecessary to rule upon the challenged ballot of Thomas.
158 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
the others. It was signed by an observer on behalf of the respondents
and the Regional Director. These certifications stated that the ballotr
ing was fairly conducted; that all eligible voters were given an oppor-
tunity to vote their ballots in secret; and that the ballot box was pro-
tected in the interest of a fair and secret vote.
On September 4, 1942, the ballots were counted and "certification of
counting and tabulating of ballots" was executed by representatives
of the respondents and the Regional Director. - The certification dis-
closed that the total number of employees on the eligibility list was 73;
that 63 ballots were cast; and that 32 were cast for the Union,,30
against, the Union; and. 1 ballot was challenged. Thereafter, the re-
spondents and the Union were notified by the Regional Director of
-the results of the 'election. On September 9, 1942, the respondents
filed, with the Regional Director, objections to any determination of
results based upon the consent election on the ground hereinabove
indicated. With respect to Nolan, the respondents contended that his
name erroneously appeared on .the list of eligible voters previously
made a part of the consent election agreement, and that he was im-
properly permitted 'to vote because he was not an elriployee. of the re-
spondents on the agreed eligibility date of July 31, 1942. At the
hearing on objections held before the Regtollal Director on October
27, 1942, the respondents' witnesses testified 2 that Nolan's name ap-
peared on the eligibility list through an error of the respondents' office
staff , which compiled the list from a pay roll of August 15 instead of
July 31, and that Nolan was first employed by them on August 8.3 On
November 24, 1942, the Regional Director issued his "Report on Con-
sent Election" in which, after setting forth the facts hereinabove stated,
he concluded that the respondents' observers at the election booth could
have challenged Nolan's vote; that to permit a challenge at this late
date might open the door to post-election challenges, a procedure which
.would not be conducive to orderly elections; and that, in any event,
Nolan was clearly within the terms of the consent election agreement.
He accordingly overruled the respondents' objection.'
The factual question.of majority is bottomed upon a consent agree-
ment which expressly provided that a determination of the Regional
Director as to questions arising out of the conduct of the election, in-
cluding questions arising out of eligibility of voters, shall be final and
binding on the parties. In overruling the respondents' objection, the
Regional Director had before him and considered the following facts.
The list 'of eligible voters attached to the agreement was prepared
' The transcript of testimony taken before the Regional Director was, by stipulation
of all of the parties , received in evidence by the Trial Examiner with the same force and
effect as if the'witnesses were testifying in the hearing before him.
,$ Documentary evidence received at the hearing, concerning which the record was not
developed, indicates that . Nolan was in respondents ' employ as a trainee at least as early
as August 1.
CAPITIOL GREYHOUND LINES 159
solely by the, respondents, was submitted by them at the time of the
execution of the agreement, and, by the terms of the • agreement, was
the sole and exclusive list of eligible voters. Whether or not Nolan
was employed by the respondents on the agreed eligibility date of July
31, was a fact peculiarly within the respondents' knowledge. Yet, not
until the respondents were informed of the outcome of the election
did they raise any objection to Nolan's'vote. Only 2 months after the
election, Graves, the respondents' vice president and general manager,
who signed the agreement to which the eligibility list containing
Nolan'ss name was. attached, was.unab'le to state that he had no knowl-
edge prior to the election that Nolan's name was erroneously placed on
the eligibility list 4 The respondents offered no evidence to show that,
Nolan voted for the Union.5
Upon these facts, we find that the Regional Director's ruling was
neither arbitrary nor capricious. In the absence of such conduct, we
feel ourselves bound by the terms of the agreement providing for the
finality and binding effect of the Regional Director's determination to
the same extent as a court' is bound by an agreement to abide by an
arbitrator's award.5 To hold otherwise Would permit an employer
deliberately to ignore binding commitments embodied in a consent
agreement; would open the door to subterfuges for hampering and
delaying a final determination of a bargaining representative; and
would tend to defeat, rather than to effectuate, the policies of the Act.
We find that, in accordance with the agreement of the parties, all
bus drivers employed by the respondents constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act. We further find that on and at all times
after September 4, 1942, the Union was the duly designated, repre-
sentative of a majority of the employees in the aforesaid appropriate
unit, and that by virtue of Section 9 (a) of the Act, the Union was
on that date and at all times thereafter the exclusive representative
of all the employees in such unit for the purpose of collective bar-
gaining with the respondents in respect to rates of pay, wages, hours
of employment, or other conditions of employment.
We find that the respondents, on December 18, 1942, and at all
times thereafter, have refused to bargain collectively with the Union
I Graves testified as follows :
Q. When did you discover that it was the wrong list?
A It was discovered in my office just around election time, I don't know before
or after.
