Capitol Theatre Bus Terminal, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1939

16 N.L.R.B. 104 (N.L.R.B. 1939)

In the Matter of CAPrrOL THEATRE Bus TERMINAL, INC. and TRANSPORT
WORKERS UNION OF AMERICA
Case No. C-1124.-Decided October 18, 1999
Motor Bus Transportation Industry-Interference, Restraint , and Coercion:
charges of , not sustained-Discrimination .: charges of , not sustained-Complaint:
dismissed-Procedure: interval of time elapsed since close of hearing and filing
of motion to amend complaint not prejudicial to respondent where motion sought
to allege more specifically an issue which had been fully tried under the more
general allegation.
Mr. Albert Ornstein, for the Board.
Bond, Sch,oeneck and King by Mr. Tracy H. Ferguson., of Syracuse,
N. Y., and Mr. Ivan Bowen, of Minneapolis, Minn., for the respondent.
Mr. Samuel Sacker, of New York City, for T. W. U.
Mr. Allan 'Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges filed February 15, 1938, by Transport Workers Union
of America, herein called the T. W. U., the National Labor Relations
Board, herein called the Board, by the Regional Director for the Sec-
ond Region (New York City), issued and duly served its coin-
plaint, dated May 2, 1938, against Capitol Theater Bus Terminal,
Inc., New York City, herein called the respondent, alleging that, the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. A copy of the complaint and the notice
of hearing thereon were duly served upon the respondent and the
T. W. U.
The complaint alleged, in substance, that the respondent discharged
and refused to reinstate Joseph Tanenhaus on January 15, 1938, be-
cause he joined and assisted the T. W. U. and engaged in other con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection; and that the respondent urged, persuaded,
16 N. L. R. B., No. 14.
104
CAPITOL THEATRE BUS TERMINAL, INC. 105
and warned its employees to refrain from becoming or remaining
members of the T. W. U., and has threatened said employees with
discharge and other reprisals if they became or remained members
thereof. On May 9, 1938, the respondent filed an answer in which it
admitted that it was engaged in interstate commerce but denied that it
had engaged in any unfair labor practices. The respondent, on Au-
,rust 22, 1938, filed with the Regional Director a motion requesting a
bill of particulars, ruling. on. which. was reserved for the Trial
Examiner.
Pursuant to the notice, a hearing was held in New York City on
August 25, 26, 27, and 29, 1938, before Henry W. Schmidt, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and the T. W. U. were represented by counsel. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded all parties. At the com-
mencement of the hearing the respondent requested a ruling on its
motion for a bill of particulars. The Trial Examiner denied the mo-
tion. At the conclusion of the Board's case counsel for the respond-
ent moved that the complaint be dismissed for lack of proof. This
motion was denied. At the close of the hearing counsel for the Board
moved that the pleadings be conformed to the proof adduced at the
hearing. The motion was granted. During the course of the hearing
the Trial Examiner made several other rulings on motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On January 6, 1939, after the close of the hearing, counsel for the
Board moved to amend the complaint so as to include an allegation
that the respondent had discharged Tanenhaus because he had dis-
couraged membership in a labor organization known as the Inter-
state Motor Coach Employees' Association, Inc., herein called the
Association. The motion was denied by the Trial Examiner in his
Intermediate Report which was filed on January 19, 1939. As ap-
pears below, the motion: merely sought to allege more specifically an
issue which had been fully tried under the more general allegation
that the respondent had discharged Tanenhaus because he engaged in
concerted activities for the purposes of collective bargaining and other
mutual aid and protection. We conceive of no possible prejudice to
the respondent by reason of the interval that had elapsed since the
close of the hearing and the filing of the motion. The ruling of the
Trial Examiner is, therefore, reversed, and the motion to amend is
hereby granted.'
