Full opinion text
GARRECHT, Circuit Judge. This case arises upon petition by the National Labor Relations Board for the enforcement of an order issued by the Board pursuant to Section 10 of the National Labor Relations Act. 49 Stat. 449, 453, 29 U.S.C.A. §§ 151 et seq., 160. On April 3, 1936, a labor organization known as Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Division 1055 [hereinafter called the Union], filed a charge against the Union Pacific Stages, Inc. [hereinafter called respondent]. A fomal complaint and notice of hearing was issued by the Board against the respondent on June 12, 1936. The complaint in brief alleges that respondent, a corporation organized under the laws of Oregon, was engaged in the operation of motor busses for the transportation of passengers and express for hire between points within the States of Idaho, Utah, Washington, Oregon, and various other states of the United States; that respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8, subdivisions (1) and (3) and Section 2, subdivisions (6) and (7) of the National Labor Relations Act, 29 U.S.C.A. §§ 152 (6, 7), 158 (1, 3) by discharging and refusing to reinstate Hebe Dobbs, Carroll B. Kiesel, F. H. Woodford, Harold G. Allen and John H. Gish, employees, because of their membership and activity in the Union; by the respondent’s interfering with the administration of the Union in preventing its officers from procuring the free, voluntary, and unbiased expression of the Union from its members in regard to labor policies, and by various other acts interfering with union activities of its employees thereby having engaged in unfair labor practices “affecting commerce” as defined in the Act. Section 2(7), 29 U.S.C.A. § 152(7). The respondent filed an answer to the complaint, alleging that the Act, as attempted to be applied in the complaint, is unconstitutional and void. The answer substantially admitted the allegations of the complaint relating to the nature of its business and the duties of the employees involved; also admitted that the respondent had discharged and refused reinstatement to the employees named in the complaint, but alleged that their employment was terminated for good cause and not for the reason asserted in the complaint. The answer further denied that respondent had made statements tending to discourage membership in the Union, and averred that any statements so made by any of its agents or employees were expressions of individual, unauthorized opinions. Respondent also denied that it had interfered with the administration of the Union, and moved that the complaint be dismissed. Hearings were held before the Trial Examiner duly designated by the Board. Upon motion of counsel for the Board an allegation in regard to the discharge of John H. Gish, one of the employees, was stricken from the complaint. At the hearing, an allegation that respondent had committed acts in violation of Section 8, subdivision (2) of the Act, 29 U.S.C.A. § 158(2), was added by amendment to the Board’s complaint, and designated as paragraph 9A. On September 11, 1936, the Trial Examiner filed an intermediate report finding in substance that the respondent and the employees involved herein are engaged in interstate commerce; that as to Harold G. Allen, one of the employees named in the amended complaint, the allegations of the complaint are not sustained, and insofar as the complaint charged respondent with violation of Section 8, subdivision (2) of the Act, the evidence does not sustain the charge; that in respect to other allegations, respondent had violated the Act in the manner alleged. He recommended that the respondent cease and desist from interfering with the Union activities of its employees and that it offer to immediately reinstate Hebe Dobbs, C. B. Kiesel and F. H. Woodford, and make them whole for losses suffered by reason of their discharge. Exceptions to the intermediate report were taken both by the Union and the respondent corporation. Hearing was held before the Board which thereafter issued its decision containing its findings of fact and order, in the main confirming the findings and conclusions of the Trial Examiner and ordering his recommendation carried out, except that the Board dismissed the complaint insofar as it related to F. H. Woodford. Petition for the enforcement of its order has now been made by the National Labor Relations Board. With respect to the nature of respondent’s business and the duties of these employees it was agreed and the Board found that the respondent is engaged in traffic, commerce and transportation among the several States and that the drivers and operators are directly engaged therein. It further found that Hebe Dobbs and Carroll B. Kiesel had been discharged because of their activity in the Union, and that respondent has engaged and is engaging in unfair labor practices. The evidence upon which these findings were based will be discussed hereafter. In insisting that the action of the Board must be sustained that portion of the Act which provides that “the findings of the Board as to the facts, if supported by evidence, shall be conclusive”, section 10(e), 29 U.S.C.A. § 160(e), is emphasized. We must and do comply with this requirement even where in doing so we sometimes enforce findings of the Board which we would not do if permitted to exercise our independent judgment. The serious question here involved relates to the discharge of certain of respondent’s drivers. Originally five were named in the complaint as having been improperly discharged, but as to three of these, the complaint was dismissed prior to the submission of this petition. The important issue now is, whether drivers Dobbs and Kiesel were discharged for union activities, or because ot their violation of well-known company regulations. In arriving at the' conclusion that these drivers were discharged contrary to the Act the Board relies to a large extent upon what it terms background. In developing this perspective the ordinary judicial approach to the consideration of evidence is abandoned and a novel method invoked by which statements made by dissatisfied employees upon their examination in chief are quoted to support some of the findings of the Board, although, in' specific instances, this evidence was modified or eliminated by admissions made on cross-examination. On the other hand, testimony of Company officials which disputed the charges, even where apparently corroborated, was invariably disregarded wherever there was a conflict in the evidence. True, there may have been something in the demeanor or appearance of these witnesses for respondent which may have influenced the report of the Examiner and accounted for this remarkable discrimination, but no apparent reason is manifest from the record itself. That this “background” upon which the Board so strongly relies to support its order to reinstate the discharged employees presents a somewhat distorted picture of the activities of respondent, a limited scrutiny of the findings will serve to reveal. Prior to, the organization of any union the respondent had discharged a large number of employees. It explained that its policy .in this regard was governed by the need of' increasing the quality of its service. Testimony shows that in 1934, at a meeting of local superintendents with General Superintendent Manning, one of the