5In political elections, illegal votes may not be taken from the majority candidate
unless the challenger proves that they were cast for said candidate. 20 C. J , p. 182,
Sec 224.
e See, e. g., Red Cross Line v. Atlantic Fruit Co, 264 U. S. 109,121 ; James Rtichardson
it Sons v. W. E. Hedger Transp. Corporation, 98 F. (2d) 55, 57 (C. C. A 2), certoriari
denied 305 U. S. 657; Williston on Contracts, Section 1929 A ; Restatement of the Law
of Contracts, Section 445, Comment (b), Section 550, Comment (a).
160 DECISIONS OF NAT'IONAL,LAB,OR._REiLATIONS BOARD
as the exclusive representative of their employees, and have thereby
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. _ _
THE REMEDY
Having found that the respondents have engaged in and are en
gaging in certain unfair labor practices, we shall order them to cease
and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. a
Having found that the respondents have refused to bargain col-
lectively with the Union as the exclusive representative of their em-
ployees in an appropriate unit, we shall order the respondents, upon
request, to bargain collectively with the Union as such representative
with respect to -ages, hours of employment, or other conditions of
employment.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric Railway & Motor
Coach-Employees of America, Division 1299, A. F. of L., affiliated
with the American Federation of Labor, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. The bus drivers employed by the respondents, Capitol Grey-,
hound Lines and Capitol Greyhound Lines of Indiana, Inc., Cin-
cinnati, Ohio, constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the Act.
3. Amalgamated Association of Street, Electric Railway & Motor
Coach Employees of America, Division 1299, A. F. of L., affiliated
with the American Federation of Labor, was on September 4, 1942,
and at all times thereafter has been, the exclusive representative of
all the employees in such unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Amalgamated Associa-
' tion of Street, Electric Railway & Motor Coach Employees of America,
Division 1299, A. F. of L., affiliated with the American Federation
of -Labor, as the exclusive representative of' their employees in an
appropriate unit, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
OAPITOL GREYHOUND LINES 161
respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
• 6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board, hereby orders that the respondents, Capitol Greyhound Lines
and Capitol Greyhound Lines of Indiana, Inc., Cincinnati, Ohio,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Association
of Street, Electric Railway & Motor Coach Employees of America,
Division 1299, A. F. of L., affiliated with the American Federation of
Labor, as the exclusive representative of all bus drivers employed by
the respondents;
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing their employees in the exercise of the
rights to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7
of the Act. ,
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Amalgamated Associa-
tion of Street, Electric Railway & Motor Coach Employees of America,
Division 1299, A. F. of L., affiliated with the American Federation of
Labor, as the exclusive representative of the bus drivers employed by
them, with respect to rates of pay, hours of employment, and other
conditions of employment;
(b) Post immediately in conspicuous places in their plants, and
maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices to their employees stating : (1) that the
respondents will not engage in the conduct from which they are ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order, and (2)
that the respondents will take the affirmative action set-forth in para-
graph 2 (a) of this Order;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of the receipt of this Order, what
steps the respondents have taken to comply herewith.
162 DECISIONS OF NATIONAL LABOR, RiELATIONS BOARD
INTERMEDIATE REPORT
Mr. James A. Shaw, for the,Board.
Mr. Thomas L. Tallentire and Mr. Wm. R. Meier, of Cincinnati, Ohio, for the
respondent.
Mr. O. David Zimrsng, by Mr. Hans J Lehmann, of Chicago, Ill., for the
Union. -
STATEMENT OF THE CASE
Upon an amended charge duly filed on January 6, 1943, by Amalgamated Asso-
ciation of Street, Electric Railway & Motor Coach Employees of America, Divi-
sion 1299, A. F. of L, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Ninth Region (Cin-
cinnati , Ohio), issued its complaint, dated January 7, 1943, against Capitol Grey-
hound Lines and Capitol Greyhound Lines of Indiana, Inc., Cincinnati, Ohio, herein
called the respondents, alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7), of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. 'Copies of the complaint accompanied by
notice of hearing thereon were duly served upon the respondents and the Union.
With respect to the unfair labor practices the complaint, alleged in substance
that the respondents on November 28, 1042, and thereafter, refused to bargain
collectively with the Union as the exclusive representative of their employees
within an appropriate bargaining unit,1 although the Union represented a ma-
jority of such employees, thereby interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
On January 18, 1943, the respondents filed their answer, in which they ad-
mitted certain allegations of the complaint pertaining to their business, but
denied that thev had engaged in the alleged unfair labor practices.
Pursuant to notice: a hearing was held at Cincinnati, Ohio, on January 27,
1943, before'W. P Webb, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondents, and the Union were represented by
counsel and participated in the hearing Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties.