1 Cf. Rule ro (b) of the Federal Rules of Civil Procedure which provides:
"Amendments to Conform to the Evidence. When issues not raised by the pleadings are
tried by express or implied consent of the parties, they shall be treated in all respects as
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his Intermediate Report, copies of which were duly served on
all parties, the Trial Examiner found that the respondent had en-
gaged in and was engaging in unfair labor practices, within the
meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and
recommended that the respondent cease and desist from its unfair
labor practices and take certain affirmative action to remedy the
situation brought about by those practices: On January 25, 1939, the
respondent filed exceptions to the Intermediate Report, and on Feb-
ruary 28, 1939, filed a brief in support of its exceptions. On Sep-
tember 19, 1939, pursuant to notice duly served upon the respondent
and the T. W. U., a hearing was held before the Board in Wash-
ington, D. C., for the purpose of oral argument. , The respondent
appeared by counsel and presented oral argument to the Board. At
that time a telegraphic request by counsel for the T. W. U. for leave
to file a brief in lieu of oral argument was noted and, with the
consent of counsel for the respondent, the request was granted and
the respondent was allowed additional time to file a brief in reply.
The T. W. U., however, did not avail itself of the opportunity to file
a brief.
The Board has considered the exceptions and the brief in support
thereof -and, save as they are inconsistent with the findings, conclu-
sions, and order set forth below, the exceptions are sustained.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Capitol Theatre Bus Terminal, Inc., is a New
Jersey Corporation engaged in the business of operating a bus ter-
minal in the City of New York. It furnishes terminal facilities, sells
transportation tickets, dispenses travel information, and loads baggage
and passengers on busses for and on behalf of 13 different bus com-
panies.2 Approximately 200 motor busses enter and leave the re-
spondent's bus terminal daily, bound for and coming from various
parts of the United States and Canada.
II. THE ORGANIZATION INVOLVED
Transport Workers Union of America is a labor organization affil-
iated with the Committee for Industrial Organization. Its jurisdic-
if they had been raised in the pleadings . Such amendment of the pleadings as may be neces-
sary to cause them to conform to the evidence and raise these issues may be made upon
motion of any party at any time , even after judgment ; but failure so to amend does not
affect the result of the trial of these issues . . .
2 These include the following companies : Greyline Motor Tours, Inc., Champlain Coach.
Lines, Inc., Pc;nnsylvania Greyhound Lines, Inc., Central Greyhound Lines , Inc., New
England Greyhound Lines, Inc ., Greyhound Management Company , New England Transpor-
tation Company, Old Colony Coach Lines, Asbury Park New York Transit Company, Central:
Transportation Company , Public Service Coordinated Transport Lines.
CAPITOL THEATRE BUS TERMINAL, INC. 107
tion extends over all classes of vehicles with the exception of steam
railroads. All workers except supervisory employees are eligible to
membership. I ,
Interstate Motor Coach Employees' Association, Inc., is an unaf-
filiated labor organization, admitting to membership employees of the
respondent as well as other employees engaged in the motor-bus
industry. The precise limit of its jurisdiction is not disclosed by the
record.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Trial Examiner found that the respondent discharged Joseph
Tanenhaus on January 15, 1938, for engaging in "concerted activities
for the purpose of collective bargaining and other mutual aid and
protection." The respondent contends that it was unaware of Tanen-
haus' "concerted activities" and that he was discharged for reasons
having no connection with such activities.
In May, 1937, a mimeographed statement addressed to "all clerical
employees of Greyhound Lines in the New York Division," and con-
cluding with the words "Employees of the New York Division," ap-
peared on the respondent's bulletin board. The notice in effect stated
that the employees of the "New York Division" had rejected the claims
of two national unions 3 and had decided to form an independent or-
ganization of their own. It further stated that the purpose of the
independent union was to unite all employees of the Greyhound Lines
into one organization without recourse to "outside organizations."
Sometime in September the Association, which was the outgrowth of
the plan set forth in. the afore-mentioned notice, began its activities
among the respondent's employees. Several meetings of the em-
ployees were held during the months of October and November, at
which representatives of the Association sought to induce the respond-
ent's employees to form a local of the Association. Promises were
made to the effect that if the employees formed a local of the Associa-
tion they would be able to secure a 5-per cent increase in pay as a
result of the Association's bargaining power.
Tanenhaus, together with a number of other ticket agents, was op-
posed to the Association. Tanenhaus testified that his opposition was
based upon his belief that it was company dominated. He, together
with other employees, favored the formation of a union composed
solely of the respondent's employees. The views of the employees
were freely expressed in conversations among themselves and at the
meetings referred to above.
