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National Labor Relations Board v. Aurora City Lines Inc.

February 2, 1962


Author: Hastings

Before HASTINGS, Chief Judge, DUFFY and SCHNACKENBERG, Circuit Judges.

HASTINGS, Ch. J.: The National Labor Relations Board (Board) has petitioned under section 10(e) of the National Labor Relations Act, as amended*fn1 for enforcement of its order issued against respondent, Aurora City Lines, Inc. (Aurora), on March 3, 1961.*fn2 The Board concluded that Aurora's operations "affect commerce" and otherwise meet the Board's standards for assertion of its jurisdiction. As to the unfair labor practice, the Board found that Aurora had violated sections 8(a)(1) and (3)*fn3 of the Act by discriminatorily suspending employee Tester for engaging in the protected concerted activity of circulating a petition for, and otherwise seeking to set up, a special union meeting.

Aurora is an Illinois corporation engaged in the operation of a local passenger transit system by bus and is a wholly owned subsidiary of National City Lines, Inc. During 1959, Aurora's gross volume of business amounted to approximately $400,000, derived almost exclusively from passenger fares. In addition, Aurora purchased locally materials valued at approximately $2,000, all of which originated outside the State of Illinois.

Aurora and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local 215 (Union) were parties to a collective bargaining agreement which was to expire December 31, 1959. Before the expiration date, Union notified Aurora that it desired to terminate the agreement and negotiate a new one. Two negotiating sessions were held during the month of December, but no new agreement was executed prior to the expiration date. The existing contract was continued on a day-to-day basis with the understanding that any benefits conferred by a new agreement would be retroactive to the date the previous contract was terminated.

Some employees felt that they were not being adequately informed by their Union concerning the negotiations for the new contract. On Sunday, January 3, 1960, employees Tester, Donahue, Smithy and Kretch discussed this matter and decided to circulate a petition among other bus driver employees, requesting Union officials to call a special meeting to advise employees of the current status of the negotiations. The four employees signed their names to a blank piece of paper, Tester's name appearing first.About 12 more bus drivers signed the paper that afternoon, after its purpose had been explained to them.

That evening, pursuant to previous arrangements, the drivers who had signed the petition met at Aurora's garage. After securing additional signatures to the petition, Tester telephoned Freddie Leonard, a member of the Union's negotiating committee, and asked that a union meeting be held. Leonard said that he had nothing more to do with the negotiations and suggested that Tester call Herb Wolfram, the president-elect of the Union. Tester called Wolfram and explained to him that "the fellows are a little in the dark as to what has been going on at the negotiations," and that 26 employees had signed a petition for a special union meeting. Tester requested that Wolfram arrange such a meeting, but Wolfram rejected this request. He stated that it was none of Tester's business, called him a "wise punk" and threatened "to have his job in the morning."

Following Wolfram's refusal to call a special meeting, there was some talk among the drivers at the garage that Wolfram's refusal might lead to a strike, but no decision to strike was reached or seriously considered. After Tester's failure with Wolfram, Smithy called Wolfram to ask him to "come down and talk to the guys." In the course of the conversation, and after a second refusal by Wolfram, Smithy stated:

"Well, now, what it is leading up to, they are just liable to pull the buses off with all these guys down here."

Shortly after these telephone conversations with Wolfram, R. H. Feahr, superintendent of Aurora's bus operations, arrived at Aurora's garage, asked all drivers except Tester to leave and asked Tester to come into his office.

In the presence of Aymar, Aurora's maintenance superintendent, Feahr requested Tester to sign a resignation form. Tester refused, saying that he had done nothing wrong. Feahr said he had been informed that Tester was "going to pull the buses off the street." Tester explained that he was only trying to get a union meeting. Feahr ignored Tester's explanation and said he would give him a good recommendation if he resigned quietly. Otherwise, he declared, Tester would be suspended, which would do him no good because the Union would not back him and he might be prosecuted for violation of "Taft-Hartley" or for breach of contract. Tester repeated that he was not fomenting a strike, and that the contract between Aurora and Union had expired. Aymar, at this point, remarked that they would enjoy the next few weeks "watching people spend their money uselessly in trying to keep themselves out of jail," that Aurora had more money than Tester, and that by the time he was through Tester would be sorry he had not resigned. Feahr added that Tester would never be able to support his wife and family if he did not resign. Tester then requested that he be permitted to think the matter over until the following morning.

The next morning, Tester told Feahr he had talked the matter over with his wife and, as he had done nothing wrong, he had decided to accept a suspension. Tester was then suspended indefinitely.

Aurora contends that the Board improperly asserted jurisdiction over its operations, that there was no substantial evidence to support the Board's findings that Tester made no threat to pull the buses off the streets and that at the time Feahr suspended Tester, Feahr was well aware that no strike was imminent. It further contends that the record, taken as a whole, shows that Aurora suspended Tester because he was one of a group which, though seeking a lawful objective, namely, a special union meeting, engaged in an unprotected activity, the threatening or promoting of a wildcat strike to gain the objective.

In attacking the Board's jurisdiction, Aurora asserts that the doctrine de minimis should be applied to its purchase of $2,000 worth of materials, originating outside the State of Illinois. We do not agree. In National Labor Relations Bd. v. Suburban Lumber Co., 3 Cir., 121 F.2d 829 (1941), the de minimis doctrine was ...

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