At the conclusion of the hearing counsel for the Board, the respondents, and
the Union'argued orally, on the record, before the Trial Examiner. On February 4,
1943, counsel for the respondents filed a brief with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE IIUSINESS OF TIIE RESPONDENTS
Capitol Greyhound Lines is a Virginia Corporation. Capitol Greyhound Lines
of Indiana, Inc, :is an Indiana corporation and is a snbsidiaiy of Capitol Grey-
hound Lines. The respondents are engaged in the maintenance and operation
of a motor bus transportation system, transporting for hire passengers, baggage,
mail and express, through and within he States of Maryland, Virginia, West
Virginia, Ohio, Indiana, Illinois, Missouri, Kentucky, and the District of Columbia.
The principal offices of the respondents are located in Cincinnati, Ohio. Through
1 The parties agreed in the consent election agreement that the appropriate unit should
consist of all the respondents' bus drivers
CAPITOL GREYHOUND LINES , 163
arrangements -for joint operating facilities with affiliated Greyhound-Lines and
independent bus lines, the respondents are part of a closely coordinated and inte-
grated system of national transportation. The respondents admit, for the purr
poses of the instant proceeding, that they are engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Association of Street, Electric Railway and Motor Coach Em-,
ployees,of America, Division 1299, A F. of L, affiliated with the American Federa-
tion of Labor, is a labor organization, admitting to membership employees of
the respondent.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
I
The complaint alleged, in substance, that the respondents, on November 28,
1942, and at all times thereafter, refused to bargain collectively with the Union
as the duly authorized representative of the respondents' employees in an appro-
priate unit. _
Prior to 1941 the bus drivers of the respondents were unorganized. In July 1941
the Union began an organizational campaign among these employees, which re-
sulted in a number of them joining the Union. Soon thereafter a local, known as
Division 1299, A. F. of L., was organ zed and chartered by Amalgamated Associa-
tion of Street, Electric Railway & Motor Coach Employees of America, affiliated
with the American Federation of Labor.
On or about January 19, 1942, a meeting of representatives of the respondents
and the Union was held at the Netherlands-Plaza Hotel in Cincinnati, Ohio. The
Union requested recognition as the sole bargaining representative of the respond-
ents' bus drivers. The respondents refused the request and suggested that the
matter be referred to the National Labor Relations Board, stating that if the Board
certified the Union, the respondents would recognize it. The Union then filed
a petition for investigation and certification under Section 9 (c) of the Act. On
or ab: ut February 12, 1942, another meeting of representatives of the respondents
and the Union was held in the Regional Office. The Union requested that its
membership cards be checked with the respondents' pay roll in order to determine
whether or not the Union represented a majority of the bus drivers. The re-
spoi:dent"s refused, and suggested that a consent election be held. The Union
decli ied this offer and subsequently withdrew its petition. No further negotia-
tions were had between the Union 'and the respondents until August 8, 1942, at
which time the Union filed another petition
On August 22 representatives of the. respondents and the Union entered into
an "Agreement for Consent Election," and pursuant thereto an election was con-
ducted by the Regional Director on September 2, among the employees in an
appropriate unit consisting of all the bus drivers of the respondents, which was
'the unit adopted by the respondents and the Union in the consent election agree-
ment, to'determine whether or not these employees desired to be represented 'by
the Union. The agreement was on the usual printed form which is used by the
Board for consent elections: The agreement stated, inter alia:
An election by secret ballot shall be conducted under the direction and super-
vis on of the Regional Director among all employees in the unit who were
employed by the employer during the pay-roll period ending July 31, 1942,
including employees who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or training
of the United States, or temporarily laid off, but excluding employees who
531047-43-vol 49-12
164 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
have since quit or been discharged for cause, to determine whether or- not
they desire to be represented by the Union for the purposes of collective
bargaining.
It also contained the usual proviso found in the printed form of Consent Election
Agreements "that the deteimination of the Regional Director shall be final and
binding upon any question (including questions as to the eligibility of voters)
raised by either party hereto relating-in any manner to the election and not
specAlcaily covered by the agreement."
The agreement further provided that the election should be held on September
2, at places and times mentioned in a schedule attached to the agreement. This
schedule provided for the voting to take place between certain hours, at Cin-
cinnati, Ohio, Louisville, Kentucky, Flora, Illinois, St Louis, Missouri, Clarksburg,
West Virginia, and Washington, D. C Attached to the agreement was a list of
employees, which the parties agreed constituted "the sole and exclusive list of
eligible voters." The list was prepared by the respondents and contained the
names of 73 employees, among whom were Clyde O. Thomas, whose vote leas
challenged, and John E Nolan,' who voted at the election, but who was not an
employee of the respondents on July 31. The ballots of these two employees will
be discussed below.