Sometime in November Tanenhaus, together with Moriarity, Jef-
fries, and Bell, three other ticket agents, decided to investigate the pos-
8 Brotherhood of Railway Trainmen and the Amalgamated Association of Street , Railway
and Motor Coach Employees.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibilities of affiliating with the T. W. U. They interviewed officers of
that union and were told that the executive council had not as yet de-
cided to campaign for membership among the employees of the Grey-
hound lines . Several days later Tanenhaus signed an application for
membership in the T. W. U. However, there ,is no evidence that the
respondent was ever aware of Tanenhau 's' affiliation with the T. W. U.,
and we agree with the finding of the Trial Examiner that Tanenhaus
was not discharged because of membership in, or activities on behalf
of, the T. W. U.
At a meeting of the employees , held late in November , Tanenhaus
moved that a committee be appointed to investigate labor organiza-
tions generally and report back to the group before any affiliation was
decided 'upon. This inotioir was pissed ' and Tanenhaus was appointed
chairman of the investigating committee . A notice setting forth the
name of Tanenhaus and several other committeemen was posted on
the respondent 's bulletin board on November 24, 1937. Several meet-
ings of the committee were held at Tanenhaus ' home during the latter
part of November and the early part of December . Tanenhaus testi-
fied that the committee came to the conclusion that the Association
was company dominated and agreed to investigate other labor organi-
zations. However, no further action was taken by the committee for
reasons which appear below.
On or about December 9, 1937, Edmond Callahan , a ticket agent of
the respondent , was engaged in a conversation by Phillip McCormick,
an employee of the Central Greyhound Lines, Inc., and one of the
originators of the Association . During the course of the conversation
McCormick inquired why the ticket agents were the only employees
"holding out" from joining the Association . McCormick also wanted
to know why Tanenhaus was investigating "outside unions. " Calla-
han informed him that Tanenhaus had been appointed as chairman of
a committee to investigate such unions . McCormick also inquired
about the activities of one Mason, but when he was told that Mason
was inactive he dropped the subject. McCormick advised Callahan to
tell the ticket agents to get ""Wise to themselves ," join the Association,
and get the 5-per cent raise in pay that the Association would be able
to get for them. A few days later Callahan told Tanenhaus of his
conversation with- McCormick and advised him to drop whatever he
was doing and join the Association . Tanenhaus acted upon Calla-
han's advice and immediately joined the Association. He also urged
other ticket agents to do the same. Twelve or thirteen other em-
ployees followed Tanenhaus ' suggestion.
On December 13 the respondent 's employees agreed to accept a
charter from the Association contingent upon the promise of its offi-
cers to grant the local autonomy of action ; a guarantee that the,
CAPITOL THEATRE BUS TERMINAL, INC. - 109
local would not be held liable for the debts of the Association; and
certain other concessions.
On or about December 20 Moriarity, who had been on vacation
when the employees decided to accept the charter from the Associa-
tion, returned. He learned of the employees'- affiliation with the
Association and also discovered that his name had been used as a
charter member of the local. On December 23 Moriarity wrote a
letter to the Association in which he stated that he was not a mem-
ber of the local and therefore requested it to destroy all matter pur-
porting to show that he approved of or was in any way connected
with the Association. On December 31 the Association replied by
letter and apologized for the error made. Thereafter, however,
Moriarity refused to have anything to do with the Association or the
local.
On or about January 6, 1938, Tanenhaus discussed with Moriarity
and Jeffries the advisability of withdrawing from the Association
because the Association had failed to grant all the concessions de-
manded at the December 13 meeting. As a result of this discussion
Tanenhaus drew up'a petition of resignation which he circulated for
signature among the employees. After securing the signatures of 10
employees to the petition, Tanenhaus prepared to present the petition
at a meeting of the Association held on January 7. However, at
this meeting Maney, vice president of the local, read a letter from
the Association enlarging upon the concessions granted to the local.
Because of these further concessions Tanenhaus decided not to pre-
sent -the- petition.
On January 15 Tanenhaus was discharged by George Brannan,
the general manager of the respondent, who told him that he was
being discharged because of the slow season then beginning.
