# National Labor Relations Board v. Norfolk Southern Bus Corp.

> Court of Appeals for the Fourth Circuit · December 30, 1946 · 159 F.2d 516

URL: https://www.frixlaw.com/law-library/cases/6894648

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD v. NORFOLK SOUTHERN BUS CORPORATION
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 30, 1946
- **Citations:** 159 F.2d 516; 19 L.R.R.M. (BNA) 2170; 1946 U.S. App. LEXIS 2994
- **Precedential status:** Published
- **Opinion:** Dissent by Soper
- **Judges:** Parker, Soper
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6894648

## Opinion text

SOPER, Circuit Judge
(dissenting).
The Bus Company carries on its operation in two divisions known as the Virginia and North Carolina divisions. There is, however, a close association amongst the employees of the two divisions and a single management. Both divisions run into Virginia and both divisions run into North Carolina. The busses interchange between the two divisions. A large percentage of the bus operators in both divisions have the same headquarters, report at the same place and are constantly thrown together. Some of the operators live in Virginia and some in North Carolina, but about 40 per cent of the North Carolina operators and the majority of all of them in both divisions live in Norfolk. The qualifications are the same for both divisions. Joint meetings of the employees of both divisions are held to discuss safety methods and business rules and regulations, and the drivers mingle at the Norfolk terminal and at the garage. The discipline, employment and discharge of the operators of both divisions are handled through the office of the general manager. The books and records of the operations are not kept separately for the two divisions but for the business as a whole.
A majority of the employees in the Virginia division were in favor of the union, but the employees of the North Carolina division were opposed to union organization. Since it was therefore impossible to unionize the employees, if all of them in both divisions were included in a single bargaining unit, the Labor Board decided that the employees of the Virginia division, considered separately, constituted an appropriate unit for the purposes of collective bargaining. This is made quite clear by the Board’s own words of explanation in giving its reasons for establishing the Virginia division as a separate bargaining unit. They were:
(1) “Plach division, for example, has its own seniority list, so that if a driver transfers from one division to the other, he does not carry his seniority with him but goes to the bottom of the seniority list in his new division.”
(2) “Each driver or conductor is definitely assigned to one division or the other and among regular drivers there is very infrequent interchange on a permanent basis; in case of emergency, a regular driver in one division may, on a purely voluntary basis, accept a run in the other division.”
(3) “Further, each division is in charge of a separate bus master.”
The Board, however, admitted that “there are other considerations which point up the equal propriety of a company wide unit.” The Board could well have said that the other considerations were far more weighty, as will appear when listed in the Board’s own words as follows:
*522 (1) “Wages and working conditions are the same for employees throughout the system.”
(2) “All busses are serviced at the same garage.”
(3) “The dispatcher at Norfolk acts in his capacity for the two divisions.”
(4) “General administration and employment policies are handled centrally.”
Why then did the Board reject the normal and reasonable arrangement and set up the Virginia division as a separate unit? The answer is given by the Board in its own words as follows: “However, the Union has limited its organization activities to employees of the Virginia division since those in the North Carolina division have indicated their hostility to the Union and there is no present possibility of organizing the latter division. In view of the foregoing, and in the absence of any bargaining history, we are of the opinion that at this time a unit confined to employees of the Virginia division is appropriate.”
Section 9(b) of the statute gives the Board the power to determine in each case the unit appropriate for purposes of collective bargaining to effectuate the policies of the Act; but the Act does not permit the Board to limit a bargaining unit to a certain size simply to enable the union to secure an organization in a plant which would otherwise be impossible. It is true that the preamble of the statute declares that it is the policy of the United States to encourage the practice and procedure of collective bargaining and to protect the exercise by the workers of the full freedom of self organization and the designation of representatives of their own choosing for the purpose of negotiating the terms and condi tions of their employment. But Section 9 (a) provides that the bargaining representatives shall be designated by the majority of the employees in an appropriate unit and that they shall be the exclusive representatives of the employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment.
We need nothing further than these provisions to show that the unit must be one which is appropriate for bargaining in respect to wages and other conditions of employment. In this case, as the Board has found, the wages and working conditions in both divisions are the same and the problems of administration are handled by the company as a whole; and the real reason for setting up the Virginia division as a separate unit was not that it is an appropriate unit for bargaining purposes, but solely to establish the union in the business against the will of the majority of the employees. What is the inevitable result ? It is that the representatives of a minority will have the authority to bargain for the whole body of employees. This is true because it will be obviously impossible for the company to make any distinction between the bus operators in the two divisions since they have •the same qualifications, are closely associated in the performance of their duties, and are subjected to the same conditions of labor.
No decision of the Supreme Court has ratified the establishment of a bargaining unit composed of a minority of employees where all employees are subj ect to the same qualification and working conditions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6894648. Public record. Not legal advice.