The Regional Director prepared the usual printed "Notice of Election," which
was posted at the various voting places one week prior to the election. The
notice stated that:
Those eligible to vote are all bus drivers of the Company, who were employed
by the Company during the pay-roll period ending July 31, 1942, including
those who did not work during such pay-roll period because they were ill
or on vacation on in the active military service or training of the United
States or temporarily laid off, but excluding those who have since quit or
have been discharged for cause.
The notice was accompanied by a "voting schedule" which showed the names
of the employees who were eligible to vote and the places where they were
expected to cast their respective ballots. However, any eligible voter could
cast his ballot at any one of the polling places that was most convenient.
The balloting was duly conducted at the various places on September 2, and
a "certification on conduct of election" was made for each polling place, and
signed by observers on behalf of the respondents and the Regional Director,
except for Clarksburg, West Virginia. This certification was signed only by
a representative of the Regional Director because the respondents had no ob-
server at this point. These certifications stated that the balloting was fairly
conducted ; that all eligible voters were given an opportunity to vote their ballots
in secret; and that the ballot box was protected in the interest of a fair and
secret vote. The certifications were executed on the regular forms used by the
Board in such cases.
On September 4 the ballots were counted and "certification of counting and
tabulating of ballots" was executed by representatives of the respondents'and
the Regional Director, which discloses that the total on the eligibility list was
73; that 63 ballots were cast; of which, 32 were for the Union and 30 against
the Union, and one ballot was challenged. This report was accompanied by
tally sheets signed by representatives of the respondents and the Union. The
respondents and the Union were notified by the Regional Director of the results
of the election.
'The list incorrectly showed his name as John D. Nolan. His correct name is' John
E Nolan.
2 CAPITOL GREY HOUND LINES 165
On September 9 the respondents filed "objections to the conduct of ballot in
consent, election" and-objected to any determination of results-based thereon,
contending; (1) that no provision was made by the Regional Director for the
voting of four employees of the respondents then in active military service of
the United States; naanely, Bruce R. Radcliff, Charles H Cole, William H Fite,
and William E. Lynch; (2) that no provision was made for the voting of two
employees who were ill at the time of the election; namely, Elwin E Haines
and William M: Fritz; (3) that Charles A. Smith and Burton Holcomb were
denied the opportunity to vote, because their duties prevented them from being
at a voting place on the day of the election; (4) that the vote of Clyde O.
Thomas, whose name appeared on the list of eligible voters attached to the
consent election agreement, was improperly challenged, and that his vote should
be counted; and (5) that John E Nolan, whose name erroneously appeared on
the list of eligibles, was improperly permitted to vote, because he was not an
employee of the respondents during the pay-roll period of July 31, which was
the eligibility date agreed upon in the consent election agreement; that his
name appeared on the eligibility list through error because he was first employed
by the respondents on August 8, 1942, and in making up the eligibility list, the
respondents' clerk inadvertently used the pay roll of August 15 instead of the
pay roll for July 31, and that was the reason that Nolan's name appeared on
the eligibility list. Therefore Nolan's vote should not be counted.
In October 27 a hearing was held in the Regional Office before the Regional
Director in respect to the foregoing objections filed by the respondents. At this
hearing the respondents reiterated their previous objections. Witnesses were
called who testified under oath, and certain documentary evidence was intro-
duced. 'A transcript of the proceedings was made by a stenographer in the
Regional Offiee, which was received in evidence at the instant hearing, together
with the exhibits called for therein. This evidence will be discussed below.
- On November 24 the Regional Director issued his "Report on Consent Election,"
as follows :
REroaT IN CONSENT ELECTION
Pursuant to the Agreement for Consent Election entered into by the parties
in the above-entitled case, an election was held on September 2, 1942' The
results of the election were as follows :
Total on eligibility list----------------------------------- 73
Total ballots cast--------------------------------------- 63
Total ballots challenged--------------------------------- 1
Total blank ballots-------------------------------------- 0
Total void ballots--------------------------------------- 0
Total valid votes counted-------------------------------- 62
Votes cast for Amalgamated Association of Street, Electric
Railway & Motor Coach Employees of America, Div. 1299, -
AFL------------------------------------------------- 32
Votes cast against Amalgamated Association of Street,
Electric Railway & Motor Coach Employees of America,
Div. 1299, AFL--------------------------------------- 30
Seasonable objections to the conduct of the election were filed by the Com-
pany. The objections divide themselves into four parts: (1) that certain
voters were prevented by illness or business exigencies from casting their bal-
lots; (2) one voter wrongfully voted; (3) no arrangements were made. for
military voters to cast their ballots; (4) the vote of one employee was wrong-
fully challenged. The'objections will be treated seriatim
k
166 DEICISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) The time and place of balloting were accepted and agreed,to by the
Regional Director, the Union and the Company only' after a very careful
examination of a schedule presented by the Company which showed that all
eligible voters would , in the normal course of business , be allowed ample
time to vote. Sickness and the usual exigencies of business, in almost any
election-industrial or political-prevent certain voters from going to the
polls. In political and industrial elections hardships may make it difficult
for particular voters to get to the polls. Yet elections are not set aside for
this reason, nor are run-offs permitted because of it. To permit such a ground
for protest would make the holding of elections ah impossible task. The rules
set up in this election followed normal Board procedure. The proof of the
success and democratic result of the election in the case at bar is amply
shown by the large percentage of voters actually casting their ballots. Con-
trasted, for example, with the recently held political election, the percentage
of eligible voters casting their ballots is plienomenally large.