Prior to the 1937-38 winter season, the respondent had maintained
a system of granting payless furloughs in addition to the usual 2-
week vacation with pay. This system extended the time the em-
ployees were away from the terminal on vacation and thus allowed
the respondent to retain certain employees which it might not other=
wise have needed during slow seasons. 'Brannan testified that at a
meeting of -the 'managers of various bus companies held in Washing-
ton, D. C., in September 1937, he discussed with other managers the
merits of giving payless furloughs; that it was the consensus of the
managers present that the system of payless furloughs was poor per-
sonnel management; and that the slack season should be used as a time
to eliminate employees whom the management believed least efficient.
As a result of this discussion, Brannan testified he decided to aban-
don the system of payless furloughs. Brannan further testified that
as a consequence of this decision it became apparent that he would
110 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to dispense with the services of one. ticket agent, and that he
decided that Tanenhaus should be the one discharged.
Brannan testified that he chose Tanenhaus as the ticket agent to
be discharged because, in his judgment, Tanenhaus, when compared
with his other ticket agents, lacked the qualifications of a good ticket
agent; that he was a "minute man," meaning he came and left work
exactly on time, while other, ticket agents would often work overtime
to clean up their lines of customers; that Tanenhaus was "phleg-
matic," and "I never considered him able to sell anybody over the
counter-and I do not think he was the type that impressed passen-
gers or prospective buyers with what I believed was good service."
He further stated that Tanenhaus' shirt, collar, neckties, and shoes
were not "up to what I call standard"; that Tanenhaus was study-
ing accountancy and not likely to continue in the bus industry; and
that his best field "was accountancy as against any selling job."
Tanenhaus denied that he was a "minute man," claiming that he had
often worked from 15 to 45 minutes overtime. He admitted that on
occasions he had called the special officer to move his line, but testified
that this,was customary, and that other agents had done so. James
Jeffries, a fellow ticket agent, testified that Taneiihaus' appearance
compared favorably with other ticket agents; and that Tanenhaus'
ticket sales were often among the highest. The record also shows that
another employee was known by Brannan to be studying law at night
and thus would not be likely to continue in the bus industry.
,17Thile we are not persuaded by the evidence that Tanenhaus was the
least efficient of the ticket agents employed by the respondent, we are
unable to find that he was discharged for engaging in concerted activi-
ties as alleged in the complaint. Although Tanenhaus engaged in such
activities, we have noted above that other ticket agents were equally
active, if not more so. More important, there is no showing either that
the respondent desired its employees to affiliate with the-Association or
that the respondent, which denied any knowledge, knew of Tanenhaus'
opposition to the Association. An attempt was made to prove that
McCormick, to whose inquiry and remarks about Tanenhaus we have
referrred to above, was more•than an ordinary employee and that his
actions were attributable to the respondent. In this connection it was
shown that McCormick occupied the position of business secretary to
Jay L. Sheppard, vice president of the Central Greyhound Lines, Inc.,
and the respondent. It was also established that McCormick, in con-
junction with his wife and other relatives, operated a small ticket
agency in Jersey City, New Jersey, which sold tickets for the Grey-
hound Lines. This evidence, however, falls short of proof that McCor-
mick's position was such as to make his acts those of the respondent.
Nor may McCormick's remarks be found to express the respondent's
CAPITOL THEATRE BUS TERMINAL, INC. 111
attitude, since his inquiry into the activities of the respondent's em-
ployees may be ascribed to his interest as one of the originators of the
Association.
We find that the respondent did not discriminatorily discharge
Joseph Tanenhaus as alleged in the complaint.
No evidence was introduced in support of the allegation in the com-
plaint to the effect that the respondent had urged, persuaded, and
warned the employees to refrain from becoming or remaining members
of the T. W. U.
Since none of the allegations of unfair labor practices contained in
the complaint have been found to be supported by the evidence, we will
dismiss the complaint in its entirety.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following : .
CONCLUSIONS OF LAW
1.. The operations and business of the respondent constitute trade,
traffic, and commerce among the several States, within the meaning of
Section 2 (6) and (7) of the Act.
2. Transport Workers Union of America and Interstate Motor Coach
Employees' Association, Inc., are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
3. The respondent has not interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, within the meaning of Section 8 (1) of the Act.
4. The respondent has not, by the discharge of Joseph Tanenhaus,
engaged in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the com-
plaint against the respondent, Capitol Theatre Bus Terminal, Inc.,
New York City, be, and it hereby is, dismissed.