principal subjects he called to their attention was the number of accidents that had been occurring in the preceding month. Just at that time a telegram was received advising that a locally hired driver, in attempting to pass a car on the brow of a hill, had met another car coming in the opposite direction, injuring the occupants. It was pointed out that this was an entirely avoidable accident and violated all Company rules and state laws and Manning said that it would be impossible,to continue in business and still pay claims on these accidents and that it was necessary that the local superintendents do something with these men or they could not continue with the Company. Furthermore, it is in evidence and uncontradicted that respondent has been very exacting in having competent drivers handle its stages and passengers and takes pride in having maintained a very successful operating record. Following this conference there were a number of drivers discharged. Some of these began actively to take part in the organization of a union. In September, T934, Mr. Van Avery, an employee of respondent who later became president of the Union, advised the management that the employees were considering organizing a union. R. J. Walsh the respondent’s president, stated that “if the boys wanted a union they could have it.” He and General Superintendent Manning stayed out of the territory while organization activities were going on. The organization of the Union proceeded openly and a charter was issued to it November 23, 1934, and it was fully perfected about December 21, 1934, upon which date the request for a conference was made by the Union. Before consenting to hold a conference, Walsh insisted that proof of the Union’s right to represent the employees be submitted. Because there was confusion as to whether the Railway Labor Act or the National Industrial- Recovery Act governed the attempts of the respective parties to bargain, there was some uncertainty as to which Board had jurisdiction to supervise the selection of a bargaining agency. Mr. Walsh signified his willingness to proceed under either Board. It was finally agreed to hold the election under the auspices of the old National Labor Board. The election was held during the week of January 28 to February 4, 1935, to determine the matter. The vote showed the selection of the Union as bargaining agency, which fact was certified by the Board on February 7, 1935. On the next day the Union suggested February 18, 1935, as the date for the conference, to which respondent assented. It was held on that date and continued from day to day until February 23, 1935, when the agreement was reached, which was to remain in effect for one year. In support of its findings the Board argues that the insistence of respondent’s president, Walsh, that the Union prove its right to represent the employees and that three days were taken up in arriving at an agreement which was to govern the activities and relations of the respective parties for a year occasioned unreasonable delay. It is indicated that these incidents constitute unfair labor practices. It is conceded that Walsh said, “If the boys wanted a union they could have it,” but it is adversely commented upon that when it came to bargaining, he wanted to know that those who claimed to represent the Union had authority. That this precaution was wise, the difficulties that have arisen over this very question in many labor disputes fully attest. Furthermore, the Supreme Court has held not only that the company is required to treat with the representative chosen by the employees but is also required to refrain from entering into collective labor agreements with anyone other than the true representative as ascertained in accordance with the provisions of the law. Included in the Railway Labor Act there is a provision relative to collective bargaining similar in scope and purpose to the one in the National Labor Relations Act. In construing this provision the Supreme Court in Virginian R. Co. v. System Federation, 300 U.S. 515, said at page 548, 57 S.Ct. 592, at page 600, 81 L. Ed. 789, decided March 29, 1937: “The obligation imposed on the employer by section 2, Ninth (45 U.S.C.A. § 152, subd. 9), to treat with the true representative of the employees as designated by the Mediation Board, when read in the light of the declared purposes of the act, and of the provisions of section 2, Third and Fourth (45 U.S.C.A. § 152, subds. 3, 4), giving to the employees the right to organize and bargain collectively through the representative of their own selection, is exclusive. It imposes the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other.” In the case of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, at page 44, 57 S.Ct. 615, at page 627, 81 L.Ed. 893, 108 A.L.R. 1352, this holding was noticed and applied to the Act here under consideration as follows: “The provision of section 9(a) [29 U.S.C.A. § 159(a)] that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit, imposes upon the respondent only the dut? of conferring and negotiating with the authorized representatives of its employees for the purpose of settling a labor dispute. This provision has its analogue in section 2, Ninth, of the Railway Labor Act, as amended (45 U.S.C.A. § 152, subd. 9), which was under consideration in Virginian Railway Co. v. System Federation, No. 40, supra. The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to-refrain from entering into collective labor agreements with anyone other than their true representative as ascertained in accordance with the provisions of the act. We said that the obligation to treat with the true representative was exclusive and hence imposed the negative duty to treat with no other.” (Italics supplied.) By reason of this delay some bitterness was injected into the situation before negotiations had begun. After a little acrimonious correspondence the day of meeting for conference was agreed upon and the representatives of the parties came together. Many of those conducting the negotiations had little or no experience in collective bargaining. The representatives of the Union had brought with them to the meeting a prepared agreement which they wanted the officials of respondent to sign forthwith; this they declined to do. After discussion and bargaining and little progress, lawyers for the respective parties were brought in. After three or four days an agreement was arrived at, reduced to writing and executed. Considering the circumstances and the importance of the matter it can hardly be said that there was undue delay. In any event, the respondent was not required to proceed with haste, indeed was not required to enter into any agreement if it did not choose to do so. To quote again from National Labor Relations Board v. Jones & Laughlin Steel Corp., supra, at page 45, 57 S.Ct. at page 628, “The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It dos not prevent the employer ‘from refusing to make a collective contract and hiring individuals on whatever terms’ the employer ‘may by unilateral action determine.’ ” There arc many instances of such artificial background which reflect respondent’s activities in a false light. Referring to those who took part in formulating the agreement as representatives of the Union the Board in its finding makes this statement: “The negotiations were conducted on behalf of the Union by William Cooper, 13th International Vice President, Hebe Dobbs, representing the employees of the Boise division, W. J. Ewing, representing the employees of the Salt Lake City division, Charles Goodman, representing the employees of the “Spokane division, and Van Avery.” And in a foot note emphasizes: “Dobbs, Ewing and Goodman have since been discharged by the respondent. Cooper was not an- employee. Van Avery is still in the respondent’s employ.” From the above, the inference is plain that the respondent had punished its employees who had taken part in this conference by discharging all of them except Van Avery. The rulets of respondent Company forbid stage drivers to drink on or off duty As to Ewing, the record indicates that He had violated the rule against drinking, then came into the office of the respondent at Salt Lake City and voluntarily quit, stating he had had a good time, that it was worth it, and “we will call it a day.” The President of the Union admitted that it did not ask the management for a hearing in his case. . As to representative Goodman, Van Avery testified on direct examination that he was discharged, which seems to have been accepted without question by the Board. On cross-examination, however, Van Avery admitted that Goodman had to leave the service because of the loss of an eye in an accident at his home, which was confirmed by the testimony of respondent’s general superintendent. The facts, correctly presented, change the background of the picture. A total of 18 of respondent’s employees have acted as officers or committeemen of the Union during its existence. Of that number one left the service on account of physical ■ disability, three quit voluntarily, and up to the time of hearing twelve were still in the Company’s employment, and only Dobbs and Kiesel, members of the Union, were discharged and during the same time two non-union drivers were discharged although the number of Union employees was several times larger than the total number of non-union employees. Another statement in the findings of the Board is as follows: “About the time of the formation of the Union, the respondent ceased hiring drivers in the localities where they were needed, and began instead to recruit all of its new drivers in Omaha. The respondent has explained this change of policy on the ground that Omaha provided convenient and superior training facilities. The Union, however, contends that the respondent’s aim was solely that of undermining the organization of its employees. Van Avery testified that nine drivers and three shop men were sent to the Portland division from Omaha to take the places of discharged employees, whereas no local men had been employed. The consequence of this was a lowering of the number of Union members in Portland from 24 (which included all the drivers in the division) to 15. Van Avery testified further that new drivers were invariably hostile to the Union.” Here again there seems to be a studied evasion of a definite finding but the idea intended to be conveyed is that the practice was purposely initiated to undermine the Union. The testimony for the Union is summarized most favorably while" respondent’s explanation is dismissed with a sentence. In this regard the record shows that the respondent at various times commencing in 1931 acquired different bus lines which eventually were consolidated under one management with headquarters at Omaha. Because the hiring of drivers at different points had resulted in the company acquiring many inferior drivers who had been weeded out by other companies the policy was adopted of hiring all drivers through the Omaha office, which permitted a better check on drivers, and where the Company had a school for breaking in new drivers. This policy was .inaugurated in 1931, long before the Union was organized. The Company officials did not transfer those that came to the West on their own initiative, but it was done at the request of the employees themselves. Some asked to be transferred because the superintendent under whom they had been working was sent to the West and they desired to continue to work under him; some preferred the Northwest climate; some came because of relatives; some because the extra boards were not so crowded in the West and they would have better opportunities. It appears from the evidence that a similar situation existed with reference to drivers wishing to be transferred to Los Angeles, a point where, it is interesting to note, no union has been organized. Further, a number of those who transferred from Omaha to the West joined the Union after they came, which hardly sustains the finding that the drivers were sent out to disrupt the Union. As to the' statement included in the above quoted paragraph, that besides these drivers “three shop men were sent to the Portland division from Omaha to take the place of discharged employees,” this finding also is intended to create the same impression, that Union men were discharged and non-union men sent in to take their places in order to break up the organization. Concerning these shop men, the uncontradicted testimony of Manning shows that John Nelson was foreman for respondent at Los Angeles, and had been transferred from there to Omaha as foreman. Later, changes of equipment and type of coaches were made in the Northwest which were similar to those operated between Los Angeles and Salt Lake, and Nelson, who had been in charge of this same type of equipment and had operated it successfully for the respondent, was sent to Portland to take care of it. He was later made foreman but the man who had been foreman was not discharged but continued as mechanic without any reduction in wages. Another of these shop men was Ralph Norgard, who had been a machinist at Omaha and had taken care of the regular machine work on the motors, all reline boring, work on the connecting rods, and that sort of repairs. Through his fine work respondent was able to rehabilitate cars, and salvage many of the parts. A new position was created for him at Portland where he was sent to take charge of this class of work. He did not replace anyone. The third man was Paul Kear. He came to Manning personally in Omaha. He wanted work in Oregon where his relatives lived. He had lived in Portland before. About that time respondent put on some additional men at Portland and Kear was one of these. He did not replace anyone when he came out and he did not come to fill a vacancy. Another finding of the Board which had an important influence upon their action was stated as follows: “This attempt on the part of the respondent to undermine the strength of the Union becomes increasingly manifest because of the conduct of Walsh and Manning during this period. In November, 1935, Walsh made a tour of the respondent’s divisions, and, in a series of meetings, informed the employees that he had taken steps toward securing an increase in pay, but that this was a matter with which the Union had nothing to do. He also stated that the employees had no need of a union in order to safeguard their rights, and that they were not obliged to ‘pay tribute.’ ” To support these findings in relation to the question of wages the Board relies upon the testimony of Van Avery as taken from his direct examination to which we are cited in petitioner’s brief. His testimony in chief was that Mr. Kuse was sent to Portland as respondent’s superintendent about September 1, 1934; that just prior to that time the drivers had begun to talk about an increase in wages and the organization of a union. When Kuse arrived he called the men in to get their' slant on the situation. Van Avery was one of those who talked with Kuse concerning the increase of wages. The following is his testimony regarding that conversation: “In about two weeks’ time, I was called into his office and he wanted to know what the conditions were, what the set-up was, and I told him that as near as I could, and he said, ‘It just can’t be paid’. And he brought out a little looseleaf ledger showing the cost of gasoline, the cost of tires, and the miles run on the different divisions and the rates of pay, and he said, ‘You go back and tell these men that it can’t be done’. “I said, ‘Mr. Kuse, I know all that, but here is the Pacific Greyhound line, which is a subsidiary of the Southern Pacific. Their wages are far greater than ours; the S. P. & S. Railroad, their boys on their bus line, they are getting three cents a mile; the North Coast Transportation Company, their drivers have got a 30-cent increase’. * * * “30 cents per day. And I said, ‘Here are the drivers on the Union Pacific Stages without anything’. “I said, ‘If you can explain that to the men, why these other companies can pay and the U. P. can’t, you can do better than I can’. “And he said to me, ‘Would you fellows be glad if you got 30 cents a day?’. “I said, ‘No. We still have taken a cut of $1.90 a day, which we took some years ago’. And then I said, ‘To be fair, to bring us into somewhat the right proportion, to what the other companies are paying, if you will give us $1 now and then we can arbitrate the 90 cents difference later on, or' whatever is agreed upon’. “He said, ‘It can’t be done. The stages will be locked up first’.” This took place before the Union had been organized and before any agreement between the Union and the Company had been entered into. The respondent sought to show that its scale of wages was higher than any of the three competing companies named by Van Avery in his testimony but the testimony was ruled out on the objection of the Union as being immaterial. On cross-examination, Van Avery was forced to admit that during 1933 and 1934, or prior to the organization of the Union, respondent had three times increased the pay of its drivers. On March 16, 1933, when the banks were closed and business was very bad the compensation of the drivers had been reduced and as a result of this pay cut Van Avery was getting $5.60 per day. The way the increases affected him was as follows: .On July 1, 1933, he was raised to $6.10; on November 1, 1933, to $6.60; on October 1, 1934, to $7.50. This was the pay per diem. at the time that the Union was formed and when the first agreement was entered into between the Company and the Union on February 23, 1935, which was to be in effect for the period of one year. In that agreement it was stipulated that “present basic hours of labor and scale of wages shall be continued and maintained during the life of this agreement.” Also, as a basis for the finding, the Board prints in the appendix to-its brief the following statement made by Mr. Manning, superintendent for respondent, called as a witness for petitioner: “Q. Do you remember what he [Mr. Walsh] said about the union’s responsibility for that wage scale and what he wanted them to understand about it? A. I don’t remember his exact words, but I remember that he recited to the boys that the increase was asked for in August when we had received our first six months’ figures for the year, and it looked at that time that the company was going to make a good showing for the year, so that in August he sent an increase in for the men, which request went to New York City. It came back for a few changes and revision and it was again sent to New York City, and he received it just before he went out on the trip. * * * “He told the boys that it was not a question of grabbing $150,000 out of the company, that it was a long hard job to get this money and that he understood that there was a rumor out here, as I remember his words, that the union had insisted that they get this raise, or that the union had got the raise, and he wanted to explain to the men that they would get every dime that the company could afford to pay them, and that that was predicated upon the business done by the company, and as long as he was president of the company he would do everything that he could to give them every dollar that they could afford to give them, consistent with good business, and he wanted to let them know that it was a matter of getting money out of the Union Pacific Railroad, and it was not a matter of getting it within 24 hours. That was the gist of it, as I remember it. * * * “Trial Examiner Hazel. What was the occasion of any conversation at that time? “The Witness. We were giving the boys an increase in pay, and had a banquet at various places along the line. Our seasons end in November, and at that time we can tell what our business for the year has been. * * * “Q. If I understand you correctly, it was Mr. Walsh’s position that as long as the company made money to pay the wages, they would be given to the men, and that it was a matter that the union had nothing to do with. That is what I understood you to say. It was a matter of revenue rather than bargaining? A. He didn’t say it exactly that way, but that is the thought. “Q. And he also said at that time, didn’t he, that so far as the treatment to be given the men was concerned, they would be treated just the same regardless of this union, that they didn’t need a union to safeguard any of their rights? He told them that, didn’t he? * * * A. Yes. ¥ ^ “Q. Did he say that they didn’t need to pay tribute in to the union, if they didn’t want to? A. I don’t know whether he said that, or said that they didn’t need to pay tribute, at that particular time, but I have heard him say that they didn’t need to pay tribute, at meetings with the men. “Q. At other times? A. Yes.” The only other evidence cited by petitioner to support the finding is that of one of the drivers who testified that Walsh said, “The Union had no bearing on the men getting this raise, that he was doing it voluntarily,” and “that the men didn’t have to belong to any union; if they didn’t want to belong to any union, they would still have their jobs.” No effort was made to show that Walsh’s statements were in fact untrue. The mere making of them is held to be a violation of the Labor Act. The evidence shows that the Company was conducting its business on the ■open shop basis; in doing so the respondent was within its legal rights. If the talk of Walsh its president, amounted to no more than a declaration of that policy it did not violate the Act. As a part of the same paragraph which refers to Walsh’s activities, which we have just commented upon, the Hoard continues : “Manning had recourse to the same strategy. In July, 1935, the respondent having been advised through the Union of a grievance on the part of one of its Spokane employees, George Auld, — the matter related to back pay and was clearly contemplated in the provisions of the agreement — Manning nevertheless made an adjustment directly with Auld, stating that ‘he didn’t want anyone that was not satisfied, that the union could not get him anything that the company could not give him.’ In view of the agreement which existed between the respondent and the Union, it is difficult to deduce anything from these activities on the part of the respondent’s officials other than that they were attempting to circumvent the provisions of the agreement by arousing in the employees the feeling that it was superfluous to negotiate with the management through the Union. It is clear that such conduct on the part of the respondent constitutes interference with the rights of its employees guaranteed by Section 7 of the Act [29 U.S.C.A. § 157].” Concerning this matter the testimony of George Auld of the Spokane division shows that in July, 1935, he had a grievance of some kind relating: to “some back pay or some claimed pay,” that he had not received; that he was unable to adjust the matter with the superintendent at Spokane. He thereupon transmitted his grievance in writing either to the local committeeman, or Van Avery. He was then asked: “Now, what was the next thing that happened in regard to that particular grievance? A. Well, Mr. Manning came to Spokane and he asked me what it was, and we settled it there. “Q. Between yourselves? A. Yes, sir. “Q. Did he say anything in that conversation about not needing the union in settling that? A. No. “Q. What did he say? A. He said he didn’t want anyone that was not satisfied, that the union could not get him anything that the company could not give him. “Q. That matter was closed satisfactorily? A. Yes.” Concerning this settlement with George Auld, General Superintendent Manning testified: “A. Well, that was brought up at a meeting. I could not tell you what meeting it was. It was one of the meetings that we had here in Portland with the committeemen, and all of them were discussing the matters before us generally; and that was brought up. We were changing our schedules up there, and that left this boy driving two long trips, where, heretofore, he had driven a short trip and one long trip. It was understood here, as I remember it, by Mr. Van Avery that I would call this boy when I went over to Spokane and work it out satisfactorily with him, and he said that that is all that is necessary. Mr. Van Avery said, ‘If he is satisfied, I am satisfied.’ So I went to Spokane and talked to him, and he explained the situation to me, and he told me that on being placed on this long run, it cost him his dinner, because he missed his dinner at home, and he was out that additional expense; and I asked him how much he thought it was worth, and he said ‘50 cents’ and I said, ‘We will pay you that 50 cents extra a day,’ and he said that that was all right. “Q. At the time you made the arrangements, did you know that there would be any criticism of you having taken that matter up with him? A. Absolutely not. I didn’t pay any attention to it. “Q. When was the first time that you ever heard of any criticism of your having done that? A. Right here. “Q. When it was brought out in the hearing? A. Yes. “Q. Mr. Auld was satisfied, was he? A. Yes, sir.” We think the Board was in error when it held that the declarations of Walsh in announcing that the company had voluntarily raised the pay of its driver employees, and Manning’s adjustment of the Auld matter constituted “interference with the rights of employees.” When this matter of Auld was gone into at the hearing the following occurred: “Trial Examiner Hazel: Are you going into the merits of that controversy? “Mr. Tanner: No, I am just going to show that they contravened the agreement that they made with the union and have not dealt with the men by collective bargaining, but have gone out and dealt with them individually. “Mr. Shields: There is no charge in the complaint— “Mr. Tanner: We have charged that you have violated their rights. “Mr. Shields: There is no charge of violating any agreement. “Mr. Tanner: They had an agreement to do collective bargaining. The statute gave them that right and the testimony is that he went out and made the arrangement with the men individually.” The above quoted finding indicates that the Board followed the position asserted by the Attorney for the Union to the effect that an employer under the circumstances was deprived of any right to make any settlement of a grievance directly with, an ' employee even as in this case where the representatives of the Union acquiesced in the suggestion that it be accomplished in that way. This was not a correct interpretation either of the agreement or the law. Section 9(a) of the Act, 29 U.S.C.A. § 159(a), contains the proviso that “any individual employee or a group of employees shall have the right at any time to present grievances to their employer.” Thus the Act does not inhibit adjustment of individual grievances directly between employee and employer and such procedure is entirely consistent- with collective bargaining in matters affecting employees as a class. This view finds support in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. Here, again referring to the case of Virginian R. Co. v. System Federation, supra, the Supreme Court at pages 44 and 45, 57 S.Ct. at page 628, said: “We also pointed out that, as conceded by the government, the injunction against the company’s entering into any contract concerning rules, rates of pay and working conditions except with a chosen representative was ‘designed only to prevent collective bargaining with anyone purporting to represent employees’ other than the representative they had selected. It was taken ‘to prohibit the negotiation of labor contracts, generally applicable to employees’ in the described unit with any other representative than the one so chosen, ‘but not as precluding such individual contracts’ as the company might ‘elect to make directly with individual employees.’ We think this construction also applies to section 9(a) of the National Labor Relations Act.” The first agreement expired ón February 23, 1936, and a second conference took place between the representatives of the Union and respondent’s officials on that date. There were several matters up for discussion but seniority was the outstanding feature. The officials of respondent had received from the drivers of the Spokane Division a written communication stating that they did not want the agreement changed to provide for open seniority wliich was what the representatives of the Union were insisting on. The 1935 agreement had contained the provision that “Seniority rights of drivers may be exercised only in the case of vacancies, new positions and reductions of force.” The Union representatives proposed that this rule be changed so as to permit “bumping,” which would' provide that any driver on any run could be “bumped” out of his run by any older driver in the division who might prefer that run. Upon being shown this communication from the Spokane drivers, and after some further discussion, the Union representatives stated that they would go out and canvass the situation and ascertain the wishes of the drivers. Mr. Walsh said, “O. K. if you are going to put it up to the men that is all right.” Upon the hearing a discussion arose between counsel representing the Union and respondent’s attorney as to certain legal questions involved in the fixing of seniority rights. It was there and is here contended on