(2) The alleged wrongful voter was admittedly within the unit for which
this election was held ; his name was submitted by the Company as an eligible
voter ; his name was posted in all depots of the Company for all employees
to see. It is now claimed that he was not working for the Company at the
time of the eligibility date, though he is admittedly working there now and
was at the time of the election. The Company challengers at the election
both could have challenged him, despite the previous claim of eligibility by
the Company when they submitted his ' name. To permit a challenge at
this late date would open the door to post-election challenge procedure, a
practice not conducive to orderly and certain elections. Furthermore, it
should be noted that the Election Agreement provided (Paragraph VII)
"Attached hereto and marked Annex B is a list which all parties agree
constitutes the sole and exclusive list of eligible voters." The objected-to
employee was on such list and seems, therefore, clearly within the terms,
of the election agreement. 1
_(3) The practice of the Board regarding military voters was strictly
followed in this case It would be presumptuous for the undersigned to
discuss a rule always followed by the Board which was designed to encourage
and promote speedy elections so necessary in industrial relations (See In
Be Wilson & Co., 37 NLRB 944, and In Re Weigan Co., 44 NLRB No. 56.)
In the case of the military, as in the case of the 1st and 2nd objections, the
rules were explained to the Company and to the Union by the undersigned,
they were willingly agreed to, they were accepted without reservation by
the parties who constantly held Board elections and who knew that such
rules would be followed Were it not for the earnestness with which counsel
for the Company now argues, it would be difficult to believe the protest were
made in good faith, for the Company concedes because of the election agree-
ment which it signed that it cannot now protest on its own behalf. It claims
now that it acts on behalf of those employees who were against the Union ;
it claims that these persons should be protected by the Regional Director
apparently intimating that since he is not protecting them it will proceed to
do so. The position the Company takes is laudable perhaps, but untenable.
The Regional Director has no interest either for the Union or against, the
Union, nor does he care how employees vote. He cannot take the side of
those who favor unionization, nor of those who oppose it. His interest is
in the emplyees as a whole. The election was held according to fair terms
agreed to by all. A large percentage of the employees voted. In the interest
of both groups-those who favored the Union and, those who opposed it-in
CAPITOL GREYHOUND LINES 167
the language of the Supreme Court of the United States he must assume
that "those who did not participate are presumed to assent to the expressed
will of the majority of those voting" (Virgrntan Railway Company v System
Federation No. 40 et al., 300 U. S. 515.)
(4) In view of the aforementioned views, it is unnecessary to rule upon
the- challenged ballot.
The objection to the election having been overruled, the undersigned,
therefore, pursuant to Section IX of the Agreement for Consent Election finds
and determines that Amalgamated Association of Street, Electric Railway
& Motor Coach Employees of America, Div. 1299, A. F. L., has been desig-
nated and selected by a majority of the employees in the agreed unit as the
exclusive bargaining representative of the employees within the unit.
PHILIP G. PHILLIPS,
Regional Director,
National Labor Relations Board.
Dated at'Cincinnati, Ohio this 24th day of November 1942.
It will be noted from the above report of the Regional Directer that the objec-
tions raised by the respondents were overruled, and the Regional Director found
that the Union had been designated and selected by a majority of the employees
in the agreed unit as the exclusive bargaining representative of the employees
within such unit
On November 25 a representative of the Union notified the respondents that
according to the decision of the Regional Director, the Union had been designated
and selected as the exclusive representative of a majority of the employees within
the agreed unit, and the Union desired to arrange a meeting with the respondents
for the purpose of negotiating an agreement on behalf of these employees On
November 28 the respondents notified the Union that it had informed the Regional
Director that it would file a "Petition for Review" of the Regional Director's
"Report on Consent Election," with the National Labor Relations Board in Wash-
ington, D. C., and until this matter had been determined, they were not in a position
to meet with the Union.
