Union Bus Terminal of Dallas, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1952

98 N.L.R.B. 458 (N.L.R.B. 1952)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNION Bus TERMINAL OF DALLAS, INC. and TRANSPORT WORKERS
UNION OF AMERICA, CIO. Case No. 16-CA-228. March 5, 1952
Supplemental Decision and Order
On November 30, 1951, the Board issued its Decision and Order in
the above-entitled case.' On December 7, 1951, the Union filed a
motion for rehearing,, in which it requested the Board to reconsider
its Decision and Order. The Union asserts that the Board erred in
dismissing the complaint in its entirety, by failing to find (1) that the
Respondent refused to bargain in good faith with the Union in viola-
tion of Section 8 (a) (5) of the Act; (2) that the strike of December 24,.
1949, was caused by the Respondent's unfair labor practices; (3) that
the Respondent's notice of December 26, 1949, to the strikers violated
Section 8 (a) (3) and (1) of the Act; (4) that the replacements
employed on January 10, 1950, were temporary replacements; and
(5) that job vacancies existed on January 10, 1950.
The Union's request for oral argument is denied because the record
and the Union's motion, in our opinion, adequately present the issues
and positions of the parties.
After consideration of the Union's motion in the light of the entire
record in this case, the Board, for the reasons stated in its original
Decision and Order in-this matter, hereby denies the motion,2 except
in the following respect :
Our finding that the jobs of all 30 strikers had been filled by
permanent replacements on January 10, 1950, was erroneous with
respect to one job, that of Betty Lundy, an information clerk. We
must therefore reconsider the allegation in the complaint, as it applies
to Lundy, that the strikers applied for reinstatement on January 1G
and that the Respondent discriminatorily refused to reinstate them
because of their union or concerted activities.
On January 10, 1950, in a letter presented to the Respondent, the
Union made an offer on behalf of the strikers to return to work. The
Respondent made no reply to this letter. These facts comprise the
prima facie case of discrimination against the Respondent.
In defense, the Respondent contends initially that the Union's.
January 10 letter was not an unconditional offer on behalf of the
strikers to return to work. However, as found by the Trial Examiner
and as stated in our original Decision and Order, we find that the
January 10 offer was unconditionally made.
197 NLRB 206.
2 In further support of the dismissal of the 8 ( a) (5) allegation in the complaint, see
The Advertiser Company, Inc ., 97 NLRB 604.
98 NLRB No. 68.
UNION BUS TERMINAL OF DALLAS , INC. 459
The Respondent further contends, as reflected by testimony at the
hearing and in its briefs, that it was under no obligation to return
any of the strikers to work for two reasons : (1) Each of the strikers
had precipitately terminated his or her employment, not only by
striking on December 24, 1949, but also by continuing on strike instead
of returning to work upon receipt of the Respondent's telegram 2
days later; and (2) the strikers were, before the January 10 offer to
return to work, permanently replaced.
The latter reason is, in our view, of no moment. For even assuming
that the replacement hired for Lundy was permanent, the replacement
was discharged before January 10, and the Lundy job remained
vacant through that date. The Union's January 10 offer to return
was an application for that vacancy as well as for other jobs. The
Respondent did not reply to the offer because, in its view, the strikers'
continuing concerted activities relieved it of any obligation to con-
sider applications by strikers for vacancies. As the Respondent's
refusal to consider this application was therefore admittedly moti-
vated by the strikers' concerted activity, it is clear that that action was
discriminatory. Because this discriminatory action of the'Respond-
ent deprived Lundy of being placed in the job she formerly held, we
find that the Respondent discriminated against her in violation of
Section 8 (a) (3) and (1).3
The activities of the Respondent set forth above, occurring in
connection with the operations of the Respondent described in section
I of the Intermediate Report,' have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to disputes burdening and obstructing commerce and the
free flow of commerce.
The Remedy
Having found that the Respondent engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
' See National Grinding Wheel Company, Inc , 75 NLRB 905 , 907-8. Member Murdock
desires to make clear that he joins in the conclusion that Respondent violated the Act
by refusing to act favorably on Lundy ' s application for the vacancy in her old job, solely
because he believes that a nondiscriminatorily motivated employer would normally prefer
an old experienced employee for a vacancy rather than hire an untried outsider, absent
evidence not here present of a specific valid reason for preferring the outsider. Consistent
with this theory that Lundy was discriminated against as an applicant for new employment
he would simply order her instatement with back pay, rather than reinstatement "without
prejudice to her seniority or other rights and privileges " as the Board's order provides.
He would not reach or decide the question whether as a matter of law an initial permanent
replacement of an economic striker permanently extinguishes her preexisting right to
return to her job, or whether, if the replacement has fortuitously vacated the job when
there is outstanding an unconditional offer to return to work, the striker then becomes
revested with the same right which she had prior to the permanent replacement , to return
to her •job "without prejudice to her seniority or other rights and privileges."
* Attached to the original Decision and Order in this case, 97 NLRB 206.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found the Respondent has-discriminated in regard to
the hire and tenure of Betty Lundy. We shall order that the Respond-
ent offer to her immediate reinstatement in her former or substantially
equivalent position,,' without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of pay she may have
suffered as a result of the discrimination against her, by payment
to her of a sum of money equal to that which she would have earned as
wages from January 10, 1950, to November 30, 1951, the date of the
original Decision and Order in this matter, and from the date of this
supplemental Decision and Order to the date of offer of reinstatement.
