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National Labor Relations Board v. Public Service Co-Ordinated Transport

decided: September 6, 1949.


Author: Mclaughlin

Before BIGGS, Chief Judge, and McLAUGHLIN and O'CONNELL, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is a petition by the National Labor Relations Board for enforcement of its order against respondents following a proceeding under Section 10 of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 160.

Respondents operate and maintain a completely integrated system of public passenger transportation effective throughout the state of New Jersey. Public Service Interstate Transportation Company conceded at the hearing that it is engaged in interstate commerce. Public Service Coordinated Transport was found by the Trial Examiner, upon substantial evidence, to be engaged in interstate commerce within the meaning of the Act and that finding was affirmed by the Board. The unions involved are Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, affiliated with the American Federation of Labor, and United Transport Workers of America, unaffiliated.Amalgamated, an intervenor here, has maintained contractual relations with the respondents and their predecessors for twenty-seven years. United was incorporated February 26, 1946, and held its first meeting March 10, 1946. It was organized by Sconfienza and a small group of former members of Amalgamated most of whom at least had participated in an unauthorized strike against respondents on November 18, 1942.

The Board's decision and order found that respondents had violated Section 8(1) of the Act, 29 U.S.C.A. § 158(1); namely, that they had interfered with, restrained or coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157.*fn1 This was based on certain acts of respondents' employees, Messrs. Belknap, Modersohn and Dick. The Board also upheld the Trial Examiner in his finding that the respondents had discriminated against their employee, Frederick C. Sconfienza, by suspending him from employment. The Board held that respondents by so doing had violated Section 8(3) and Section 8(1) of the Act. The Board ordered that the respondents cease and desist from discouraging membership in the United or any other labor organization of their employees, or encouraging membership in the Amalgamated; that Sconfienza be offered reinstatement with reimbursement of lost pay and that copies of the notice attached to the order be posted throughout respondents' transportation system in the State of New Jersey.

The Belknap, Modersohn and Dick Activities.

On March 19, 1946, Belknap was assistant depot master at respondents' Englewood garage. The Trial Examiner found that some time that evening, Holden and Altana, two men connected with United, appeared at the garage to interview a bus cleaner and solicit his membership in United. Altana entered the garage and was ordered off the premises by Belknap. Altana and Holden, in testimony accepted by the Trial Examiner, say that following this they saw Belknap in the operating room talking to several individuals who were apparently cleaners employed at the garage. They say the door to the room was closed and that a glass panel of the door was painted completely black. There was, however, according to them, a sizable chip in the paint and it was through this that Altana made observations. Holden said he was able to see through a window. Also, as the Trial Examiner paraphrases their testimony, they say the transom over the door was open and they heard Belknap advise the men in the room "that they should not join 'another' organization, that he had known Arthur Seward [Amalgamated business agent] for a long time, that Seward was a good man and that the employees would be well off in sticking with the union to which they belonged." Altana said Belknap concluded by stating, "If any of you fellows get caught talking to that fellow you might lose your job."

In examining this and the other two occurrences involved we appreciate of course "that it is the province of the Board as the fact-finder to resolve the conflicts in the testimony and to appraise the credibility of the witnesses." N.L.R.B. v. Sun Shipbuilding & Dry Dock Co., 3 Cir., 135 F.2d 15, 25. The present problem goes beyond that. It is whether the three incidents amount to substantial evidence of respondents' violation of Section 8(1).

Belknap, formerly a bus driver, had advanced to what seems to be a step beyond that rank. He was at the lowest of the supervisory group but was not actually himself a supervisor. He assisted the depot master in the receipt of the bus operators' monies and in various other clerical functions. The only persons identified as having talked with him were Foster and Shaver, both of whom were cleaners and fuel men. Foster testified that his boss was a foreman named Jesson and that Belknap did not give him any orders. Foster was in the bus operators' room to get away from Altana whom he did not wish to see, because he was satisfied with Amalgamated. Belknap said he believed Shaver was in the room for the same reason, and this was not contradicted. Shaver was not a witness. Belknap said what happened was that after Foster had told him Altana was in the garage, he went out and ordered Altana off respondents' property. On his return, after Foster had stated that he was satisfied with Amalgamated, Belknap said, "I don't blame you. As far as I am concerned, I have belonged to unions for a good many years and I have never belonged to any of them that worked harder for their men than Artie Seward."

Accepting, as we do, the Board's interpretation of the episode, we cannot see that interference, restraint or coercion by the employer is fairly inferable or that it "had the slightest effect in actually preventing or discouraging membership" in the United. Quaker State Oil Refining Corp. v. N.L.R.B., 3 Cir., 119 F.2d 631, 633. See also Humble Oil & Refining Co. v. N.L.R.B., 5 Cir., 113 F.2d 85, 92.