On November 27 the respondents served on the Regional Director and the
attorney for the Union a "Notice of Appeal," stating that the respondents would
file with the National Labor Relations Board in Washington a "Petition for
Review" of the Regional Director's "Report on Consent Election," dated November
24. On the same day, the respondents filed a copy of their "Notice of Appeal"
together with "Petition for Review" with the Board in Washington, requesting the
Board to set'aside the Regional Director's "Report on Consent Election" dated
November 24, on the ground that: (1) the Regional Director had erred in over-
ruling the respondents' objections to the conduct of ballot in consent election" ;
and (2) that the Regional Director had erred in finding that the Union had been
designated and selecteid by a majority of the employees in the agreed unit as the
exclusive bargaining representative of such employees.
On December 4 the Board, by the Director of Field Division, informed the
respondents that:
In view of the,fact-that the,election•was, conducted,by the Regional Director
pursuant to the provisions of a consent election agreement, the parties do not
have the right to appeal the Regional Director' s rulings on objections to the
Board.
On December 18 representatives of the Respondent, Union, and U. S. Concilia-
tion Service of the Department of Labor met in the Cincinnati office of the Con-
168 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
ciliation Service. The representative of the Union testified that at that meeting
he requested the respondent to negotiate a contract with the Union and the
respondent denied this request The Respondent admits that the question of
entering into negotiations with the Union was discussed at that time but denies
that he was specifically requested by the-Union representative to negotiate an
agreement with the Union. The undersigned credits the testimony-of the union
representative,and finds that the Union requested and the respondenr refused to
bargain at the meeting with the Federal Conciliator
Concluding findings in respect to the alleged refusal
to bargain collectively
At the instant hearing, as well as at the hearing before the Regional Director
on October 27, 1942, the respondents contended in substance (1) that no arrange-
ments were made by the Regional Director for the voting of four eligible employees
who were in the armed forces of the United States at the time of the election;
(2) that no provision was made for the voting of two eligible employees who were
ill at the time of the election; (3) that two eligible employees were prevented
from voting because of business exigencies ; (4) that one employee, John E. Nolan,
was improperly permitted to vote; and (5) that the vote of one eligible employee,
Clyde O. Thomas, was improperly challenged, and that his vote should be counted!
The Board's counsel contends that since the parties agreed to be bound by'the
findings of the Regional Director under the terms of the Consent Election Agree:
ment, his findings are conclusive and not subject to review in'the instant proceed-
ings in the absence of a showing of bias or fraud.
The facts here do not justify this conclusion. Since the Board has made no
prior determination of these facts in the representation proceedings, it is under a
duty to pass on the merits of the case in the instant proceedings. The Board is
not bound by the agreement of the parties, nor by the findings of the Regional
Director. On the basis of these considerations, the undersigned finds that the
findings of the Regional Director in the representation proceedings are not binding
upon the Board in the instant case: -
In respect to the eligible employees who were in the armed services of the United
States at the time of the election, while it is true that the agreement for consent
election provided that such employees who were employed as bus drivers during
the pay-roll period ending July 31, 1942', were eligible to vote in the election, the
Board has held that the prior practice of "mail balloting" by employees in the
active military service has been discontinued in view of administrative difficulties,
resulting delays, issues raised concerning'conduct of elections and relatively small,
returns ; and that the eligibility provisions in Directions of Elections would be
construed to provide only that those employees who appeared in person at the polls
would be entitled to vote.' This ruling was later reaffirmed by the Board on
September 22, 1942 6 In respect to these employees, the undersigned agrees with
the decision of the Regional Director, and finds that this contention of the respond-
ents is without merit. -
In respect to the next contention of the respondents that certain employees did
not vote on account of illness, the undersigned agrees with the findings of the
Regional Director. The record discloses that the time and places of balloting
were agreed upon by the parties and the usual printed notices of electioin were
3-These contentions of the respondents will be discussed seriatim
'Matter of Wilson & Co., Inc. and Packinghouse Workers Organizing Committee, Local
No: 20, affiliated with the C I. 0., 37 N. L R B , 944
Matter of Edwin L. TViegand Company and United Electrical , Radio & Machine Workers
of Ametsea, affiliated with the C. I. 0 , 44 N. L R. B. 56.
CAFITIOL GREYHOUND LINES 169
posted, together with voting schedules showing all the places where balloting
would take place, and the names of those eligible to vote, a week before the elec-
tion occurred. The undersigned finds from the entire record in the case that the
usual method was followed in conducting this election and there was no obliga-
tion resting upon the Regional Director to investigate the physical condition of the
eligible employees, and if any were ill, to make special arrangements for them to
vote. To the contrary, the respondents were in the best position to know if any
of the employees were ill at the time of the election and were unable to attend the
polls. In which event, the matter could have been taken up with the Regional
Director by the respondents at the time the election was held, which was not (lone.
The undersigned finds that there is no merit in this contention of the respondents.