Loss of pay will be computed on the basis of each separate calendar
quarter or portion thereof in the manner established by the Board in
the case of F. W. Woolworth Co., 90 NLRB 289. Loss of pay shall be
determined by deducting from a sum equal to that which she would
normally have earned for each quarter or portion thereof, her net earn-
ings," if any, in other employment during that period. Earnings in
one particular quarter shall have no effect upon the back-pay liability
for kny other quarter. In accordance with the Woolworth decision,
supra, we shall also order that the Respondent, upon reasonable request,
make available to the Board and its agents all records pertinent to
an analysis of the amount due as back pay.
The unfair labor practice found reveals on the part of the Respond-
ent such an antipathy to the objectives of the Act as to justify an
inference that the commission of other unfair labor practices may
be anticipated. The preventive purposes of the Act may be frustrated
unless our order is coextensive with the threat. We shall therefore
order that the Respondent cease and desist from in any manner
interfering with, restraining, or coercing its employees in the exercise
of rights guaranteed by the Act.
- Upon the basis of the foregoing findings of fact and upon the
entire record in the case, we make the following:
Conclusions of Law
1. Transport Workers Union of America, CIO, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of,employ-
ment, the Respondent has engaged, in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the
'The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
05 NLRB 827.
, Crossett Lumber Company , 8 NLRB 440.
UNION BUS TERMINAL OF DALLAS, INC.4461
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
4. 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 basis of the foregoing findings of fact and conclusions
of law, and upon the entire record in the case, the Board orders that
Union Bus Terminal of Dallas, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership. in Transport Workers Union of
America, CIO, or in any other labor organization of its employees,
by discriminatorily discharging or refusing to reinstate any of them,
or by discriminating in any other manner in regard to their hire
or tenure of employment, or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Transport Workers Union
of America, CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in collective bargaining or other•nnltual aid or protection, or to refrain
from any or all such activities except to the extent that such right
may be. affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Betty Lundy immediate and full reinstatement to
her former or substantially equivalent position `rithout prejudice
i o her seniority or other rights and privileges.
(b) Make whole Betty Lundy in the manner set forth in the section
above entitled "The Remedy.",
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due.
(d) Post at its terminal in Dallas, Texas, copies of the notice
attached hereto and marked "Appendix A." 7 Copies of such notice,
° In the event this Order is enforced by decree of a United States,Court of Appeals, there
shall be substituted for the words, "Pursuant to a Supplemental Decision and Order,"
the words , "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be furnished by the Regional Director for the Sixteenth Region,
shall after being duly signed by the Respondent's authorized repre-
sentative be posted by the' Respondent immediately upon receipt
thereof, in conspicuous places, including all places. where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from receipt of this Decision and Order
what steps the Respondent has taken to comply herewith.
MEMBER HOUSTON took no part in the consideration of the above
Supplemental Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees by discriminatorily discharging, laying off,
or failing to reinstate any of our employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of
employment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist TRANSPORT WORKERS
UNION OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to Betty Lundy immediate and full reinstate-
ment to her former or substantially equivalent position without
loss of seniority or other rights and privileges and make her
whole for any loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
WESTINGHOUSE ELECTRIC CORPORATION 463
oor conditions of employment against any employee because of his
,membership in or activity on behalf of any such labor organization.
UNION Bus TERMINAL OF DALLAS, INC.,
Employer.
By -----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
WESTINGHOUSE ELECTRIC CORPORATION and WESTINGHOUSE SALARIED
EMPLOYEE ASSOCIATION AT SOUTH PHILADELPHIA, AFFILIATED WITH
FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS,
PETITIONER. Case No. 4-RC-1293. March 5, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold Kowal, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) aild Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner currently represents approximately 500 professional
-employees of the Employer in a unit established by the Board. West-
inghouse Electric Corporation, 89 NLRB 8. By its petition herein,
the Petitioner seeks to add to this group approximately 36 field serv-
ice engineers, who are not now and never have been represented by any
labor organization. The Employer, while admitting that the field
service engineers are professional employees, contends that because of
their diverse geographical locations they cannot be appropriately
aepresented either as part of the established unit or in a separate unit.
98 NLRB No. 71.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The field service employees are stationed in various parts of the coun-
try at Government aviation stations, where they are engaged in super-
vising the maintenance of, and instructing others in the use of, the
equipment manufactured by the Employer. They report at least once
a week to the head of the field service department, who supervises
them and also supervises the home service engineers and the technical
writer attached to his department; the home service engineers and the
technical writer are included in the unit currently represented by the
Petitioner. The home service engineers answer the technical inquiries
made by the field service engineers. They receive about the same
amount of pay. Home service engineers have transferred to field
service and field service engineers to home service.
In view of the foregoing, and as the Petitioner has expressed its
desire to accept these employees as part of the existing unit, we find
that the field service engineers may be included in the unit with the
employees currently represented by the Petitioner.
The Employer has recently promoted three field service engineers to
service area supervisors in three newly established area offices. As
these area supervisors have the power effectively to recommend hire
and wage increases, they are supervisors within the meaning of the
Act and shall be excluded from the unit.
Accordingly, we shall direct an election in Lester, Pennsylvania, in
the following voting groups : All aviation gas turbine division field-
service engineers reporting to the Employer's South Philadelphia
Works in Lester, Pennsylvania, excluding all other employees and all
supervisors as defined by the Act. If a majority of the field service
engineers vote for the Petitioner, they will be taken to have indicated
their desire to join the employees in the existing unit; the Petitioner
may then bargain for them as part of such unit, and the Regional
Director is instructed to issue a certification of representatives to that
effect.
[Text of Direction of Election omitted from publication in this
volume.]
EATON BROTHERS CORP. and TEXTILE WORKERS UNION of AMERICA,
C. I. O. Case No. 3-CA-X65. March 6, 1,952
Decision and Order
On July 11, 1951, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
98 NLRB No. 82.