The remaining incidents are, if anything, more trivial. In the first of these, the Board found that Supervisor Modersohn unlawfully interfered with Altana's activities on behalf of Amalgamated at respondents' Englewood garage on March 21, 1946. At that time Modersohn was told by Altana that his continued presence at the garage, where he could be seen by the employees, would operate to prevent the signing up of any of the men. Modersohn replied that he had intended to leave, but in view of Altana's protest he would stay a while just for spite. We are unable to infer from this any substantial evidence to support the Trial Examiners' finding that, "Modersohn's statement that he intended 'to stick around' in the light of all the circumstances, clearly represents an effort to achieve the objective protested by Altana". We think rather that Modersohn's reaction showed a natural resentment on his part - the reluctance of a supervisor to submit to being ordered away from the vicinity of his employer's garage by a former employee who was there attempting organizational work for the United. The circumstance is isolated. It is not flagrant. It does not "indicate a purpose to interfere with the exclusive right of the employees to engage in organizational activities for the purpose of collective bargaining, as guaranteed by the Act." N.L.R.B. v. William Davies Co., 7 Cir., 135 F.2d 179, 181, certiorari denied, William Davies Co. v. N.L.R.B., 320 U.S. 770, 64 S. Ct. 82, 88 L. Ed. 460.

The last item on this branch of the case took place on March 23, 1946 during a visit by Altana and Holden to respondents' Hackensack garage. According to Holden, on whose testimony the Trial Examiner relied, Altana started to talk to a group of respondents' employees who were at the rear of the garage on their lunch period. Holden said that while this was going on, garage foreman Dick, Seward and the supervisor of the Hackensack garage, were standing in back of an open doorway about five or six feet from Altana. Holden stated, "It looked as though they were just walking through the doorway." Holden said the lunch hour was from 12:00 to 12:30, but that the usual whistle was not blown at 12:30. He said he checked a second time to see if the three men were still back of the door, and they were. The Trial Examiner concluded "that Altana and the employees were permitted to remain in ignorance of the fact that solicitation of the latter had extended into working time." The Board found that the incident constituted "unlawful surveillance by garage foreman Dick of the organizational efforts of Altana among garage mechanics * * *." Dick explained the delay in the blowing of the whistle by the fact that both he and his assistant foreman, whose duty it was to blow the whistle, had been busy with a New Jersey Public Utility Commission inspector up until about 12:40 and that when he came into the garage at that time and found the men had not returned to work he himself "* * * blew the whistle and started walking out to the room where the men generally eat their lunch."*fn2 Holden did not hear what Altana told the garage employees on this occasion and it is to be noted that Altana, though a witness, did not testify regarding this particular matter at all.

We agree that "Any real surveillance by the employer over the Union activities of employees, whether frankly open or carefully concealed, falls under the prohibitions of the Act." N.L.R.B. v. Collins & Aikman Corporation, 4 Cir., 146 F.2d 454, 455. In N.L.R.B. v. Baldwin Locomotive Works, 3 Cir., 128 F.2d 39, 50, we said: "* * * the use of detectives as labor spies to report on 'outside' union activities of employees justified an inference of company support of existing 'inside' unions and interference with the employees' freedom of choice. (Citing cases.) This is so even in the absence of a showing that specific use was made of the information so obtained or that the employees were aware that they were being or had been spied upon." We fail to find substantial evidence of any true surveillance in this instance. Under Holden's testimony at its credited value, while Altana was making his open solicitation, Dick was within the garage where he had every right and duty to be.He may or may not have heard what Altana said. We have no evidence as to what Altana did say. He does not tell about it and Holden does not know. In addition, there is no evidence that Dick made observations as to who was at the gathering or regarding specific reactions of individuals. There is not the slightest inference of any results arising out of Dick's presence.Assuming that Dick, within the garage, had his attention attracted by Altana's talk to the men at the rear of the garage and that he listened to it and that he blew the whistle ten minutes late, the sum total of these details does not add up to the surveillance prohibited by the Act. This was no secret meeting of employees Altana would seem to have expected Dick's presence, for according to Holden, when he told Altana that Dick might be able to hear what he said, Altana replied, "That is fine. I will keep right on talking."

Nor do we think that the Belknap, Modersohn and Dick situations, such as they were, are to be attributed to the employer. The record shows twenty-seven years of peaceful labor relations between respondents and their employees. The one interruption of that peace was the unauthorized strike above mentioned in which Altana, Holden and Sconfineza were prominent. Against that background the Board holds the respondents responsible for: (1) The casual comments made by Belknap to two employees (over one of whom he definitely had no authority whatsoever); (2) The stubborn refusal of Modersohn to permit an ex-employee of respondents to humiliate him by driving him away from respondents' Englewood garage; and (3) The fact that Dick, at the respondents' garage where he was in charge, may have heard Altana's open solicitation to the garage employees which was apparently just what Altana expected and desired. We do not see that these activities could have been reasonably assumed by employees to have been management inspired and there is no proof tending to show that they were actually so regarded. They are minor, unrelated acts which fail to reveal either employer pattern of conduct as in N.L.R.B. v. M. E. Blatt Co., 3 Cir., 143 F.2d 268, or the totality of company activities called for by N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 477, 62 S. Ct. 344, 86 L. Ed. 348. In our judgment they did not constitute interference, ...

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