With reference to the eligible employees who were prevented from voting
on account of having to operate the respondents' busses, the undersigned agrees
with the findings of the Regional Director in this respect. As stated above,
the time and places of balloting were agreed -upon after a careful examination
of the respondents' bus schedules, in order that as many of the drivers would
be permitted to"vote as possible The record shows that the two eligible em-
ployees in question were operating their busses under the respondents' direction
on the day of the election, and their failure to be at a polling place on that day
cannot be attributed to any dereliction of duty on the part of the Regional Diree-,
tor. It was agreed that those eligible to vote could vote at any one of the six
polling places Therefore, the undersigned finds that there is no merit in this
contention of the respondents
In respect to the vote of John E. Nolan,' the record shows that he was first
employed by the respondents on August 8, 1942. Therefore he was not an em-
ployee of the respondents on July 31, 1942, which was the eligibility date agreed
upon by the parties The record further shows that the respondents were re-
quested to prepare an eligibility list to be attached to the "Agreement for Consent
Election", which was done. However, through an error of the respondents' office
force, this list was made up from the pay roll of August 15 instead of the pay
roll for July 31, as agreed upon. Therefore, the name of John E Nolan appeared
on the eligibility list through error The undersigned does not agree with the
findings of the Regional Director in respect to the vote of this employee. "The
Agreement for Consent Election" stated distinctly that an election would be
conducted among all employees in the unit who were employed by the respondent
during the pay-period ending July 31, 1942 The undersigned finds thatk
this provision of the agreement takes precedence over the erroneous eligibility
list which was attached to the agreement Evidently this list-was not checked
by anyone with the pay roll of the respondents ending July 31, prior to the elec-
tion, and it was-not initialed by the parties' Otherwise, the error of including
Nolan's name in the list would have been discovered., Nolan's name appeared on
the voting schedule for Washington, D C., and it is to be presumed that the
observers at this polling place had only the voting schedule-and did not have a
copy of the respondents' pay roll for July 31 Otherwise, the error would have
been discovered at the time that Nolan voted. It is also to be presumed that
when the Union and the respondents agreed on the eligibility date of July 31,
it was for the purpose of excluding from the balloting any bus drivers employed,
'The-,Parties entered an unconditional stipulation that Nolan voted, on September 2,
1942 The record indicates that parties had no actual knowledge as to whether Nolan
did,vote, and that 'the stipulation was entered into _ upon the assumption that the question
as to whether Nolan voted was immaterial . It was not contended by any party that
Nolan did not vote.
Field Division Instruction No. 2 (Rev) dated February 5, 1942, to the Field Staff
ad,,ises that such lists be checked and initialed by the parties
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsequent to that' date. The fact that Nolan's name appeared on the voting
schedule and that-he was actually a-bus driver at the time of the election does
not alone render him eligible to vote.
Nolan was employed by the respondents on August 8, 1942, and the "Agreement
for'Conseut Election" was executed on August 22, 1942. Both the Union and the
respondents knew that Nolan was a bus driver at the time of the execution of'the'
consent election agreement, and if they had wanted him to vote in the election, a
supplemental agreement to that effect could have been made. In the absence of
such an agreement, it is reasonable to suppose that neither the Union nor the
respondents considered Nolan eligible to vote, or contemplated that he would vote
in the election. Nolan's name was erroneously placed upon the- eligibility list
and he was wrongly permitted to vote ; however, these two wrongs do not
make a right. Therefore the undersigned finds that, the evidence sustains the
contention of the respondents that Nolan's vote should not be counted, and the
undersigned finds that his ballot should be disregarded There is nothing in the
record to show whether he voted for or against the Union e
In respect to the respondents' contention that the vote of Clyde 0 Thomas
should be counted, the Regional Director in his "Report' on Consent Election"
stated that, in view of his findings in respect to the other contentions of the
respondents, it was not necessary to rule upon the challenged ballot of Thomas.