behalf of respondent that negotiations between the Union and the employer ordinarily are with respect to general working conditions, hours of labor and wages, and such matters where the interests of all the employees are the same and where any advantage secured by the Union for one member inures to the benefit of all; but that this is not true with respect to the question of seniority where the interests of the older and the younger employees are directly in conflict. The existence of this legal phase of the controversy was admitted by Union counsel at the hearing. Moreover, as the evidence discloses, matters of seniority primarily concern the relation of the employees, not to the company, but to each other. Rights taken from those new in the service go to benefit the older employees in the company. Thus any change of seniority status established by the contract would affect the personal rights of the individual employee rather than those of the group. Respondent’s officials were aware of the grave importance of this question which had been the subject of litigation in a case to which one of respondent’s subsidiary corporations was a party. Burton v. Oregon-Washington R. & Nav. Co., 148 Or. 648, 38 P.2d 72. It had been held that general authority of Union spokesmen did not include the power to waive the individual seniority rights of employees to the personal advantage of those who are the spokesmen, who are all older in the service. Piercy v. Louisville & N.R. Co., 198 Ky. 477, 248 S.W. 1042, 33 A.L.R. 322, 327. Since this hearing there have been other decisions. Another aspect of this seniority question developed at the hearing seems to have been overlooked by the Board. In cross-examining Van Avery, the President of the Union, counsel for respondent was seeking to bring out that there was a difference of opinion among the men as to what the rules of seniority should be. Also, that there was a conflict of interests between the older and younger men in the service. The Trial Examiner thought that this was immaterial. Counsel for respondent replied that ordinarily he would not think it material, but said he, “I am trying to clarify the issue by this witness who has given testimony which would cause an inference that, because the management insisted on having it clarified, that they were opposing collective bargaining and not cooperating with the Union. If counsel will assure us they were making no adverse inference against the Company because we wanted this matter clarified, — ” Here the attorney for the Union interrupted, saying, “Counsel has misconceived the purpose of that testimony. It was not to leave that inference, but the purpose of that testimony was to show that the management had violated the rights guaranteed by law to the employees, guaranteed under the Act, which provides that they must bargain with the men collectively; and we showed by that testimony that the management had bargained individually and had contravened the Union thereby, * * *[Italics supplied.] So it appears that this testimony was not intended to convey any of these adverse inferences against the Company which the Board now draws. This testimony was introduced solely to present the purely legal question as to whether it showed that the Company by its action had bargained individually with the drivers thereby contravening the statute. This was definitely stated by counsel. After the issue had thus been made clear the Trial Examiner remarked, “Of course, this complaint does not cover that”, to which the attorney for the Union replied, “Section 9A covers it.” Now it is a fact, as appears from the record, that in making up its findings and conclusions the Board held that the allegation contained in the amended complaint, which was this paragraph 9A, was not sustained and it was dismissed; but curiously enough this evidence introduced for a definitely different purpose and addressed only to the amendment is now made to do service for the very inferences which respondent’s counsel sought 'to obviate by cross-examination but from which purpose he was dissuaded by assurances that no such inferences were intended. Possibly we would be warranted in disregarding this particular finding by deciding that the use of this evidence for purposes disclaimed when cross-examination was diverted was not justified, but we will proceed to examine the statement of the Board in detail and show that in any event the inferences are not supported by the evidence. We continue the narrative in the language of the Board: “The representatives of the Union thereupon requested an adjournment of the meeting in order to investigate the attitude of the Spokane employees. Walsh retorted: ‘If you are going to go out and contact the men, we are certainly going to have Mr. Manning go too.’ Manning accordingly arrived at Spokane and interviewed about IS drivers. The Union representative of the Spokane employees, Lester Grimm, reached Spokane after Manning’s arrival, and found his fellow employees uncommunicative and changed in attitude. In one instance, Grimm testified, he had spoken to a ■ new driver prior to the conference, and had found him friendly and sympathetic toward the Union. On his return, however, the driver refused to answer the Union’s questionnaire, or even to speak to Grimm.” Footnote by the Board: “The total number of drivers in the Spokane division was 24 or 25. “The question of seniority was finally settled in the Spokane territory by a ballot conducted jointly by the respondent and the Union. The Union won, by a vote of 12 to 11.” 'ifhe paragraph from which the above quotation is taken and the one which follows it in the findings of the Board are intended to convey the idea that respondent’s officers, Walsh and Manning, seized upon this seniority dispute, designedly, for the purpose of delaying .any agreement; and that Manning’s contact with the drivers was to obstruct collective bargaining. Our comment on some of these activities will be made hereafter in connection with our consideration of the discharges of certain of respondent’s drivers which occurred about that time. Here we will confine our attention to the statements concerning the activities.of the witness Lester Grimm. When at the meeting it was announced that Manning was to check the attitude of the Spokane drivers on this vexing seniority question there 'was no objection from the Union representatives. Further there is no evidence that he did anything to influence the action of the drivers notwithstanding that it is so intimated in the findings of the Board. Indeed, the evidence contradicts, the Board. The statement is, “The Union representative of the Spokane employees, Lester Grimm, reached Spokane after Manning’s arrival, and found his fellow employees uncommunicative and changed in attitude. In one instance, Grimm testified, he had spoken to a new driver prior to the conference, and had found him friendly and sympathetic toward the Union. On his return, however, the driver refused to answer the Union’s questionnaire, or even to speak to Grimm.” The evidence of different witnesses places the number of signers of the petition opposing any change in the agreement relating to seniority from 13 to 16. Grimm testified that in his contacts he said nothing to the drivers to influence their votes. The result of the ballot was 12 to 11 in support of Grimm’s seniority stand. There were 24 or 25 drivers eligible to vote and had all of those who signed the petition of remonstrance voted for the views therein expressed, the result must have been different. It is obvious then that Manning, if he accomplished anything in view of all the evidence, it must have been to bring about an opposite result from that which is attributed to him. Again it is stated that Grimm found his fellow employees uncommunicative and changed in attitude and this is so connected with Manning as to make it quite unmistakable that the Board places this responsibility on him. Nowhere in his testimony did Grimm say anything about any communication with or describe any changes in attitude as to any drivers except one, and for its broad assertion the Board refers to but one single instance where Grimm testified he had spoken to a new driver prior to the conference and had found him friendly and sympathetic toward the Union, but after the “bumping” issue had been raised the driver refused to answer the Union’s questionnaire on the subject, or even to speak to Grimm. To the impartial mind this is most revealing and well illustrates how the Board fell into error. The fact, as testified to by all the witnesses, is that this seniority controversy concerned the drivers particularly and personally and the respondent only incidentally. That the friction on the subject resulted from a clash of interests between the new drivers -who were opposed to “bumping” and the old drivers, who, by reason of the advantage their seniority gave them, were strong for “bumping.” The instance cited above by the Board is to a new driver who, presumably, was awake to his own interests. It is also conceded that this question of seniority had not been submitted to the drivers in advance of the conference and that the rank and file of the drivers did not know that a change in this regard was to be proposed for insertion in the new agreement. Thus, when Grimm had talked to this new driver prior to the meeting when, he seemed to be all for him, he did not know that Grimm was intending to propose a- change in the seniority rule. When it was discovered that a change unfavorable to the new drivers was being proposed they protested and it was after this that Grimm had his second contact with this new driver, found him changed, > and refusing to answer questionnaires. Applying to the situation the ordinary standards of conduct and common sense, the conclusion is inescapable that this new driver was provoked at Grimm and would not speak to him because he had assumed to bargain away the rights of the new driver rather than because of any check up on the part of Manning. Furthermore, there is no evidence in the record that Manning had ever talked to this driver. The finding rests on pure surmise. It is pertinent to note here that this testimony of Lester Grimm in relation to the matter concerning seniority also was offered in support of the amendment to the complaint, paragraph 9A, which, as before stated, was dismissed by the Board. For further support of its findings that respondent’s officials were interfering with, and discrediting the Union, it points to the testimony of Van Avery “that the Union members became apprehensive of displaying their Union buttons and it became increasingly difficult to induce employees to serve in an official capacity in the Union because of the fear of losing their jobs.” Van Avery did testify that working conditions had become more favorable since the Union has functioned in- the divisions, lie also testified that the men were open and above board about their affiliations with the Union and wore their buttons in plain sight. The attorney for the Union thereafter, by asking leading questions, got into the record the limitation that this was true only in the vicinity of Portland but that east of there the conditions were different. We keep in mind that the Spokane Division, where the controversy relative to seniority had been waged, is east of Portland. Mr. Manning testified that as a result of this difference of views ou seniority and after the agreement had been entered into which provided for “bumping” in the Spokane Division the attitude of the men there toward the Union changed; that one of the men at Lewiston, Idaho, in the Spokane Division, offered to give him 14 union buttons and cards that drivers had discarded; that this driver had said that the seniority was wrong and that he didn’t like it and the rest of the boys didn’t like it. This testimony was not controverted. It was also admitted by Van Avery that during the first year the Union membership “held up good,” in fact, was increasing. This was while the first agreement was in force and before the provision providing for “bumping” had been adopted. Further proof that this change in the new agreement concerning seniority rights whereby older drivers were given “bumping” privileges and not any opposition by respondent’s officials to the Union caused this decline in membership is supplied by the testimony in regard to one Zellers who, it was charged, had left the Union because of promises of promotion. Van Avery testified: “ * * * I had contacted this man Zellers,— “Q. All right, what was his attitude? A. When I heard what his attitude was, I asked him, or told him that if the management had offered him anything, that he should carry on until after he got the promotion, and that we would then give him a withdrawal card. He said, ‘The reason I am withdrawing out now, is' because the management is protecting me in my seniority rights, and the organization is trying to take away from me what the management gives me.’ ” The findings of the Board imply that the Company discharged Dobbs and Kiesel because of their Union activities and affiliations and to discourage membership therein. However, the evidence shows that after the organization of the Union, working conditions had become more favorable and discharges were fewer. There is no doubt that one of the purposes in organizing was to curtail discipline and discharges, and the record tends to show that the Union opposed any discharges or discipline of its driver members with equal vigor regardless of whether or not the employee was innocent or at fault. In reviewing this case we have generally followed the sequence adopted by the Board, particularly in considering the background of those events upon which the Board specifically relies to support its order requiring the reinstatement of the discharged drivers. As we have endeavored to point out, these findings are not supported but are contrary to the evidence. This of itself might be sufficient reason for this Court to decline to enforce the order in this particular. However, we will now consider the findings of the Board relating to the discharge of the drivers. The complaint alleges that in March, 1936, respondent discharged Hebe Dobbs, Carroll B. Kiesel and two others because they joined and assisted the Union. Respondent denies this allegation and insists that the dismissals were because of infractions of the rules and regulations of the Company. That Dobbs and Kiesen were both guilty of some violations is admitted, but it is asserted that these were trivial. However, the Board concedes that it would not have invaded the respondent’s right to discharge these drivers except upon the assumption that respondent had seized upon these incidents as “a convenient means of eliminating troublesome union leaders.” ■ This raises the critical question, did respondent act because of some valid reason which appeared to it sufficient ground for discharging these drivers, dr was the action capricious or merely a camouflage as determined by the Board? The Company could not discharge them as a penalty for union activities but it has .the undoubted right to do so for violations of its proper rules, regulations or policies. The Act does not compel respondent to employ anyone; it does' not require it to retain in its service one who fails faithfully to observe the rules and regulations promulgated by it to secure the safety, comfort, and courteous treatment of its patrons. It has the right to enforce policies of its own choosing with respect to operating its busses, by discharging an employee who fails to comply with the reasonable rules and regulations it may adopt. Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 57 S.Ct. 650, 655, 81 L. Ed. 953; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. In this last case at page 45, 57 S.Ct. at page 628 the Supreme Court said: “The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them.” If the discharges here in question came within that category the Board was without authority to enter an order requiring that-respondent reinstate the suspended drivers to their positions. The Board, in its findings, seems to attach some significance to the fact that these discharges occurred during the interim between the expiration of the first agreement and the execution of the second. It will be remembered that an adjournment of the conference when the second agreement was being formulated occurred at the request of the Union representatives to enable them to ascertain the wishes of the drivers in the Spokane division in relation to the question of seniority and “bumping.” It is also undisputed that the officials representing respondent agreed to consider the matter of these discharges on their merits without reference as to whether or not an agreement was in existence. In addition, they would have their rights under the law, of which they could not be deprived. So there is nothing of substance in this point, but the Board calls attention to the subject in a manner calculated to disparage respondent. When negotiations were resumed on March 12, 1936, after the referendum on seniority, the Union representatives were insisting on including in the agreement a statement providing for the reinstatement of the discharged drivers, particularly Dobbs. Manning, who had been authorized to close the agreement for respondent, refused this demand. The matter was the subject of considerable discussion. At length Manning promised to make another investigation and if he found that the claim of Dobbs that his,conduct had nothing to do with the Bowes’ troupe having turned back their bus tickets and continued their journey by rail Manning would put Dobbs back to work. The Union representatives say that after several days discussion, and to get the agreement closed, Manning agreed to reinstate Dobbs unconditionally. It is conceded that the representatives of the Union had been instructed by their attorney that the agreement would not be binding on any matter not reduced to writing and embodied in it. When asked to explain how they came to disregard, this advice of their attorney they said Manning was known as a man of his word and enjoyed the high esteem of the workers, and they relied on his promise. Manning denies that he made the unconditional promise to reinstate Dobbs, but admits that he did agree to make an additional investigation, and if facts were as Dobbs claimed, he would restore him to the service. While Van Avery and Dobbs, in their direct examination, make the statement that the agreement to reinstate Dobbs was unconditional, each of them on cross-examination admit that the conference closed with the understanding that Manning was to make a further investigation. This would have been unnecessary if Dobbs had been unconditionally promised reinstatement. The following are excerpts from the cross-examination of witness Van Avery: “Q. (By Mr. Shields) Now, Mr. Van Avery, in order to refresh your memory, don’t you recall that, after this agreement (of March 17, 1936) was signed, and at the time the agreement was signed, Mr. Manning told you that he expected to make further investigation into the Dobbs case, and that he would make this trip over there to make that investigation? A. That he was going to contact the rail agent, or an agent over there at Nampa, and that he was coming through there by automobile, and if the report that Mr. Dobbs had as to this man’s attitude was sustained, Dobbs, would go back to work on Saturday. “Q. Then, there was at least that condition to Mr. Manning’s statement, that he would make that investigation? A. To see if the Agent’s statement at Nampa corresponded with Mr. Dobbs. “Q. You knew at that time that Mr. Manning didn’t have to go to Boise in order that Dobbs might go back to work? You knew that he could let Mr. Gormley know without going over there and taking Mr. Dobbs in to him and stating the matter to him personally? A. Yes, but that was Mr. Manning’s own suggestion. “Q. And the purpose of going back was in order to check up on some of the statements that Mr. Dobbs had made? A. It was that one statement. “Q. It was limited to that one statement? A. As far as I know, yes. * * * “Q. (Mr. Shields) Then you left it up to him (Mr. Manning) to make the investigation, whatever it was, and then if he did not find the facts as contended for by you, then he was not to reinstate Mr. Dobbs? A. No, sir; that was not entered into. “Q. I still don’t get your point as to how Mr. Dobbs' reinstatement was to be effected. A. He was to see the agent there around Nampa to get the statement that has been entered into, for this report to verify that statement. He was to get that report to see if it was true, and which in his own mind, he felt was true. “Q. lie would be reinstated? A. That he would be put back to work the following Saturday, and he told him to meet him here on Thursday. “Q. What would happen if he found it was not true? A. There was nothing discussed as to that. * * * “Q. The point Mr. Manning wanted to decide was whether or not this troupe can-celled their stage tickets after boarding Mr. Dobbs’ stage because of difficulty that Mr. Dobbs had with them, or because they had taken the train transportation because of a difference in time schedule? Wasn’t that the discussion, that — wasn’t the discussion as to the investigation of that fact? A. It seems to me there was something like that.” The cross-examination of Mr. Dobbs also furnishes no support to the Board’s finding. We quote the following: “Q. And Mr. Manning wanted to satisfy himself as to which version of this transaction was correct? A. That was the impression that I got. “Q. Your version was that Kennedy was a man that had caused all this disturbance, that the fault was his, that you were in the clear; and Kennedy’s version was that the fault was all yours and that he was in the clear ? A. It seemed, yes, it was that at that time. “Q. You realized yourself, did you not, that it would be a serious matter for a troupe like the Major Bowes Troupe to cancel their passage by stage because of some mi