However, in view of the foregoing findings by the undersigned, it now become
necessary to determine whether or not Thomas' vote should be counted The
record discloses that the Field Examiner challenged Thomas' vote on the ground
that, subsequent to the date of the consent election agreement, the employment
status of Thomas had changed from a bus driver to a dispatcher with supervisory
duties, and therefore his vote should not be counted. According to the undenied
testimony of Thomas at the hearing before the Regional Director on October 27,
he was first employed by the respondents on November 30, 1930, as a bus driver,
and was assigned to the route between Clarksburg, West Virginia and Washington,
D. C ; that on July 31, 1942, he was still on that route ; that he was paid on a trip
basis ; a that on or about August 23, 1942, employee Sibila, stationed at Clarksburg,
West Virginia, was inducted into the armed forces of the United States ; that
Sibila's duties at Clarksburg were principally of a mechanical nature working
on busses, and acting as a dispatcher when necessary, as no regular dispatcher
was connected with that station; that he (Thomas) was instructed by the
trespondents to temporarily take over the duties of Sibila at Clarksburg until
another employee could be assigned to this job; that he remained at Clarksburg
from about August 23 to October I1; that employee Gilbert was assigned 'to
Clarksburg a short time after Sibila left ; and that as soon as Gilbert became
familiar with the work, he (Thomas) returned to his previous job as bus driver
on the same route he had before. Thomas further testified, and the record
shows, that during the time he was temporarily employed at Clarksburg, he was
paid on the same basis and at the same rate that he had been paid prior toy being
assigned to Clarksburg. Thomas further testified at the hearing before the
Regional Director that his principal duties while he was temporarily stationed at
Clarksburg were "working on busses from one end to the other. Change spark
plugs, sweep them out, gas them. Sometimes a rear end would come in, a head to
go on, or something like that." From the entire record in the case, the under-
signed finds that on July 31, 1942, Thomas was employed by the respondents
8 Nolan did not testify at the hearing before the Regional Director on October 27, 1942,
nor at the instant hearing
9 Thomas was paid $9.72 per trip between Clarksburg, West Virginia and Washington,
or vice versa He was. paid for 21 trips in July, 29 trips,in August, and 30 trips during
September, 1942. All of these trips were at the rate of $9.72 a trip.
CAPITOL GREYHOUND LINES 171
as a bus driver and he was within the appropriate linit, as agreed upon in the
"Agreement for Consent Election" ; that at the time of the election on September
2, 1942, he was employed temporarily at Clarksburg, `Vest Virginia, in a non-
supervisory, capacity ; that while on this duty he was paid on the same basis
that he had been paid while driving a bus ; that on October 11, he was transferred
from Clarksburg back to his original job as bus driver, on the same route and at
the same wages per trip that he had previously been paid.
There is nothing in the consent'election agreement which would have precluded
Thomas from voting, even though his duties, at the time of the election, were of
a supervisory nature The consent election agreement definitely fixed the date
of eligibility as of July 31, 1942, and it made no provision for disqualifying any
eligible voter in the event that his employment status underwent a change prior
to the election, except in the case of resignation or discharge-for cause.
The undersigned further, finds from the evidence that Thomas voted in the
election of September 2. and that his ballot should be counted, as he was within
the appropriate unit and was eligible to vote in accordance with the "Agreement
for' Consent Election" The undersigned further finds, upon inspecting the chal-
lenged ballot of Thomas, that he voted against the Union.
In accordance with the above, the undersigned finds that the ballot of John E.
Nolan should not be counted, and that the ballot of Clyde "O. Thomas should be
counted as against the Union, which would make the result of the election show
that a total of 32 ballots were cast one of which (Nolan's) is in doubt as to whether
he voted for or against the Union If Nolan voted for the Union, the result
would be 31 ballots for the Union and 31 against the Union. If he voted against
the Union, the result would be 32 ballots for and 30 against the Union. In view
of the doubt, in respect to Nolan's vote, the undersigned is unable to find from
the record that the Union, as a result of the consent election held on September 2,
1942, represented a majority of the employees in the unit agreed upon by the
parties, as alleged in the complaint. -
Having found that the evidence does not sustain the allegations of the com-
plaint that the Union represented a majority of the employees in an appropriate
unit, the undersigned finds that the respondents have not engaged in the alleged
unfair labor practices Therefore, the undersigned will recommend that the
complaint be dismissed in its entirety.10
' CONCLUSIONS OF LAW
1. The operations , of the respondents , Capitol Greyhound Lines , and Capitol
Greyhound Lines of Indiana , Inc., constitute a continuing flow of trade , traffic
and commerce among the several States of the United States, within the mean-
ing of Section 2 (6) of the Act.
2 Amalgamated Association of Street , Electric Railway & Motor Coach Em-
ployees of America, Division 1299, A. F. of L, affiliated with the American Fed-
eration of Labor, is a labor organization within the meaning of Section 2 (5)
of the Act. -
3. The respondents have not engaged in unfair labor practices , within the mean-
ing of Section 8 (1) and ( 5) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, the undersigned hereby recommends that the complaint
10 The burden of proving that the Union represented a majority of the employees in
the appropriate unit, as 'a result of the election on September 2, 1942, rested upon the
Board No evidence of a majority, based upon any other ground, was introduced by the
Board.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the respondents, Capitol Greyhound Lines and Capitol Greyhound Lines
of Indiana, Inc., Cincinnati, Ohio, be dismissed in its entirety.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party. may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washing-
ton, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
-further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
W. P. WEne
Trial Examiner.
Dated February 18, 1943.